THE UNITED STATES DISTRICT COURT
FOR MIDDLE DISTRICT OF FLORIDA
Valdy Patriot )CASE NO: __________________,
) Complaint for Damages
vs. ) for Illegal Tax Collections.
) (Jury Trial Requested)
UNITED STATES OF AMERICA and )
INTERNAL REVENUE SERVICE )
Plaintiff, Valdy Patriot complains of Defendants United States of America and Internal Revenue Services and seeks damages for Illegal Tax Collection under IRC Section 7433.
- I INTRODUCTION
- This is an action brought under 26 U.S.C. 7433 for minimum statutory damages of $ 100,000 plus fees and cost for an illegal Internal Revenue Service levy on the wages of Valdy Patriot from June 6th of 2005 to December 2005. Further, Valdy Patriot request return of $ 5,387.11 illegally collected under above levy.
- Further Plaintiff request trial by jury, pursuant to FRCivP 38.
- This Court has jurisdiction pursuant to 28 U.S.C. Section 1331 as this action involves federal statutes and defendants are federal agencies; IRC 7433, FRCivP 65, 28 U.S.C. Sections 451, 1331, 1357, 1361and 1391(e).
- Valdy Patriot is a naturalized American citizen refugee from Communist Poland and resident of this District and Sarasota County since 2004.
- Valdy Patriot is the sole support of his loving wife Malgorzata, two daughters one in fourth grade and other in second grade now. The levy consisted 80% to 40% of plaintiffs paycheck and caused him immense financial hardship.
- Patriot`s 1999 income tax was abated by the IRS after a proper ruling by U.S. Tax Court on February 13, 2004 due to motion filed by IRS counsel.
- In January 2004, Plaintiff moved from Chicago, Illinois to Florida, a different IRS region.
- In May 2004, the local IRS begin auditing and assessing Patriot for his 1999 income tax.
However, the agent failed to issue a 90 day letter on said tax year and allow Patriot a chance to claim their two dependents daughters, deductions, other expenses.
- Then in August 2005 the tax collectors levied for said tax year his paycheck for about 80% of his biweekly pay which continued until Plaintiff filed a compliant with federal court (Case No.8:05-CV-2019-T-27MAP) and counsel for IRS admitted agency errors and voluntarily stopped illegal collection. The Court ruled that the levy was illegal. Since this issue has already been litigated, the only issues are the return of the monies wrongfully taken and the damages due Plaintiff.
By stopping levy, IRS admitted the levy was illegal.
- IRS claims that Service issued two (2) notices of deficiencies. First proposed for a sum of $ 518.00 dated November 21, 2001. Second for sum of $
- 169.00 on May 29, 2003 a month and fourteen days after statute of limitation on assessment had expired.
- Before first deficiency was issued, IRS intended to levy Patriot's assets around May 2001.
Patriot filed for CDPH. Hearing was held in Chicago, IL in on November 5, 2001. An amazingly favorable to IRS determination was issued on March 27, 2002. Patriot appealed to U.S. Tax Court on April 26, 2002. Final Tax Court decision for abatement of all taxes was issued on February 13, 2004.
- IRS records show two illegal assessments for the same sum of $ 11,169. The first one was issued on May 29, 2000
and second one on October 22, 2003. IRS did this, so one illegal assessment can prevail after the abatement which took place November 3, 2003.
- The IRS made in this case numerous errors:
- The audit was reopened in May 2005, after the expiration of 3 years statute of limitation
on assessments under IRC 6501(a), without waiver or consent by Patriot.
- No other NOD was issued for this second examination. The Tax Court case for 1999 year was dismissed because the IRS abated the taxes for above period according to the IRS records.
- Counsel for IRS in his motion on November 28, 2003 in above Tax Court case provided for a new CDP pre-levy hearing under IRC Section 6330, so the IRS may not exercise any right to levy in the future to collect any 1999 tax liabilities of Plaintiff until said hearing was held.
- On June 7, 2005 the IRS sent notice of levy on Patriot wages. On June 14, 2005 the IRS sent Notice of Federal Tax Lien (NFTL). On June 14, 2005 the IRS sent Patriot notice of right to hearing under IRC Sections 6330.
IRC Section 6330 "Notice and opportunity for hearing before levy" - provides: (a) Requirement of notice of levy. (1) In general, no levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of the Secretary’s intention to make such a levy.
Further, no levy is allowed if CDPH requested within 30 days and until all appeals exhausted. Plaintiff did request such hearing on July 4, 2005.The IRC Section 6330(e) provides that all levies shall be suspended.
- Notice of hearing under IRC Section 6320 also was issued with NFTL. Plaintiff did not contest the NFTL at that time.
- According to the IRS records, the assessment statute was extended twice, each time for 150 days. First 150 day extension expired on September 12, 2003. IRS extended assessment statute on September 18, 2006 six (6) days after first 150 days expired.
- October 22nd, 2003 according to the IRS records, the Service made second assessment for same amount $ 11,169.00. This post -dated assessment is illegal and not effective.
- The first notice of deficiency was issued after CDPH was completed. Second notice of deficiency was issued during tax court procedures. These NODs died with the abatement by the IRS and Tax Court in final ruling
- Plaintiff filed on May 26, 2006 Administrative Claim for Unauthorized Collection Actions under IRC Section 7433 & 26CFR 301.7433-1 to Area Director, and mailed to 5971 Cattleridge Blvd, Su.102, Sarasota FL 34232.
Daryl V. Galloway, Advisory Territory Manager on July 14, 2006 denied above claim.
- Plaintiff filed on August 6, 2006 Administrative Claim for Unauthorized Collection Actions
under section 7433 & 26CFR 301.7433-1 to two different addresses given to Plaintiff by Taxpayer Advocate: 1.Area Director, Compliance Technical Support Manager- Joel Goverman, 5000 Ellin Rd., Lanham/Seabrook, MD 20706-1348; and 2. and Sandi Nirenberg, 7850 SW 6th Court STOP 5780, Plantation, FL 33324
No responses as today to above claim have been received by plaintiff.
- IRS record show no any tax assessed for said tax year after abatement date of 11/03/2003.
- Pursuant to Local Rule 1.04(c) plaintiff brings to attention to the Court that Plaintiff now has levy and lien on appeal in U.S. Tax Court regarding year 1999.
Plaintiff as attorney pro per certifies such in this verified complaint and ask This Honorable Court to affirm damages, grant fees, out of packet costs, return $ 5,387.11 collected illegally and other cost court may see as appropriate.
Valdy Patriot, Plaintiff proper,
1776 Patriot Way
North Port, Fl 34286
Plaintiff, hereby verifies that all information stated above is true and correct.
Valdy Patriot, pro per
Sworn to before me this________day of _______2007.
Notary Public for Florida Expire: ______