For the Eleventh Circuit
On Appeal From the Judgment of the
The Middle District of
Brief of Appellant
Ernest Patriot, pro se
Table of Contents
1. Table of Contents i
2. Statement Regarding Oral Argument i
3. Disclosure of Corporate Affiliations i
4. Statement of the Issues i
5. Table of Cases, Statutes and Authorities ii
6. Statement of the Case 1.
7. Statement of Facts 1.
Issue #1 The lien expired in six years not ten
Issue #2 Invalid lien should be removed by the court.
Certificate of Service
Statement Regarding Oral Argument:
Due to the nature of these proceedings, the nature of the defendant, the void of cases on the main issue and the issues raised by Appellants, this Court’s understanding of the proceeding, the issues, the applicable law will be assisted by oral argument.
Disclosure of Corporate Affiliations:
Appellant does hereby certify that neither party is a publicly held corporation or such entity nor a parent, subsidiary or affiliate of publicly held corporation. No publicly held corporation or business has any interest in the outcome of this appeal.
Statement of the Issues
1. Was the renewed lien invalid?
2. Should the lower court remove the invalid lien?
Enochs v Williams Packing & Navigations Co. 370 U.S. 1 (1962).
Roberts vs. US (ED TX 77) 436 F. Supp 560.
US vs. Waite (WD PA79) 480F Supp 1235
26 U.S.C. 6325 (f) (2)
26 U.S.C 6501(a)
26 U.S.C. 6502(a)
IRC & 6322
IRC & 6502(a)(1)
IRC section 6321, Section 6323 (g)
Tres. Reg. 27 CFR 70.
Tres. Reg 27 CFR 70.150
Tres. Reg. 27 CFR 70
Manual of Procedures: 5.12(6)(10-01-2003).
UNITED STATES COURT OF APPEALS
Appellant-Petitioner, ) CCA # 06-14774-EE
vs. ) District Court #05-02124CV-T-17-TGW
Brief of Appellant
Synopsis: The lower court found the federal tax liens invalid, but refuse to remove them.
1. Appellant-Petitioner Ernest Patriot filed a complaint under 26 USC 7433 (the Unauthorized Tax Collection Act) on November 18, 2005 (docket # 1) to remove expired federal tax liens, among other things. The other issues have been settled or dropped and the only issue on appeal is the removal of the illegal federal tax liens.
Ernest filed his Motion for Summary Judgment on February 10, 2006 (#6) The lower court denied this on February 14, 2006 (#6) as premature.
2. Government made its Motion to Dismiss on May 31, 2006 (docket # 12) Patriot filed his Opposition to Motion to Dismiss on June 29, 2006 (#14). The lower court, the Honorable Elizabeth A. Kovachevich USDJ-MDFL, signed her order on July 7, 2006 (#12), which granted the government Motion to Dismiss. On August 1, 2006 Patriot, filed his Motion for New Trial or Motion for Reconsideration. The DOJ filed their Opposition to said Motion on August 4, 2006. (#17)
The lower court denied Patriot’s Motion for new trail on August 2, 2006. (#16). On September 1, Patriot filed his Notice for Appeal (#19) for the dismissal order and the denial of new trial.
3. Between 1993 and 1995, defendant Internal Revenue Service (IRS) made several tax assessments against Patriot. Seeking to collect the unpaid taxes and pursuant to its statutory authority, the IRS filed in the public record multiple Notices of Federal Tax Lien. (“Notices”) (Exhibit A). Such Notices are effective as long as the limitations periods, typically ten (10) years from the date of assessment, for the collection of the underlying tax assessments have not expired. 26 IRC & 6322; 26 IRC & 6502(a)(1). Accordingly, Patriot’s Notices would have been expected to self-release at various times between 2003 and 2005.
4. The IRS attempted to extend the limitations periods by filing multiple revocations of its releases (Form 12474-A) (Exhibit B). Patriot alleges that these revocations were unlawful, halted the sale of a piece of real property and caused economic harm. He brought this action against the
5. Many Internal Revenue Service tax liens against Ernest Patriot were filed on December 12, 1991. (Exhibit A) The liens were over ten (10) years old by the year 2005, and therefore expired due to the statute of limitations. The IRS could have renewed these without any problems prior to the expiration of the ten-year period.
6. If the IRS had filed the extension on time, the liens on time would lasted another ten (10) years. However, the IRS renewed the liens after the extension date had expired. The IRS renewed the liens under IRC sections 6321, 6323 and 6323. They revoked the release under IRC 6325(f)(2).
This statue does not extend the statue of limitations for ten (10) years, but only for time that was tolled by bankruptcy, etc, i.e., only for the time period the tolling took place under law.
7. The IRS also filed two more Notice of Federal Tax Lien's (NFTL) after the expiration date. The agents knew that these liens were invalid and past the statue of limitations. This is a clear case of harassment.
8. The law is clear and precise: 26 U.S.C. 6325 (f) (2) - Tres. Reg. 27 CFR 70.150:
(2). Revocation of certificate of release or nonattachment:
“If the Secretary determines that a certificate of release or nonattachment of a lien imposed by Section 6321 was issued erroneously or improvidently, or if a certificate of release of such lien was issued pursuant to a collateral agreement entered into connection with a compromise under Section 7122 which has been breached, and if the period of limitation on collection after assessment has not expired, the Secretary may revoke such certificate and reinstate the lien -[emphasis added] Tres. Reg 27 CFR 70.150
9. Clearly that the IRS failed to re-file the NFTL and Revocation WITHIN the Statue of Limitations period required under law. The Statue of Limitations is as follows:
26 U.S.C 6501(a):
"Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed after the date prescribed" [emphasis added] 26 U.S.C. 6502(a): Where the assessment by any tax by this title has been made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun-
(1.) within 10 years after the assessment of the tax [emphasis added ]
10. Also the agency’s actions are in violation of the agents’ own Manual of Procedures: 5.12 (6) (10-01-2003).
11. The Certificate of Revocation is issued when a lien has been released in error.
There are two versions of the Certificate of Revocations:
a. Form 12474 - issued to revoke a release that was released in error
b. Form 12474A - issued when a NFTL was not filed timely and the
collection statue expiration date has not expired. [emphasis added }
12. The various tolling periods in this case were about six years and they have now all expired. The tax liens can only be renewed for the amount of time that collections were halted. These time periods have run out and the liens are now illegal.
13. By error or negligence, in this case the IRS agents renewed the expired liens for the full 10 years. This would have been legal for the extensions but this was a renewal case. Therefore, the liens were illegally extended to an average of four years.
14. Since the limitations have expired by law, and the liens are still on the Courthouse records against Ernest Patriot, he is still suffering damages, harming him both emotionally and financially.
15. The issue before the lower court was whether the renewed tax lien was either for a period of ten years or for a period of six years. The government argued the liens should have been for six years, not the ten listed on the Notices. This court ruled that these renewed liens lasted six years and that the ten years noted on the lien was not true or illegal. When the lower court found the NFTL to be incorrect or invalid, then the court should have REMOVED these liens.
Clearly, the lower court agreed with Patriot that the Form 124-724-A liens lasted only for the period of six years and not the ten-year period listed on the renewed liens. Therefore, the tax liens on file were defected or illegal.
16. Today at the local courthouse, the IRS has on record several tax liens which a federal court has ruled are defected or illegal. An unsuspected visitor to the courthouse or perspective purchaser would be misleading by these illegal liens. These incorrect liens harm Patriot in many ways. Therefore, they should be removed.
17. The United States Attorney in its Motion to Dismiss dated May 31, 2006, clearly stated that the renewal liens were valid only for six years which was the period of time that the statue of limitations was tolled, not the ten years listed on the new liens renewed under IRC 6325(f)(2). In other words the government attorney agrees with Patriot that the renewed liens are incorrect and wrongful.
Since all the parties agree that the liens are defective, they should be removed. The IRS had a duty to renew the liens prior to the automatic self-release date. However, the agents did not do so. Later under another statue, they sought to revoke the automatic expiration and reinstate the liens. Then the IRS made the second error, which was using defected and illegal tax liens. Now, the
18. The IRS or for that matter any Government agency, will continue making mistakes unless the natural consequences of their actions take place. The administrators will not do their work right unless they are held accountable. If the courts allow mistakes to go uncorrected, then the Government employees and their supervisors have no incentive to do their job correctly in the first place, to make corrections and to be more attentive to their assigned duties.
20. As it is presented here and evidence by the attached copies (Exhibit______) of the "Revocation of Certificate of Release of Federal Tax Lien," it is clear that the IRS has failed to re-file the NFTL and revocation WITHIN the Statue of Limitations required under the law.
21. This case fits into the Enochs exception to the Anti-Injunction Act because Patriot is not only likely to prevail but has already prevailed. Enochs v Williams Packing & Navigations Co. 370
Issue # 1: Undisputed, the renewed liens were invalid.
22. The following facts are undisputed:
a. Ernest self-assessed himself in the early nineties.
b. Ten-year statute of limitations was in effect.
c. The IRS filed properly their Notice of Federal Tax Liens.
d. All of these liens expired.
e. The IRS reinstated the liens (or revoked the Certificate of Release) under IRC 6325 (f)(2) using form 12474-A
f. The forms incorrectly listed a limitations period of ten years, as they were suppose to last approximately six years.
g. Patriot had years ago filed bankruptcy; which lasted approximately six years.
h. The statute of limitations was suspended for approximately six years.
i. The six-year (the correct term) limitation has now expired.
j. The liens were invalid because (a) the form was typed wrong and /or (b), everything has now expired even though the form lists a few more years.
23. For the above two reasons the renewed liens are now invalid. The government did not disagree below and the lower court found the six years applied, not the ten years as listed on the form.
24. Every day the incorrect liens remain at the courthouse, Ernie is financially damaged.
25. Since the liens are now unquestionably invalid, they should be removed. Having these incorrect liens on record harms Patriot in many ways.
26. Patriot requests this court to order (Writ of Mandamus) the Secretary (the IRS) to issue a
Certificate of Release and notify the county clerk to release the NFTL since they are clearly unenforceable. The statute law provides: IRC § 6322. Period of lien
”Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time.” [Emphasis added]
27. Well -settled law provides that once the court finds and/or the government concedes that the tax liens are unenforceable, and then the court can order the Secretary to issue the Certificate of Release. Roberts vs. US (ED TX 77) 436 F. Supp 560. See also US vs. Waite (WD PA79) 480F Supp 1235.
The main case supporting Ernie is Kurio vs US (DCTX 68) 281 F Supp 252, provides:
“At the proper time, an abatement of the assessment and release of the lien could and might be ordered by the court pursuant to 28 U.S.C. § 1361. Section 1361 gives the district court jurisdiction of an action in the nature of mandamus to compel an officer of the
“Language borrowed from the
“An outstanding lien of this sort can have a disastrous effect upon a small businessman such as Kurio. Kurio testified that a drywall contractor's business depends upon his ability to obtain a good line of credit from the companies that furnish him drywall and other materials. He stated that his line of credit has been reduced substantially because of the $89,000 tax lien. Kurio stated further that the existence of the lien has severely limited his ability to get contracts for the larger jobs- especially commercial jobs of the sort he has been striving for years to break into- due to the general contractor's fear that the Government would attempt collection of the lien while Kurio was in the process of completing the job, and thus impede or prevent his performance.
”Although on April 21, 1967 the Government by way of stipulation reduced the maximum amount of claimed liability to $25,629.48, it is of limited practical benefit to plaintiff because the assessment*264 and notice of lien have not been amended or reduced to reflect this reduced claim. The public records announce that plaintiff owes the Government almost four times the amount the Government is now actually claiming he owes. In this connection, it will be recalled that the Government has here relied solely on the presumption of validity of the assessment, offered no evidence to support such validity and that, although given full opportunity to do so, counsel did not submit any authorities or make an oral argument in support of the validity of the assessment.
“If the Government fails to cancel the assessment and issue a certificate of release of the lien within a reasonable period of time after this judgment becomes final and after written request therefore by plaintiff, it would then be appropriate for him to institute legal proceedings to force such action pursuant to 28 U.S.C § 1361 or 28 U.S.C. § 2410,FN13 but not before then.
“Section 2410 provides, in part, that in actions or suits involving liens arising under the internal revenue laws, the United States may be named a party- for example in a suit to quiet title to real or property on which the United States has or claims a mortgage or other lien. Once the tax or part of the assessment has been paid, the suit is no longer in the nature of an injunctive action. Compare Falik v. United States, 343 F.2d 38 (2d Cir. 1965). See also Comment 71 Yale L.J. 1329 (1962).”
The courts do in fact have the power to remedy the wrongful and admitted incorrect actions of a federal agency. After the lower court found that the Notices were invalid she should have ordered the IRS to release them.
In conclusion, the tax service and the people of this great county would be served better if the courts made the bureaucrats correct their errors and give them incentives to be more careful when they take adverse action against a citizen. The administrative agencies have a long history of abusing their powers and the judicial system has an equally long history of attempting to correct these many abuses. If the bureaucracy can continue to trample on the citizenry, then the people will no longer support the government, which would lead to chaos.
CERTIFICATE OF SERVICE: I do hereby certify that on this date, I sent properly to opposing counsel a copy of this brief.
Ernest Patriot, Plaintiff pro per