IN THE UNITED STATES MIDDLE DISTRICT
FOR THE MIDDLE DISTRICT OF
Ernest Patriot )
Plaintiff, ) Case No: 8:05
Vs. )
) Objection to Motion to Dismiss
UNITED STATES OF )
AMERICA
Defendant )
Petitioner Ernest Patriot hereby files his Objection to the Government’s Motion to Dismiss, dated May 31, 2006, based on the following reasons:
1. The most able and well-paid government attorney omitted entirely in his Motion to Dismiss the principle, in fact, the only real issue in this case: that the renewed liens were in excess of about six years in length.
2. In this Objection, Patriot does not contest:
A. whether the IRS could renew a lien;
B. whether the IRS could reinstate an expired tax lien;
C. that the Statute of Limitations was tolled for a number of years;
D. that Plaintiff filed bankruptcy, which suspended the ten year limitations period for a few years.
3. The original lien was filed for ten years, and if the IRS did extend the lien before it expired, they could extend it for a full ten years. However, those are not the facts in this case. In the instant case, the lien expired by themselves after ten years, and the IRS failed to extend the lien within that time periods.
After the lien had expired, the IRS revoked the natural expiration of the lien and instituted a new lien.
However, the new lien could only last as long as the tolling of the original lien. By error or malice, the Revenue Officer renewed these liens for ten years instead of the proper number of years, which was about four. Therefore, by law, the current FTL have expired, and should be removed.
4. Additionally, Plaintiff sued for damages under IRC 7433, and the government points out at great length that Patriot did not exhaust his administrative remedies. However, Patriot can simply send in his administrative claim to the IRS, file another suit separately, and eat up more of the valuable time of the courts and the parties involved. For the purpose of judicial economy, this court should simply award Patriot his statutory damages and end this long and complicated case.
5. Even though Patriot clearly stated his position in his Motion for Summary Judgment, the government does not refute, deny or object to Patriot’s argument that the renewed lien was excessive by about six years. Since the government does not dispute or argue against Patriot’s clearly delineated facts and arguments, obviously the government agrees with them; or the high-paid DOJ attorney failed to counter Patriot’s position because of a typing error.
Any position that is not controverted is to be taken by the courts as admitted. Silence implies consent. Since the government does not dispute the fact that the lien was originally excessive, has now expired, and is therefore now illegal, the court should simply order the IRS to remove the lien and limit the 7433 damages against the Taxpayers.
6. As soon as the IRS removes the illegal liens (probably by court order), Patriot would incur no more damages for which the IRS must reimburse him. Therefore, the government would benefit greatly for this court to order the removal of the expired FTLs. As we all know the federal bureaucracies will not take steps to help a citizen even when everyone knows that is better and more expedient to do so.
The federal judges routinely issue injunctions under IRC 7433, as anyone can see that Congress intended that to be part of the Taxpayers’ Bill of Rights II. Attached as Exhibit A is an altered copy of a court order, dated 21st day of November, 2005 in Olender vs
7. Plaintiff incorporates by reference his Motion for Summary Judgment, dated___________. Said Motion has the exhibits and exact dates.
WHEREFORE, Plaintiff requests that This Honorable Court deny the government’s Motion to Dismiss and to grant the heretofore filed Summary Judgment of Patriot and relief therein requested, grant fees, cost and out of pocket cost and other appropriate relief.
CERTIFICATE OF SERVICE: I do hereby certify that on this date,_____________ I sent properly a copy of this pleading to opposing counsel.
____________________ Date:_____________
Ernest Patriot Plaintiff pro per
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF
VAL PATRIOT,
Plaintiff
vs. CASE NO. 8:05-CV-2019
INTERNAL REVENUE SERVICE,
Defendants.
_____________________________________/
ORDER
PLAINTIFF’S REQUEST for a preliminary injunction pursuant to § 6331(i)(4)(B) was called up for hearing on the 21st day of November, 2005. Plaintiff’s request for injunctive relief was contained in Plaintiff’s Verified Complaint for Damages for Illegal Tax Collections and Injunctive Relief. (Dkt.1). [1] Defendants responded in opposition to plaintiff’s request for preliminary injunction. (Dkt 4). [2] During the hearing, Defendants announced that levy proceedings against Plaintiff have been temporarily suspended while Defendants ascertain whether Plaintiff is entitled to a second collection due process hearing as to the levy. Defendants acknowledge that plaintiff has requested a collection due process hearing as to a Notice of Federal Tax Lien, which remains pending. Upon consideration, it is
ORDERED AND ADJUDGED that pending further order of the Court, all collection activity on the IRS lien(s) and levy are stayed. In the event Defendants determine that levy and/or lien foreclosure is authorized, it shall apply to the Court by motion with supporting memorandum for authority to commence same and give notice to Plaintiff.
DONE AND ORDERED in chambers this 21st day of November, 2005
S/_____________________________
JAMES D. WHITTEMORE
United States District Judge
Copies to:
Plaintiff
United States Attorney’s office
[1] In this action Plaintiff seeks to enjoin an Internal Revenue Service levy on his wages based on an assessment for Plaintiff’s tax liability for tax year 1999. Plaintiff contends that after receiving a Notice of Federal Tax Lien and Notice of Right to Hearing, he requested a Collection Due Process Hearing on July4, 2005 and that pursuant to 26 U.S.C. § 6330(c), the levy action should have been suspended for the periods during which such hearing and appeals therein are pending.
[2] Plaintiff has furnished by certified mail copies of the Complaint on the United State Attorney’s Office and the United States Attorney General. Plaintiff has not, however, caused Summons to be issued. During the hearing, Plaintiff was directed to effect service of process in accordance with Rule 4, Fed.R.Civ.P.