United States Tax Court
Beverly Patriot ) DOCKET #____________________
) Petition for Lien or Levy Action
v. ) (Collection Action)
Commissioner Internal Revenue ) Petition for Re-Determination of
Respondent ) Notice of Determination on CDPH
Petitioner Beverly S. Patriot hereby petitions the US Tax Court for a Re-determination
of the Notice of Determination, dated May 9, 2007, based upon the following reasons:
- Pursuant to IRC §§ 6320 and 6330, Petitioner requested a face-to-face Collection
Due Process Hearing for the tax period 1993 within the 30-day time period allowed
by statute. The IRS Atlanta Appeals Office issued a “Notice Of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330” dated May 9, 2007. This denied
Petitioner’s lawful request and is hereby appealed. To be filed separately, is the
supplement to this petition which will discuss the individual particulars in this
- Congress has set forth three pre-conditions for Collection Due Process Hearing (herein
referred to as CDPH):
- Petitioner must make request.
- Petitioner must make request in a timely manner, 30 days.
- Petitioner must state the purpose of the hearing which includes collection alternatives,
procedure irregularities, spousal relief and tax liability in some cases.
- Petitioner complied with all of these. Further, the IRS has an extra precondition
for taxpayer not to raise political, Constitutional and religious concerns. Petitioner
complied with this extra requirement.
- The IRS has other irregular and interesting preconditions such as filling out forms
and submitting a payment schedule. These requirements are impossible since Petitioner
does not know what the IRS wants until she meets with the IRS. Petitioner is not
required to do these, and did not. The elected representatives of the People did
not vote these mandatory actions.
- The IRS illegally and wrongfully did not allow an in-person hearing and violated
Petitioner’s statutory and administrative due process rights. Petitioner’s rights
under the administrative procedure code include an opportunity to appear before
the fact-finding tribunal. The U.S. Tax Court has held many times that the law requires
an in-person hearing. Marett v. CIR, Docket # 4048-061, decided 7 Jul 06; Shell
v. CIR, Docket # 20188-05L, decided 31 May 06; Nelson v. CIR, Docket # 13212-05L,
decided 7 Nov 05.
- The definition of a hearing found in:
- Merriam-Webster's Dictionary of Law - 1996: A proceeding of relative formality at
which evidence and argument may be presented on the matter at issue to be decided
by a person or body having decision-making authority (compare trial) Note: The purpose
of a hearing is to provide the opportunity for each side of a dispute, and esp.
a person who may be deprived of his or her rights, to present its position. A hearing,
along with notice, is a fundamental part of procedural due process. Hearings are
also held, as for example, by a legislature or an administrative agency, for the
purpose of gathering information and hearing the testimony of witnesses.
- Blacks Law Dictionary - 6th Edition: A proceeding of relative formality (though
generally less formal than a trial), generally public, with a definite issues of
fact or law to be tried, in which witnesses are heard and evidence presented.It
is a proceeding where evidence is taken to determine issue all fact and rendered
decision on basis of that evidence. People v. Ivenditti, 276 C.A.2d 178, 80 Cal.
Rptr.761, 762.The parties proceeded against or otherwise involved have right to
be heard, in much the same manner as a trial and such proceedings may terminate
in final order.See e.g. 5 U.S.C.A.§ 556.
- Petitioner disagrees with all of the Notice of Determination except as admitted
- In the case of Schulz II, the U.S. Court of Appeals for the 2nd Circuit issued a
definitive ruling: Independent judicial review is required for all IRS collection
enforcement activities. Now, the IRS is like landlords, banks and loan companies
who need a court hearing before state action. The Debtor is entitled to an independent
judge to scrutinize the enforcement activities of all collection agencies. Harsh
actions are no longer allowed without the acquiescence or intervention from a judge.
A judge is defined as holding a lifetime appointment with no diminishment in salary.
Schulz v. IRS, 2nd Circuit, June 2005, 413 F.3d 297(2d)NY, 95 A.F.T.R.2d 2005-3007,
2005 WL 152090 Petitioner herby requests independent review of the administrative
action. Please send the appropriate and necessary forms for Petitioner to comply
with the mandate of the 2nd Circuit in Schultz II, supra.
- Petitioner requested a hearing (meaning a face to face hearing) within the time
period and therefore is entitled to an in-person hearing.Under IRC §§6320 and 6330,
Petitioner is entitled to a CDPH at a location convenient to her. Petitioner was
not given the opportunity to raise any relevant issue relating to the unpaid tax
or the proposed levy at a hearing in accordance with IRC §§ 6320 and/or 6330(C).
At the in-person hearing, which must be scheduled, Petitioner will be present in
person and bring with her a tape recorder, witness and a representative. Please
provide assistance in passing the tape recorder through security.
- Petitioner’s rights were violated. The Notice of Determination should be overturned,
and a new proper CDP hearing should be scheduled.The Settlement Officer was not
a person authorized to hold a CDPH. THE UMBRELLA OF THE DUE PROCESS CLAUSE OF THE
U.S. CONSTITUTION, 5TH AND 14TH AMENDMENTS
- Petitioner seeks judicial review of the IRS tax assessment under the due process
clause of the United States Constitution.No government agency can take any action
against any Citizen absent judicial intervention. Government agents are not allowed
into people's homes or people's pocketbooks without review by the independent judiciary.
- The seizure actions of virtually all other federal agencies are subject to judicial
review. A hearing must be held prior to the agency seizing someone's property. In
Fuentes v. Shevin, 407 U.S. 67, 80, 96-97 (1972), the U.S. Supreme Court recognized
"the right to a prior opportunity to be heard before chattels are taken from their
possessor." "The appellees do not suggest that these [contractual] provisions waived
the appellants' right to a full post-seizure hearing to determine whether those
events had, in fact, occurred and to consider any other available defenses. By the
same token, the language of the purported waiver provisions did not waive the appellants'
constitutional right to a pre-seizure hearing of some kind... We hold that the Florida
and Pennsylvania prejudgment replevin provisions work a deprivation of property
without due process of law insofar as they deny the right to a prior opportunity
to be heard before chattels are taken from their possessor... Since the essential
reason for the requirement of a prior hearing is to prevent unfair and mistaken
deprivations of property, however, it is axiomatic that the hearing must provide
a real test. [D]ue process is afforded only by the kinds of `notice' and `hearing'
that are aimed at establishing the validity, or at least the probable validity,
of the underlying claim against the alleged debtor before he can be deprived of
his property...." Sniadach v. Family Finance Corp., at 343 (Harlan, J., concurring).
See Bell v. Burson, at 540; Goldberg v. Kelly, at 267.
- In Sniadach v. Family Fin. Corp. of Bay View, 395 U.S. 337, 342 (1969), the U.S.Supreme
Court addressed “the issue of whether a post-seizure hearing is meaningful in terms
of due process and deciding that a pre-deprivation notice and opportunity to be
heard is necessary absent an important governmental or public interest to the contrary”
under specific circumstances.
- Recent investigations of the problem have disclosed the grave injustices made possible
by prejudgment garnishment whereby the sole opportunity to be heard comes after
the taking [as noted by Congressman Sullivan, Chairman of the House Subcommittee
on Consumer Affairs, who held extensive hearings on this and related problems]...
Thus, the U.S. Supreme Court ruled that where the taking of one's property is so
obvious, egregious, and sinister in effect, it needs no extended argument to conclude
that, absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works, 237
U.S. 413, 423), this prejudgment garnishment procedure violates the fundamental
principles of due process.
- Until Schulz II, supra, the IRS had been able to conduct seizures without judicial
review.The recent ruling changed how the IRS must comply with judicial review, including
how it conducts CDP hearings. Now, the IRS also is finally constrained by the "fundamental
principles of due process", and its seizure attempts are subject to review by the
independent judiciary in order to protect the rights of Citizens.
- In conclusion, Petitioner requests independent judicial review of IRS’s enforcement
actions.The courts have a long string of cases requiring a judicial intervention
under the due process clause before state action against a Citizen. Therefore, this
court should schedule a hearing to review or scrutinize the intended IRS police
state activities. Jun07
WHEREFORE, Petitioner requests that the Notice of Determination be overturned
and that a new, proper CDPH be scheduled.
June 1, 2007
Beverly Patriot, pro se