Here is some very good advice that I have used and it works.
You need to change the subject line Doug, unless you are talking about a
Summons. Have you done a Collection Due Process hearing? If not review
my messages on the hearing, how to set it up and how to make your own final
determination on the issues. If your case was dismissed in tax court, then
they admitted to the facts of your Petition so show the IRS what they admitted
to. Why didn't you do a writ of error on the tax court judgment, that is
where the real judgment lies? It is likely you never got a real final judgment
out of the tax court.
You have basically two choices, you can send a demand for CDPH burried in
a complaint that they admitted to the facts of your petition or you can use
their form 12153. If you bury it, then they will likely proceed without
reading your complaint and when you go back to tax court and reopen your
case, you can motion to dismiss based on lack of due process. If you send
them the form, they will likely give you a due process hearing and you can
bring up the fact they dismissed thereby admitted the facts at law.
In ruling upon a Rule 56 motion, "a District Court must resolve any factual
issues of controversy in favor of the nonmoving party" only in the sense
that, where the facts specifically averred by that party contradict facts
specifically averred by the movant, the motion must be denied.....As set
forth above, Rule 56(e) provides that judgment "shall be entered" against
the nonmoving party unless affidavits or other evidence "set forth specific
facts showing that there is a genuine issue for trial." The object of this
provision is not to replace conclusory allegations of the complaint or answer
with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986)...... Rather, the purpose of Rule 56 is to
enable a party who believes there is no genuine dispute as to a specific
fact essential to the other side's case to demand at least one sworn averment
of that fact before the lengthy process of litigation continues. Lujan v
NWF, 497 U.S. 871, 888 (1990).
The District Court granted the respondent's motion to dismiss for failure
to state a claim on which relief could be granted and the Court of Appeals
affirmed. 324 F.2d 165 (C.A.7th Cir.). We reverse the judgment below.
Taking as true the allegations of the complaint, as they must be on a motion
to dismiss, the complaint stated a cause of action, and it was error to dismiss
it. See Pierce v. LaVallee, 293 F.2d 233 (C.A.2d Cir.); Sewell v. Pegelow,
291 F.2d 196 (C.A.4th Cir.). Cooper v. Pate, 378 U.S. 546 (1964)
The rule annotated says:
"The defendants' motion to dismiss for failure to state a claim
unsupported by affidavits or depositions is incomplete because it
requests this Court to consider facts outside the record which have
not been presented in the form required by Rules 12(b)(6) and 56(c).
Statements of counsel in their briefs or argument while enlightening
to the Court are not sufficient for purposes of granting a motion to
dismiss or summary judgment. Trinsey v. Pagliaro, D. C. Pa. 1964, 229 F.
They are testing you Doug to see if you are going to fold on your default
and let them take your money. You have to enforce your default on them at
a CDP hearing and make them eat your default and their admission to the facts
of your petition, if it was verified as true.