Loading ...
Sorry, an error occurred while loading the content.

Case closed? - Looks like a win

Expand Messages
  • David Toppin
    In early 2010 I was ‘ordered’ to a ‘show cause’ hearing before the U.S. District Court for the District of New Hampshire to show cause why I
    Message 1 of 3 , Feb 14, 2013
    View Source
    • 0 Attachment
      Case closed?

       

      In early 2010 I was ‘ordered’ to a ‘show cause’ hearing before the U.S. District Court for the District of New Hampshire to show cause why I shouldn’t be compelled to go before the IRS for an audit of my books and records.  

      I engaged Paul’s services and he instructed me to return the defective court order to the Court, marked Refused for Causes, and identifying the following causes:

      1. Insufficient Process: No Seal of Court and No Signature of Clerk
      In violation of:

      • Federal Rules of Civil Procedure (FRCP) Rule 12(b)(4) and
      • FRCP Rule 4
      • 28 U.S.C. § 1691


      2. Lack of Subject Matter Jurisdiction per FRCP Rule 12(b)(1)

      3. Lack of Personal Jurisdiction per FRCP Rule 12(b)(2)

      4. Failure to State a Claim per FRCP Rule 12(b)(6)

      I returned the irregular ‘order’ as instructed the day before the scheduled hearing.  The government NEVER RESPONDED to it...and a Magistrate judge recommended (in my absence) that I should be compelled to go to an audit hearing.  The game was on.  

      There ensued several more “irregular” or defective “orders” for me to appear before the USDC, none of which bore the required Seal or Signature per FRCP Rule 4 AND 28 USC 1691.  I challenged personal jurisdiction in a motion to dismiss. The government argued that, according to the 11th Circuit Court of Appeals, ruling in a Virgin Island case (which territory is actually in the 2nd District’s jurisdiction!), that the judge could simply over-rule the Federal Rules and sign a court writ and thereby establish in personam jurisdiction.  He hadn’t “signed” anything – only his typed name appeared.  The government never attempted to explain how a judge may also overlook statutory requirements as well, or how a U.S. Attorney may represent the “United States of America”, or how the District Court order overrules controlling case law from the Supreme Court of the United States that specifically bars the government from compelling an individual’s records (but not those of a corporation, etc), or how a District Court may overlook the the fact that the statute cited by the IRS as its authority to compel production was a) editorial rewritten by the House Revision Committee and DOES NOW NOT say what that actual Statute at Large that it’s based on says and b) is enforceable under the CFR by the BATF for excise taxes on excisable commodities, with which I have no relation.  Over the course of three years, The government addressed NONE of these argument, ever.

      QUESTION 1: What SHOULD the government have done in response to the returned order, way back in 2010? What statutory provision required the U.S. Attorney and/or the Court to respond to that return for causes, if any?

      Today I received a notice from the District Court that says the judge ordered the case closed on Feb 4th and that it was in fact entered as closed on the 5th.  
      QUESTION 2: Does “case closed” mean what it seems to mean – i.e., that this case is now over and done with and that the government has no more recourse to raise issues over fees, etc. that it hasn’t already filed for?

      Anyone?



       
       

    • Randy Garriss
      Although this is a little different, my experience has been upon obtaining the Register of Actions associated with a case that the term end of case is
      Message 2 of 3 , Feb 15, 2013
      View Source
      • 0 Attachment
        Although this is a little different, my experience has been upon obtaining the "Register of Actions" associated with a case that the term "end of case" is found.  This entry may not preclude someone from re-opening the file by filing new matter or on the Court's own initiative.  I have obtained Register of Actions at various stages during the pendency of a case and at each juncture the terms "end of case" were found at the bottom of the same.
         
        Also law enforcement entities often close cases where evidence is insufficient only to later re-open them.
         
        However, the important thing to be concerned with in your case is whether there was any kind of judgment that issued before the notice of case closed was issued.  If the Court ignored all your attempts to have your issues recognized, but along the way issued an adverse order/determination, then that judgment/order may serve as a basis for some future action against you in spite of your perceptions as to its legitimacy.  It could be argued that such a judgment is legitimate because you failed to properly follow procedure to have it set aside in a timely manner and it became the law of the case.
         
        If no such judgment exists then "case closed" is effectively a win for you.
         
        Hope this helps,  Randy
      • lawfulzone
        File a motion to dismiss with prejudice per FRCP 41(b) Involuntary Dismissal. If granted it would be a final order.
        Message 3 of 3 , Feb 15, 2013
        View Source
        • 0 Attachment
          File a motion to dismiss with prejudice per FRCP 41(b) Involuntary Dismissal.

          If granted it would be a final order.
        Your message has been successfully submitted and would be delivered to recipients shortly.