Re: James needs help with the IRS
- 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!
- 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.