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How would you overcome this IRS motion to dismiss?

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  • fastmuscleman
    How would you overcome this IRS motion to dismiss? I want to produce a slam dunk response to this motion on a point by point basis, so that I can learn how to
    Message 1 of 1 , Jun 3, 2004
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      How would you overcome this IRS motion to dismiss?
      I want to produce a slam dunk response to this motion on a point by
      point basis, so that I can learn how to perfect my petition & or
      motions.
      Please send me any proven suggestions & how you overcame their
      arguments or motions so that the court does not grant the IRS there
      motion.

      MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN
      BE GRANTED

      RESPONDENT MOVES, pursuant to the provisions of Tax Court Rule 40,
      that this case be dismissed for failure to state a claim upon which
      relief can be granted, and that the court find in its order that
      there are due from petitioner deficiencies in income tax and
      penalties and/ or additions to tax for the years and in the amounts
      set forth in the two notices of deficiency for tax years 2000 and
      2001, dated February 11, 2004, upon which notices this case is based.

      1. In this section the IRS mentions that I received unreported
      amounts which they list for each year & claims that I am liable to
      additions to tax under IRC 6651(a)(1) & IRC 6654(a)

      2. Tax Court Rule 34(b) provides in pertinent part that the petition
      in a deficiency action shall contain "clear and concise assignments
      of each and every error which the petitioner alleges to have been
      committed by the Commissioner in the determination of the deficiency
      or liability¬Ö Any issue not raised in the assignment of errors shall
      be deemed to be conceded."

      3. Petitioner does not allege any justiciable error with respect to
      respondent's determination in the notices of deficiency, and no
      justiciable facts in support of each error are set forth in the
      petition as required by Tax Court Rule 34 (b) (4) and (5).

      4. Petitioner makes no factual claims of error in his petition but
      argues only law and legal conclusions.

      5. Petitioner's basis for the positions taken regarding the 2000 and
      2001 tax years include arguments that the Internal Revenue Service
      ("Service") has no jurisdiction to tax petitioner that the Service
      has violated petitioner's rights by forcing him to petition the Tax
      Court, and that petitioner is not subject to Title 26 of the United
      States Code.

      6. No justiciable error has been alleged in the petition with
      respect to the Commissioner's determinations set forth in the
      notices of deficiency and no facts in support of any such error are
      apparent therein. The absence in the petition of specific
      justiciable allegations of error and of supporting facts permits
      this court to grant respondent's motion.
      Tax Court Rule 123(b). White v. Commissioner, T.C. Memo. 1981-609;
      Klein v. Commissioner, 45 T.C. 308 (1965); Goldsmith v.
      Commissioner, 31 T.C. 56 (1958).

      7. The document filed as the petition does not comply with the Rules
      of the Tax Court as to the form and content of the petition and
      fails to state a claim upon which relief can be granted.

      8. Respondent has attempted to reach petitioner by telephone, but
      has been unable to contact petitioner as to whether or not he
      objects to the granting of this motion.
      WHEREFORE, it is prayed that this motion be granted.
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