IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
UNITED STATES OF AMERICA ) Civil No.05-CV2xxxx ) Plaintiff, ) v. ) Defendant’s Motion to Dismiss Under Rule 9(b) ) (part1) ROBERT BARNWELL CLARKSON ) Individually and d/b/a THE PATRIOT ) NETWORK, ) ) Defendant. )
Defendant, Robert Barnwell Clarkson, Patriot Network appearing specially and not generally, hereby makes the following motion.
1. The Defendant moves the Court to dismiss the complaint because it contains insufficient information to allow the Defendant to know what he is being accused of.
2. The Plaintiff’s complaint accuses the Defendants of making statements that are “false” or “fraudulent” or “false and fraudulent” no less than fourteen times. The Plaintiff has not alleged that one person has purchased something from the Defendants which was not delivered to them. The Plaintiff does not specify what it is about the Defendant’s conduct that in fact constitutes fraud. There is no complaining party who has been defrauded.
3. A fair and reasonable reading of the complaint suggests that most, if not all, of the Plaintiff’s allegations that the Defendants made statements which were “false or fraudulent” were, in reality, simply instances where the Plaintiff disagreed with the interpretations of Clarkson’s opinions expressed in connection with the operations of the IRS.
While the Plaintiff’s opinions of the Defendant’s actions may be sincere and deeply held it is still a great unsubstantiated leap to dismiss them outright as “false or fraudulent.”
4. In several recent years the IRS has maintained toll free telephone numbers where the public may call the IRS for information and advice on tax laws. The advice given by employees of the IRS has been shown to be incorrect about forty percent of the time. This has been amply documented in mainstream tax information circles and is a case of “common knowledge” that is, for once, exhaustively proven. (A Google search for irs helpline "incorrect information" brings up articles on it from MSN, Libertarian Party etc.) However, no reasonable person would attribute this discrepancy to those IRS employees engaging in conduct that was “false or fraudulent.”
The more likely explanation is that federal income tax laws are extremely technical, complex, and fraught with legalistic language euphemistically referred to as terms of art. Similarly, major news organizations have supplied the same information to IRS employees in different districts whose job it was to assist taxpayers in filing returns. In each IRS district the computations suggested by the IRS employees, trained and employed for this purpose, were different from one revenue district to the next. Again the reasonable explanation for these discrepancies is not fraud but rather the extreme complexity of the internal revenue laws.
5.Therefore, the Plaintiff has not shown a single specific instance of any “fraud” on the part of the Defendant. They have merely asserted instead that they disagree with one or more of the Defendants’ conclusions. Even reasonable people who are trained and educated in the law will often come to opposing conclusions about some point of law. When Judge John Roberts was confirmed before the U. S. Senate as the Chief Justice of the United States, much was made of his experience in arguing forty one cases orally before the Supreme Court; interestingly, in each of those forty one cases there was a well educated and qualified lawyer arguing against which ever position Chief Justice Roberts was asserting. Yet no one questions that the lawyers who argue cases before the United States Supreme Court are among the best, brightest and most able legal minds in our land.
6.It is simply ludicrous to attempt to convert a disagreement over the technical minutiae of federal income tax law into “fraud” without showing that any of the Defendant’s alleged “customers” has in fact complained that he was defrauded.
WHEREFORE, the Defendant moves that the complaint be dismissed, with prejudice, for violating the requirements of Rule 9(b) of the Federal Rules of Civil Procedure which require that “In all averments of fraud of mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Clearly the Plaintiff’s complaint now before the court fails utterly and completely to meet with these clear provisions of FRCP Rule 9 (b) supra.
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that service of the foregoing MOTION has been made upon the following parties by depositing a copy in the United States mail, postage prepaid this day above mentioned.
Trial Attorney, Tax Division–DOJ
Post Office Box 7328
Washington, D.C. 20044
Telephone: (202) 514-4679
George J. Contis, AUSA
Post Office Box 10067
Greenville, SC 29603