IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
HAROLD PATRIOT; ) SHERRIE PATRIOT, ) Civil No. 1:08-CV-000 Plaintiffs, ) ) v. ) ) PLAINTIFFS’ RESPONSE TO DEFENDANT’S UNITED STATES OF AMERICA; et al, ) MEMORANDUM IN SUPPORT OF ) THE MOTION TO DISMISS Defendants. ) ____________________________________________________________________________________________
Defendant filed a Reply memorandum in support of its motion to dismiss based on two reasons: (1) that the Internal Revenue Service may not be sued, and (2) that the “continuing violation” doctrine is not applicable to Plaintiffs’ claims.
In making a determination on whether to dismiss a case, the court must “take all the allegations in the complaint as true, and view the complaint in the light most favorable to the plaintiff.” Martinez v. Am. Airlines, Inc., 74 F.3d 247, 248 (11th Cir.1996) (quoting Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir.1993). The court must treat the complaint's factual allegations-including mixed questions of law and fact-as true and draw all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003).
Two main issues present themselves in this case:
Does the IRS or the United States have a legally enforceable lien against Plaintiffs’ property?
If yes, have Plaintiffs acted within the Statutes of limitations to protect their property rights?
Plaintiffs agree that the United States is the only party defendant. The only reason the IRS name was added is to make it a recipient of the summons and inform it about this lawsuit.
I. Defendant has no legally enforceable lien against Plaintiffs
Defendant has no legally enforceable lien against Plaintiffs’ property, especially since the limitation period to collect the tax in question has expired. Defendant’s liens against Plaintiffs are not legally enforceable and must be released as per 26 C.F.R. 401.6325 – 1.
In the present case, the tax years at issue are 1985 through 1996. The alleged tax owed has certainly been delinquent in excess of ten years. A lien cannot be enforced at the end of the ten-year period. It becomes self-extinguished.
It must be noted that Defendant’s actions are in violations of the Fair Debt Collection Practices Act (FDCPA) which states that “a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” The false representation refers, among other things, to “the character, amount, or legal status of any debt.”
Defendant’s alleged tax debt with Plaintiffs is not legally enforceable since the period of limitation has expired on the collection of said debt. By not formally releasing the lien and insisting on pursuing measures for its collection, Defendant is falsely misrepresenting the legal status of the alleged tax debt and implying – and potentially deceiving Plaintiffs into believing – that the debt is legally enforceable.
The FDCPA also states that “a State law is not inconsistent with this title if the protection such law affords any consumer is greater than the protection provided by this title.” Florida state law certainly affords Plaintiffs greater protection.
Defendant’s motion to dismiss must be denied. Plaintiffs’ case has viable claims. Defendant is liable to the Plaintiffs for failure to release legally unenforceable liens under 26 USC § 7432. Defendant is also liable to the Plaintiffs for unauthorized collection measures under 26 U.S.C.A. § 7433.
II. Even if Defendant has legally enforceable liens, Plaintiffs’ action is within the two-year period of limitations.
Even if Defendant has legally enforceable liens, Plaintiffs took action and contested the liens within the two-year period of limitations.
According to 26 CFR §301.7432-1(e):
No civil action in federal district court prior to filing an administrative claim(1) Except as provided in paragraph (e)(2) of this section, no action under paragraph (a) of this section shall be maintained in any federal district court before the earlier of the following dates: (i) The date a decision is rendered on a claim filed in accordance with paragraph (f) of this section; or (ii) The date 30 days after the date an administrative claim is filed in accordance with paragraph (f) of this section.
According to 26 CFR §301.7433-1(d):
No civil action in federal district court prior to filing an administrative claim(1) Except as provided in paragraph (d)(2) of this section, no action under paragraph (a) of this section shall be maintained in any federal district court before the earlier of the following dates: (i) The date the decision is rendered on a claim filed in accordance with paragraph (e) of this section; or (ii) The date six months after the date an administrative claim is filed in accordance with paragraph (e) of this section.
Plaintiffs did file their administrative claims, and no decision was rendered by the IRS. Plaintiffs did file this lawsuit after 30 days and after six months of their first administrative claims were mailed to the IRS.
According to 26 CFR §301.7432-1(i) and 26 CFR §301.7433-1(g), the period of limitations is similar under both provisions.
Time for filing. A civil action under paragraph (a) of this section must be brought in federal district court within 2 years after the date the cause of action accrues.
Right of action accrues. A cause of action under paragraph (a) of this section accrues when the taxpayer has had a reasonable opportunity to discover all essential elements of a possible cause of action.
Both Plaintiffs and Defendant agree on the two years Statute of limitations. They disagree on when it begins. To address this disagreement, the first question to be asked is: when did the cause of action accrue? According to Regulations, it accrues “when the taxpayer has had a reasonable opportunity to discover all essential elements of a possible cause of action.” Then, the subsequent questions become: (1) what would be considered “a reasonable opportunity”, and (2) what are “all essential elements”? The Courts offer more than one interpretation.
A. Case example No. 1
In Snyder v. U.S., Appellants filed administrative request for a lien release in June 1998. However, they did not file a civil complaint with the District Court seeking damages pursuant to I.R.C. § 7432 until January 5, 2004. The court found Appellants’ claim to be time-barred because “Appellants demonstrated they had sufficient knowledge and capacity to file a timely lawsuit by submitting various administrative filings, including their June 1998 administrative request for a lien release.” Snyder v. U.S., 260 Fed.Appx. 488 at 493, (C.A.3 (Del.),2008).
In Snyder, Appellants’ submission of administrative letters implied their “sufficient knowledge” to file a timely lawsuit.
It can be inferred that having sufficient knowledge, as exhibited by submitting a certain filing, goes to a person’s “reasonable opportunity to discover all essential elements.”
In the present case, the earliest formal filings Plaintiffs did to contest their lien was by filing “Notice of Contest of Lien” with the Clerk of the Circuit Court in the County of Duval, Florida in September and October of 2006. The present lawsuit was filed within two years from that date.
As in Snyder, another date that could be reflective of “sufficient knowledge” is the date Plaintiffs submitted their administrative claims starting in June 2007. This lawsuit was filed within two years from that date as well.
Plaintiffs acted based on the knowledge they had during the time. They took action when they learned the process, and they have not violated that process once they initiated it.
B. Case example No. 2
In Gottlieb, the Court said: Section 7433(d)(3) clearly provides that claims arising from the IRS's wrongful collection activities “may be brought only within 2 years after the date of the right of action accrues.” As the district court correctly explained, Gottlieb's claim accrued once he “had a reasonable opportunity to discover all essential elements of a possible cause of action.” 26 C.F.R. § 301.7433-1(g)(2). Accordingly, we agree with the district court that Gottlieb's claim accrued, at the latest, on November 7, 1995, the date on which the IRS responded unfavorably to his request for administrative relief. Gottlieb v. I.R.S., 4 Fed.Appx. 355, C.A.9 (Cal.), 2001.
The Court added: To toll the limitations period under the “continuing wrong” doctrine, Gottlieb must establish that the IRS engaged in repeated collection efforts, occurring after November 7, 1995. See Nesovic v. United States, 71 F.3d 776, 778 (9th Cir.1995). However, contrary to Gottlieb's counsel's assertions, FN1 the record does not demonstrate that the IRS engaged in any collection activities after November 7, 1995. Thus, the district court correctly held that Gottlieb's claim, filed on December 1, 1998, was barred by the two-year statute of limitations under § 7433. Id.
In Gottlieb, the claim accrued when the IRS responded to the request for administrative relief. In the present case, the IRS never responded to Plaintiffs’ administrative claims.
In addition, the IRS is engaging in “in repeated collection efforts” or continuous collection activities against Plaintiffs. The IRS never ceased its collection measures and adding new penalties. The illegal liens are continuously ruining Plaintiffs’ credit – making it impossible for them to sell their property or enjoy their ownership of it.
C. Case example No. 3
According to Kumpman, the statutory filing period for actions brought under section 7432 and 7433 “accrues when the taxpayer has had a reasonable opportunity to discover all essential elements of a possible cause of action.” 26 C.F.R. §§ 301.7432-1(I)(2); 301.7433-1(g)(2). Here, the district court correctly found Kumpan was aware of the elements of his claim when he challenged the IRS assessment, and he did not file this action within two years of that date. Kumpman v. U.S, 188 F.3d 513, (C.A.9 Cal.,1999).
By applying Kumpman’s analysis, we may conclude that Plaintiffs in this case became aware of the elements when they contested the lien by filing “Notice of Contest of Lien” with the Clerk of the Circuit Court in the County of Duval, Florida in September and October of 2006. This lawsuit is filed within two years from that date.
Another date that could be considered is the date of submitting administrative claims to the IRS, as of June 2007. This lawsuit has been filed within two years from that date as well.
D. Case example No. 4
In Tenpenny, both of Plaintiff's filings (certainly her federal lawsuit) required that she have a reasonable basis for the allegations they contained and demonstrate that the Plaintiff “had a reasonable opportunity to discover all essential elements” of her § 7433 cause of action. Indeed, through her filings, she declared that she had discovered the elements of the cause of action she was asserting. In this regard, the Court takes a slightly more liberal view than the Defendants, who contend that June 12, 2003 (the date the Plaintiff submitted her administrative claim to the IRS) is the latest possible accrual date. In so far as either date yields the same result, however, the distinction is immaterial. Tenpenny v. U.S., 490 F.Supp.2d 852 at 858-859 (N.D.Ohio,2007)
In Tenpenny, the United States argued that the latest possible accrual date is the date Plaintiff submitted her administrative claim to the IRS. The Court argued that Plaintiff had “discovered” her cause of action, at least as of, the date on which she filed her first lawsuit to that effect. Id at 859
In the present case, this lawsuit is timely based on both of these analyses.
E. Case example No. 5
In Bennett, according to the IRS, the plaintiff had a reasonable opportunity to discover all essential elements of his causes of action by no later than February 18, 1998, when the tax liens on the plaintiff's property were released. Bennett v. U.S., 366 F.Supp.2d 877 at 879 (D.Neb.,2005).
In the current case, the tax liens were never released. By applying this analysis, the “all essential elements” have not even accrued yet.
F. Case example No. 6
In Nordbrock, Plaintiffs submitted their Administrative Claim for damages on December 30, 1996. Plaintiffs do not dispute that they had available to them all the essential elements of a possible cause of action on that date. Because Plaintiffs did not file their Complaint until April 21, 1999, well beyond the two year period established by Section 7433, their action is time-barred. Nordbrock v. U.S., 96 F.Supp.2d 944 at 946 (D.Ariz.,2000)
Once again, the date of submitting the administrative claims is the date of accrual. Plaintiffs’ lawsuit is timely based on this standard.
G. Case example No. 7
According to the Supreme Court, the right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasijudicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command. Morgan v. U.S., 304 U.S. 1 at 18-19, 58 S.Ct. 773 at 776 (U.S. 1938).
In Morgan, reasonable opportunity constitutes of (1) to know the claims AND (2) to meet or contest them. The right to submit legal arguments in one’s favor is implied within that definition.
Plaintiffs knew about the liens on or about November 30, 2004. They did contest them by submitting the administrative claims and then the lawsuit.
H. Case example No. 8
In In re Oliver, the court said: We further hold that failure to afford the petitioner a reasonable opportunity to defend himself against the charge of false and evasive swearing was a denial of due process of law. A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.
(The following decisions of this Court involving various kinds of proceedings are among the multitude that support the above statement: Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S.Ct. 330, 336, 78 L.Ed. 674, 90 A.L.R. 575; Powell v. Alabama, 287 U.S. 45, 68-70, 53 S.Ct. 55, 63, 64, 77 L.Ed. 158, 84 A.L.R. 527; Hovey v. Elliot, 167 U.S. 409, 418, 17 S.Ct. 841, 844, 42 L.Ed. 215; Holden v. Hardy, 169 U.S. 366, 390, 391, 18 S.Ct. 383, 387, 42 L.Ed. 780; Morgan v. United States, 304 U.S. 1, 14, 15, 58 S.Ct. 773, 774, 775, 82 L.Ed. 1129, and cases there cited.) In re Oliver, 333 U.S. 257 at 273-274, 68 S.Ct. 499 at 507-508 (U.S. 1948).
Taking plaintiffs' allegations in the light most favorable to them, this court has to conclude that Plaintiffs did prove, under at least one set presented in these cases, that they have filed this lawsuit within the limitations period of Sections 7432 and 7433.
III. Plaintiffs meet the Equitable Tolling standards
The Supreme Court repeatedly has held that equitable tolling should be permitted in appropriate cases so as to avoid unjust results. See Jones v. TransOhio Savings Association, 747 F.2d 1037, 1039 (6th Cir.1984)
In order to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits, the doctrine of equitable tolling may be applied to toll the running of a statute of limitations, provided it is in conjunction with the legislative scheme. The equitable tolling doctrine is read into every federal statute of limitations, and the decision whether the doctrine should be applied lies within the sole discretion of the court .... Equitable estoppel is a related equitable principle that looks to the conduct of one party in preventing another from exercising her rights or assuming inconsistent positions to the detriment of another. Wiltgen v. United States, 813 F.Supp. 1387, 1394 (N.D.Iowa 1992)
There is no clear precedent disallowing equitable tolling in § 7433 actions…. the Plaintiff reasonably may have been mislead and, as such, should not be completely doomed for her failure to develop expertise with regard to knowledge of the admittedly complex regulations governing the statute of limitations applicable in § 7433 actions. Tenpenny v. U.S., 490 F.Supp.2d 852, 860-861 (N.D.Ohio, 2007).
In this case, by filing five “Notice of Contest of Lien” with a Florida Circuit Court in the County of Duval in September and October of 2006, Plaintiffs may have been misled to believe that their action would have been sufficient to remove the illegal lien and restore their rights in their property. These filings were done within the two-year period from the time they learned about the lien on or about November 30, 2004, and they should still be in court records. By failing to institute a suit to enforce its liens in response to Plaintiffs filings, Defendant’s notices of liens were extinguished automatically and are no longer enforceable.
As the court stated in Tenpenny, plaintiffs in this case should not be doomed if they lack “expertise with regard to knowledge of the admittedly complex regulations governing the statute of limitations.”
Plaintiffs had actively pursued their remedies in the manner in which they knew how.
Courts have ruled that “officials cannot be held to have violated rights of which they could not have known.” Pinder, 54 F.3d at 1173 (emphasis added); see also Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984). Hurt v. U.S., 914 F.Supp. 1346 at 1352 (S.D.W.Va.,1996).
In that same manner, Plaintiffs cannot be held to have violated procedures of which they are not experts. They acted to the best of their abilities with the information available to them. No one would knowingly delay their own relief.
It should also be noted that Plaintiffs never received their notices, or given an opportunity to be heard, before the government placed a lien on their property. It is a fundamental right for a Plaintiff to be heard (and even fairly advised) before the government issues its final command.
In addition, Defendant’s collection measures have not ceased in November 2004. These measures continue. Each collection attempt is a new violation. The IRS never ceased its collection measures, continues to contact Plaintiffs and add new penalties. The illegal liens are continuously ruining Plaintiffs’ credit – making it impossible for them to sell their property or enjoy their ownership of it.
An inability to seek legal relief on time cannot be used as an excuse to deny that relief, while Defendant’s inability to act properly in placing a lien is left unhindered. Plaintiffs’ inability to know of their rights does not justify Defendant’s continuation in depriving them of their property rights. The protection of Plaintiffs’ rights to their property, and the fact that said property was liened using unauthorized measures, has more constitutional relevance than Plaintiffs’ expertise about statute of limitations.
IV. Defendant misinterpreted “continuing violation”
Defendant quoted Page by stating the following: “[w]hen a tort involves continuing injury, the cause of action accrues, and the limitation period begins to run, at the time the tortious conduct ceases. Since usually no single incident in a continuous chain of tortious activity can ‘fairly or realistically be identified as the cause of significant harm,’ it seems proper to regard the cumulative effect of the conduct as actionable. Page, 729 F.2d at 821-22 (emphasis added.)”
Defendant added: “The court additionally noted that the continuing tort doctrine is only available when “the tortious conduct is ongoing.” Id. at 822 fn. 23. The court held that “[w]e view the injury claimed by Page as gradual, resulting from the cumulative impact of years of allegedly tortious drug treatment.” Id. at 822. In Page, therefore, the court relied upon the cumulative effect of years of improper medical care, which led to Page’s drug addiction, as grounds for implementing the continuing violation theory. Thus, there was no definitive single act leading to plaintiff’s drug addiction because it resulted from years of improper treatment.”
Plaintiffs disagree with Defendant’s analysis of Page. In Page, no single act lead to Plaintiff’s drug addiction, but a repeat of the same or similar acts over a period of time. In this case, there was a repeat of the same act over a period of time that created the continuous chain of tortuous activity. There were five notices of federal tax liens, not one. As Defendant admits, “each involved different tax years or penalties.” Each notice was issued on a different date.
One lien by itself is a single act. Five liens, on five different dates, cannot be logically considered a single act – but five different acts leading to Defendants’ “improper treatment” of Plaintiffs. All these liens were unauthorized and issued without following proper collection measures. Cumulatively, these liens created the harm suffered by Plaintiffs.
There was not a single wrong, but a continuing course of improper conduct. The effect on Plaintiffs from five different liens, each adding to the amount allegedly owed to the previous one, cannot be classified as one violation.
Defendant’s “one violation” argument could have been used if all these notices reflected the same tax years, and filed on the same day. However, many of them have varied amount allegedly owed, as well as differ in tax year alleged obligations.
There is not a single wrong, but a continuing wrong, and a continuing course of improper conduct. These wrongs are not the “ill effects from an original violation”, but an addition to the original violation.
In its argument, Defendant is acknowledging that they did commit a violation. They are only arguing that it is one-time, and not continuous.
Plaintiffs were not sent all of the appropriate notices, they were not informed of their due process rights, and were not given the opportunity to request for a CDPH hearing. The IRS attached a lien, despite the fact that it recklessly, intentionally, or by reason of negligence pursued unauthorized collection measures. Defendant violated, among other things, the five-day rule under 26 U.S.C. 6320.
Now, Defendant is claiming that Plaintiffs’ case should be dismissed for failing to follow procedure (i.e., abide by the two year limitation) while Defendant sees no violation of procedure in a lien without proper notice and a hearing.
It appears acceptable for the IRS to not follow procedure and refuse to remove a lien, while not permissible to a Plaintiff, less knowledgeable about the law than IRS agents, to suffer for not acting “properly” under the same outlined standards. It is illogical to expect of Plaintiffs to abide by standards in a better fashion than those who are hired to implement these standards.
The purpose of Plaintiff’s lawsuit is to end an illegal lien. Defendant’s action cannot be based on unauthorized methods and then justify the continuation of these unauthorized methods by quoting legal authorities.
The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way towards carrying out illegal measures. This Court cannot permit the continuation of illegality. For the Court to rule in Defendant’s favor, then the wrong done against Plaintiffs would be seriously compounded.
Plaintiffs did not procrastinate. They acted based on whatever knowledge they had and within the period of limitations according to at least one of the standards presented by case examples outlined above.
The lien was illegal due to lack of notice and extending an opportunity for a hearing. Being illegal, it is unenforceable. Being legally unenforceable, then the lien must be released under 26 C.F.R. 401.6325 – 1. The IRS lien should not have been placed from the beginning. Every day the lien continues, Plaintiffs’ harm continues.
Plaintiffs request that this Honorable Court do grant the removal of the illegally issued notices of federal tax lien from Plaintiffs’ property, consider these notices null and void, and grant Plaintiffs damages, fees, costs, and other relief allowed by law or the Court deems appropriate. This court must deny Defendant’s motion to dismiss.
WHEREFORE Plaintiffs request that this Honorable Court do grant the relief herein requested, along with fees, costs, and other relief the Court deems appropriate.
__/s/Patriot Lawyer _______________ Date: August 26, 2008
Patriot Lawyer, Esq.
1776 Patriot Circle Court, Suite A
Arlington, VA 22209-2004
CERTIFICATE OF SERVICE
I hereby certify that on or about August 26, 2008 a true and correct copy of the foregoing document was served upon the following via the Court’s ECF filing Protocol:
Benjamin J. Weir, Esq.
Department of Justice
__/s/Patriot Lawyer _______