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James needs help with the IRS

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  • legalbear7
    From: AK Seeker [mailto:ak_seeker@yahoo.com] Sent: Monday, March 02, 2009 3:58 AM To: legalbear@legalbears.com Subject: I read the checklist. (and I have a
    Message 1 of 6 , Mar 6, 2009
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      From: AK Seeker [mailto:ak_seeker@...]
      Sent: Monday, March 02, 2009 3:58 AM
      To: legalbear@...
      Subject: I read the checklist. (and 'I have a question'/Help Request Form.)

       


      What state does your legal issue spring from? 

                      I am in Alaska, but the issue is with IRS.

       

      What are the facts of your case?

                      I submitted a 1040X for 2002, correcting the original I filed in 2003 (the 1040X was a CtC filing). The IRS fined me $500 for a frivolous return. I then sent in a 843 Request for Abatement, since none of my responses seemed to be having any effect,  and received a $5000 fine for a 'frivolous submission'. A lien was placed on my 'property and rights to property', but was removed when my total refund for all money withheld in 2006 (in the event of a tax liability arising for that year) was reduced by the amount of the penalties and accrued interest. I had a Collection Due Process Hearing (CDPH), but Bruce (the hearing officer) didn't have a copy of the offending return in his possession during the (telephonic) hearing. He offered, and I accepted, a followup hearing, and I provided him with a list of questions asking specifics as to what made the return 'frivolous', and he said he'd try to answer them. When I called back for the followup hearing, he informed me that, after consulting with his supervisor, he was not required to discuss law and it's interpretation (I told him it didn't need interpreting, it was written in English ), and his decision was that the IRS followed proper procedure in the assessment.

       

      I filed a petition with the tax court and was assigned a docket number. Then I got a call from one of the Department of Justice (DOJ) attorney's saying the tax court couldn't provide any relief, a 'Failure to state a claim' situation, since the penalties had already been paid. He asked, and I agreed (maybe to quickly??) for my concurrence with his motion to dismiss, as it had now progressed to a suit for refund. 

       

      What research you have already done on your issue?

                      Read lots of Barry's postings and watched all the video's I could find on his site. Also spent a lot of time on the Lost Horizon's web site reading and asking questions. Also sent off some FOIA's asking for various documents, with limited success (don't have the 'Golden FOIA's' yet.

       

      What you are thinking about doing and why?

                      I'm thinking of calling the DOJ attorney and removing my concurrence for his motion to dismiss, because I'm not sure he was correct in his assertion that the tax court could offer no relief. It would seem, after listening to Barry's videos, the the Tax Court would have jurisdiction to address a procedural error on IRS' part and have authority/power to effect a remedy. That would depend on the expertise of Barry and the folks at tips_and_tricks.

       

                      If pursuit of the Tax Court case was a no-go, I was thinking of suing for a refund in Federal(?) District Court, since the 'penalties' have already been taken from me.

       

      Do you think, from the foregoing dissertation, that I have any grounds for thinking I (and the DOJ attorney) was wrong to accede to his request for concurrence?

       

    • John H.
      In short, at this point, in my humble opinion, your best bet is to petition the tax court requesting that the court make a decision as to whether the return
      Message 2 of 6 , Mar 6, 2009
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        In short, at this point, in my humble opinion, your best bet is to petition the tax court requesting that the court make a decision as to whether the return that you filed was in fact "frivolous" or not.
         
        Before hand, perform your due diligence regarding "frivolous" tax returns. Make up another return(s) for the same year(s) knowing beforehand that they are definitely not "frivolous." One CtC warrior went to court when the IRS claimed the return as frivolous and won. This return was posted on the CtC site.
         
        If the judge finds your previous return(s) as frivolous, then give the judge the newly made returns and ask him if they are valid. If he says yes, then present the original to the DOJ in front of the judge. Have a copy for yourself.  I MUST ADMIT, I am not familiar with court procedure and this tactic may not work as stated. BUT, if you can get the judge to look at the newly made returns and he claims them valid, you are home free. I cannot remember the particular statute but it says something like this. 'If the "taxpayer" presents evidence during a hearing then that evidence lays the burden of proof back onto the government.'
         
        My concern is that you bargained with the DOJ. This may give them reason to think that you did not believe your original amounts were as stated. This is prima facie evidence of willfulness. YOU CANNOT backpedal and compromise with the IRS or DOJ after you start something like this. Either get out now, or stick to your guns and take it all the way.
         
        Also, you have no access no U.S. District court until you go through tax court and they find against you. Tax court is part of exhausting your administrative remedies to gain access to District.
      • John H.
        ATTACHED YOU WILL FIND COPIES OF TREASURY DEPARTMENT MEMORANDUMS CONCERNING FRIVOLOUS TAX RETURNS. WHAT I GATHER IS THAT THE IRS DOES NOT ENTERTAIN
        Message 3 of 6 , Mar 6, 2009
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          ATTACHED YOU WILL FIND COPIES OF TREASURY DEPARTMENT MEMORANDUMS CONCERNING FRIVOLOUS TAX RETURNS. WHAT I GATHER IS THAT THE IRS DOES NOT ENTERTAIN CONSTITUTIONAL OBJECTIONS TO TAXATION BEING ATTACHED TO RETURNS. BASICALLY ASIDE FROM THAT WHAT CONSTITUTES A FRIVOLOUS RETURN IS IF THERE IS NOT ENOUGH INFORMATION TO DETERMINE TAX LIABILITY, THEN THE RETURN IS FRIVOLOUS. DO NOT CONFUSE THAT WITH A 0 RETURN ASSUMING VALID AND PROPER REBUTTALS ARE IN PLACE.  IN OTHER WORDS, IF NECESSARY INFORMATION IS LEFT BLANK, THEN THE RETURN CAN BE DEEMED FRIVOLOUS. IF INFORMATION IS INCOMPLETE THEN THE RETURN CAN BE DEEMED FRIVOLOUS. IT SEEMS THAT A SIMPLE "-" (DASH) WOULD INDICATE THAT A LINE HAS BEEN CONSIDERED BY THE FILER AND IS DEEMED AS NOT APPLICABLE. SORRY FOR THE ALL CAPS! IT IS JUST EASIER FOR ME TO TYPE THAT WAY!
        • Robert Stephens
          DO NOT petition the tax court unless you do it under special appearance , else you are immediately under their jurisdiction and you will lose. You also need
          Message 4 of 6 , Mar 7, 2009
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            DO NOT petition the tax court unless you do it under "special appearance", else you are immediately under their jurisdiction and you will lose.

            You also need to default everyone connected with your case. Learn the procedure on
            "the_great_debate" forum. 

            --- On Fri, 3/6/09, John H. <otoman@...> wrote:

            From: John H. <otoman@...>
            Subject: Re: [tips_and_tricks] James needs help with the IRS
            To: tips_and_tricks@yahoogroups.com
            Date: Friday, March 6, 2009, 5:24 PM

            In short, at this point, in my humble opinion, your best bet is to petition the tax court requesting that the court make a decision as to whether the return that you filed was in fact "frivolous" or not.
             
            Before hand, perform your due diligence regarding "frivolous" tax returns. Make up another return(s) for the same year(s) knowing beforehand that they are definitely not "frivolous." One CtC warrior went to court when the IRS claimed the return as frivolous and won. This return was posted on the CtC site.
             
            If the judge finds your previous return(s) as frivolous, then give the judge the newly made returns and ask him if they are valid. If he says yes, then present the original to the DOJ in front of the judge. Have a copy for yourself.  I MUST ADMIT, I am not familiar with court procedure and this tactic may not work as stated. BUT, if you can get the judge to look at the newly made returns and he claims them valid, you are home free. I cannot remember the particular statute but it says something like this. 'If the "taxpayer" presents evidence during a hearing then that evidence lays the burden of proof back onto the government.'
             
            My concern is that you bargained with the DOJ. This may give them reason to think that you did not believe your original amounts were as stated. This is prima facie evidence of willfulness. YOU CANNOT backpedal and compromise with the IRS or DOJ after you start something like this. Either get out now, or stick to your guns and take it all the way.
             
            Also, you have no access no U.S. District court until you go through tax court and they find against you. Tax court is part of exhausting your administrative remedies to gain access to District.

          • rshaw3377
            I feel so compelled to interject my thoughts for James because I am a CtC member also. To date, I have successfully halted all frivolous penalties and managed
            Message 5 of 6 , Mar 7, 2009
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              I feel so compelled to interject my thoughts for James because I am a
              CtC member also. To date, I have successfully halted all frivolous penalties and managed to have more than $400K of liens reduced to zero. I must admit it wasn't an easy task but I held their own law against them--they submitted!

              My point for James is this: The Attorney for the DOJ is,indeed, correct. You don't have a claim upon which relief can be granted because the IRC6702 penalty is not a Regulation. It was never approved for enforcement.The IRS is using it only as a scare tactic. Upon threat of litigation, they will take the technical high road without telling you why your claim was in the wrong court.

              I would not petition the Tax Court because it is the improper venue for your relief. The Tax Court does not have subject matter jurisdiction regarding Employment taxes, or misc excise taxes collected by return. Your voluntary contributions would fall under the misc excise taxes by return, and employment (for unlearned IRS agents.) The citation is as follows:

              (According to 26 CFR § 601.102(a) (1) (b) (2) (i) (ii) Classification of taxes collected by the IRS. Sub-section (2) taxes not within the jurisdiction of the U.S. Tax Court are (i) Employment taxes (ii) Miscellaneous excise taxes collected by return. Employment also refers to wages.)

              With respect to the IRS 6702

              Here is my position: (part of a letter I sent the IRS)

              1. IRC 6702 LACKS REGULATORY AUTHORITY.


              Although these Section 6702 (c) civil penalties in the amount of $5,000 are the basis of both these collection efforts, there is no REGULATORY AUTHORITY for the statute:

              a) Did you know pursuant to 44 U.S.C.A. §§1504-1507, before a citizen of the several states of the United States can be bound by, or adversely affected by a law or regulation, any law having general applicability to such Citizens, must be published in the Federal Register? Such laws and regulations are then categorized pursuant to their applicable Title in the Code of Federal Regulations (CFR).

              b) Regulatory authority is found under 26 U.S.C. §7805(a) "…the Secretary shall prescribe all needful rules and regulations for the enforcement of this title." The Internal Revenue Code is not self-executing. Without an implementing regulation, applicable to a particular type of tax, a statute has no force of law, and imposes no duties or penalties.

              c) It appears IRC Section 6702 was NEVER implemented into a regulation by the Secretary. Could it be you are misapplying the penalty intended for CERTAIN "internal" purposes only?

              d) Even the Supreme Court discussed how penalties can be imposed: in Calif. Bankers Assoc. v. Shultz, 416 U.S. 25, 44, 39 Led2d 812, 94 S Ct 1494, the court stated, "…The Act's [IRC] civil and criminal penalties attach only upon the violation of a regulation promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone…only those who violate the regulations (not the Code) may incur civil or criminal penalties, it is the actual regulation issued by the Secretary of the Treasury and not the broad authorizing language of the statute, which is to be tested against the standards of the 4th Amendment."

              Unless you are able to furnish proof that Section 6702 is a REGULATION promulgated by the Secretary, your automated enforcement and claim are lawless and defective.

              Finally, I would threaten them with Title 18 Section 1001 which makes it a criminal offense for anyone in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, who knowingly and willfully (3)makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. (1) And (2) may also apply.

              Read the Code section. It is absolutely the best threat we can impose upon them because we know they are mailing fraudulent notices and making frivolous claims. Did you ever view your lien on your credit report? I was shocked to find that there was a claim amount and a liability amount. Under the claim amount there is a dollar amount, but under the liability amount only (NA). This tells me it is truly bogus: an admission of it not being validated or verified. Ha!


              Rose
            • tthor.geo
              I THINK [don t know, but suspect] that the only place to go after Tax Court is Court of Federal Claims [or MAYbe the Court of Internatinal Trade] You would
              Message 6 of 6 , Mar 7, 2009
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                I THINK [don't know, but suspect] that the only place to go after Tax Court is Court of Federal Claims [or MAYbe the Court of Internatinal Trade] You would claim as damages all the money IRS has cost you and time wasted in trying to comply. [I have NOT done this.]

                A FOIA Request for the Transcript of the CPD Hearing is also a fun idea.

                "John H." <otoman@...> wrote:
                >
                > In short, at this point, in my humble opinion, your best bet is to petition the tax court requesting that the court make a decision as to whether the return that you filed was in fact "frivolous" or not.
                >
                > Before hand, perform your due diligence regarding "frivolous" tax returns. Make up another return(s) for the same year(s) knowing beforehand that they are definitely not "frivolous." One CtC warrior went to court when the IRS claimed the return as frivolous and won. This return was posted on the CtC site.
                >
                > If the judge finds your previous return(s) as frivolous, then give the judge the newly made returns and ask him if they are valid. If he says yes, then present the original to the DOJ in front of the judge. Have a copy for yourself. I MUST ADMIT, I am not familiar with court procedure and this tactic may not work as stated. BUT, if you can get the judge to look at the newly made returns and he claims them valid, you are home free. I cannot remember the particular statute but it says something like this. 'If the "taxpayer" presents evidence during a hearing then that evidence lays the burden of proof back onto the government.'
                >
                > My concern is that you bargained with the DOJ. This may give them reason to think that you did not believe your original amounts were as stated. This is prima facie evidence of willfulness. YOU CANNOT backpedal and compromise with the IRS or DOJ after you start something like this. Either get out now, or stick to your guns and take it all the way.
                >
                > Also, you have no access no U.S. District court until you go through tax court and they find against you. Tax court is part of exhausting your administrative remedies to gain access to District.
                >
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