IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA, )
Plaintiff, ) Civil No. 3:06cv0000 XXX
)
v ) Answer and Counterclaim
) (Jury Trial Demanded)
ROBERT PATRIOT, and )
KAREN PATRIOT )
Defendants )
Defendant Robert Patriot and Karen Patriot hereby file their answer and counterclaim to the complaint of the United States dated October 23, 2006, based on the following grounds:
1. Defendants above named, hereby denied each and every allegation and statement made against them and demanded strict proof thereof.
2. Pursuit to Rule 38 FRCivP, defendants request a jury trial of their peers.
3. Karen Patriot has nothing to do with this case, was a homemaker in the years in question, did not hold a job, was not employed for gain, did not file any tax returns nor receive any income for the years in question under any definition. The liens are against her are unwarranted, illegal, and invalid and should be removed. Defendant Karen requests that this court dismiss her from this case.
4. For the tax years in question Karen did not receive any administrative due process and did not receive as the law or administrative tax procedure code requires:
A. A notice of proposed assessment (30 day letter)
B. Notice of Deficiency (90 day letter)
C. The Notice and Demand letter
D. Her Notice of her right to a collection due process hearing (CDPH)
Therefore, a judicial judgment against her is premature, unwarranted and unnecessary at this time. Judicial economy demands that DOJ exhaust administrative remedies and the IRS afford Karen her administrative due process.
5. The Attorney for the government claims that Karen owes money from employment withholding taxes from unnamed company. Since the complaint did not list the name of the company or furnish enough details to appraise her of the allegations against her, this part of the lawsuit should be dismissed for failure to state a claim for relief and vagueness. Further, the DOJ should be required to furnish her the name of the employer and other details so she can prepare her defenses for some vague failure in 1993.
6.The tax liens on the real estate which is sought to be collected upon have numerous fatal errors, are procedurally incorrect and erroneous, do not meet the requirement of the Internal Revenue Code and therefore are invalid. Not only should they not be a basis of this lawsuit, but should not be allowed to remain in the courthouse. They should be removed.
7. In general the complaint does not appraise defendants of the government’s position. The complaint lists certain jurisdiction of the Internal Revenue Code and nothing else. The complaint lists a number of facts, but does not explain what the government seeks and therefore should be dismissed.
Defendants do not owe the taxes assessed against them and the complaint does not alledge that they do. The tax liens are a figment of some agent’s imagination and should be removed.
8. The complaint does not specifically list the code section that authorizes the government to reduce the judgment unpaid assessment. The federal courts have no common law, are strictly creatures of statue and have no authority, power or jurisdiction unless they operate under a specific section listed in the US Code. The code sections listed in the complaint vaguely grant the district courts certain powers, but not the ones sought in this complaint.
Since the complaint does not state a claim which relief could be granted, does not list the relief sought or the specific authority of the district court, this case should be dismissed and the government pay authority’s fees and costs.
9. The Patriot’s complain of United States of America and Internal Revenue Service and seek damages for Illegal Tax Collections under IRC 7433 and an injunction removing illegal placed federal tax lien under IRC 6331 (i)(4)(B) and for the illegal lien and failure to remove illegal tax lien under IRC 7432.
This is an action brought under 26 U.S.C. 7432, and 26 U.S.C. 7433 for minimum statutory damages of $100,000 plus fees and cost for illegal Internal Revenue Service liens on real property of the Patriot’s. Further, Patriot requests an order to remove the illegal liens.
11. This Court has jurisdiction pursuant to 28 U.S.C. Section 1331 as this action involves federal statutes and defendants are federal agencies; IRC 7432 & 7433, FRCivP 65, 28 U.S.C. Sections 451, 1331, 1357, 1361, and 1391 (e).
12. The Patriot’s have a valuable piece of real estate and the IRS placed illegal NFTL’s and re-filed the illegal NFTL’s on the home preventing them from selling or mortgaging the property in order to pay the IRS past taxes.
13. Almost 10 years ago, the IRS made an assessment against Robert Patriot for a number of old tax years. Even though Robert had no tax liability for those years, he did not know how to contest the assessments. Then IRS re-filed the Notice of Federal Tax Liens (NFTL) for the unpaid assessments of those ancient years.
14. After 10 years by law, under the Statue of Limitations, the federal liens expired. Federal Tax
Liens self extinguish after 10 years. The liens are then gone, finished, over with and
Extinguished. The IRS NFTL Form (668)(Y)(c) very clearly includes this statement inside a box:
“IMPORTANT RELEASE INFORMATION: For each assessment listed below, unless notice of the lien is refilled by the date given in column (e), this notice shall, on the day following such date, operate as a certificate of release as defined in IRC 6325(a)”
Column (e) referred to in the box above is listed on the NFTL as “LAST DAY FOR REFILING.” That means if the Statue of Limitations is not extended by the last day for re-filing, the lien and the assessment that it protects are lost and gone forever.
15. The two sets of liens against Karen Patriot are not supported by the facts and should be removed. The IRS filed notice of federal tax liens against her several years ago for thousands of dollars for tax years 1989, 1990, 1991, 1992, 1993, 1994 and 1995.Then the IRS later re-filed notices of NFTL.
16. These liens were re-filed against Karen several years ago and are now in the records of the courthouse in the county where she lives. This creates immense embarrassment for Karen and also prevents her from selling any real estate.
For the tax years in question, Karen did not receive her notice of a right for collection hearing. When the liens were re-filed, Karen was entitled to a Notice of a CDP hearing under IRC 6320. This was not sent.
17. IRC 6320 (a)(2) requires the IRS to notify the taxpayer in five business days of filing the notice of federal tax lien. The IRS did not send her a copy of the NFTL within five days. Further, the IRS did not send her a copy of the re-filed NFTL within five days, as the law requires. Therefore, the liens and the re-filed liens are invalid.
18. IRS placed Notices of Liens on Robert Patriot’s home in the amount of over
$200,000 many years ago. Then the IRS re-filed these liens several years ago.
But Robert Patriot received no notice from anyone. IRC 6320 (a)(2) requires the IRS to notify the taxpayer in five business days of filing the notice of federal tax lien and also the re-filing. . Further the IRS also failed to send Robert a Notice of Collection Due Process Hearing for the numerous re-filing of NFTL. Since the IRS did not notify Robert Patriot of the re-filing of the lien or send him a notice of CDPH; the re-file liens are invalid and therefore should be removed.
19. The Congress passed a law mandating a collection due process hearing and of course a notice of the hearing so the taxpayer can file for it. The IRS clearly and without doubt refused to sent the Patriot’s their notice of hearing when they re-filed the NFTL’s
A re-filing of a tax lien is the same thing as the filing of the original tax lien. Congress did not provide that re-filings did not require the CDPH as the filing did. Obviously re-filing and filing is the same thing and if Congress wanted an exception to the CDPH, Congress would have so provided, not some low level tax collector. The Internal Revenue Code is extremely complicated and complex., but clearly a CDPH notice is requires for a re-filing of NFTL.
WHEREFORE, Robert Patriot request that This Honorable Court do grant the relief herein requested, grant fees, cost and out-of–pocket cost and other appropriate relief.
Certificate of Service: I hereby certify that on this date I sent a copy to opposing party.
___________________________ Date:_________________________