UNITED STATES DISTRICT COURT

TAMPA DIVISION

UNITED STATES OF AMERICA ,              		)
                                                        )     Case No.  8:08-CV-01265XXX-OOO                                                                              )
                                     Plaintiff          )
v.                                                      )                                                      Jeanne Patriot                                           )
                                    Defendant           )
							)

MOTION TO DISMISSON FOR JUDICIAL APPROVAL UPON A PRINCIPAL RESIDENCE

Now comes Jeanne Patriot, Defendant, to file in this court of record, her MOTION TO DISMISS Plaintiff’s PETITION FOR JUDICIAL APPROVAL OF LEVY UPON A PRINCIPAL RESIDENCE on the grounds that:

I. The filing of the said Petition is a harassment suit as it would result in an uneconomical levy of Defendant’s primary residence.

A.     In order to effect the seizure of Defendant’s primary residence, Revenue Officer Bryan Morris has intentionally markedly inflated the market value of Defendant’s primary residence to $179,000, [See Exhibit A] even though the Hillsborough Appraisers has appraised her property at a Just Market Value for 2008 of $125,388 [See Exhibit B], a whopping difference of $53,612, or nearly 43% above the Hillsborough County Appraiser’s 2008 Just Market Value for the Residence. (It is even $38,728, or nearly 28%, above the Hillsborough Country Appraised Just Market value for 2007 of $140,272, before the real estate values in Tampa Bay dropped precipitously). Bryan Morris would have us believe, in effect, that at a time when the average real estate value for single family homes in Tampa Bay dropped nearly 20%, [See Exhibit C] Defendant’s property actually increased in value 28% from 2007 to 2008. This is simply not possible, in the light of current economic conditions involving the housing market in Tampa Bay and nationwide. This begs the question of why Revenue Officer Bryan Morris saw fit to artificially inflate the market value of Defendant’s primary residence

B. Bryan Morris’s Minimum Bid worksheet calculations [See Exhibit A] purport to support the proposed levy and subsequent seizure and sale of Defendant’s primary residence. Morris sets the Minimum Bid Price of $32,414.29 based on his estimated (?) market value of Defendant’s home at $179,000. He says that he used Zillow.com as the “appraiser,” but used a market comparison with 3 other homes, all of which have 2 or more bedrooms, as compared to Defendant’s home with only 1 bedroom. Morris also used 1,158 square feet for the area of Defendant’s home for comparison, when the Hillsborough County Appraiser says that the area of her home is 988 sq. ft. (Morris said he used Zillow.com for the appraisal, but if the address of Defendant’s home is actually keyed into Zillow.com, and a search done for the home, Zillow.com lists the home as having 988 sq. ft.) To make matters worse, then Morris even bumped up the market value by $2000 as shown by his own Zillow printout! [See Exhibit E]. The question is, why did Morris grossly exaggerate the property-value input parameters in order to artificially inflate the “market value” of Defendant’s home, if not to avoid the petitioned-for levy being classified within IRS as a “noneconomical levy.”   The truth is, IRC § 6331(f) prohibits uneconomical levies.   The IRS is prohibited from making a seizure on property where the expenses incurred by the seizure and sale exceed the fair market value of the property at the time of levy. This provision is to keep the IRS from making purely harassment seizures of property that has so little value that it could not be sold. In the past IRS Revenue officers have made uneconomical seizures but kept the taxpayer's property under impoundment for a length of time before finally releasing it to the taxpayer.

C. Noneconomical Levy: (Sec. 6331. Levy and distraint.)

f) Uneconomical levy
      No levy may be made on any property if the amount of the expenses which the Secretary estimates (at the time of levy) would be incurred by the Secretary with respect to the levy and sale of such property exceeds the fair market value of such property at the time of levy.

D. To further illustrate this point of Plaintiff’s petition being for an uneconomical levy, then, let us use Morris’ own calculation methodology as specified on Exhibit A and set the property value at $125,388, as determined by the Hillsborough County Appraiser, even though property prices in Tampa Bay have since been steadily falling and are expected to continue to do so as the economic recession deepens.. (Defendant has been informed by the Hillsborough County Appraiser’s office “that just market values” for 2008 were based on the previous year’s home sales, and that appraised property values were updated in their records sometime prior to June 30, 2008, before the real estate market downturn in home values in Tampa Bay.) At any rate, using Morris’ calculation methodology, we find that the calculated minimum bid price to be a negative (-$151.93) [See Exhibit F].

E. Under the Taxpayer Bill of Rights, the IRS cannot foreclose unless the value of the house is about 20% plus 10% greater than the mortgage, i.e. the forced - sale value. That is, IRS allows that the forced-sale value for a property is two-thirds of its fair market value (safe harbor.) This is to account for the forced sale condition of the home, and any other factors. Nevertheless, taking the Hillsborough County Appraiser’s 2008 “just market value” as the fair market value of Defendant’s primary residence, although currently it is certainly less due to current economic conditions,   66% would equate to $82,756. Therefore, two-thirds of its fair-market value for quick sale would be no more than $82,756 and most likely would be far less; Realistically, in the Tampa market, forced sale auctions bringing even two-thirds of a property’s fair market value are very rare. In fact, most auction-forced sales in Tampa have been for one-half to one-third of property’s fair market value. Therefore, the only thing that such an auction might accomplish is to get Defendant out of her home, but this would certainly be of no monetary benefit to the Government.

F. Defendant only has an Agreement for Deed on the property at 925 E. Chelsea Street , Tampa , Florida . An Agreement for Deed is essentially a contract between buyer and seller. The Agreement (or Contract) for Deed is often used as an alternative means of financing the purchase price of property. The buyer does not receive an actual deed until payments are made under the terms of the Contract for Deed agreement. After the buyer pays all of the payments called for under the contract, the owner gives the buyer a deed to the property. If the buyer does not make payments called for under the contract, then the contract can be canceled by the mortgagor. During the term of the contract for deed, the buyer is entitled to possession of the real estate and may be required to keep the property insured and pay the real estate taxes, or reimburse the Seller for same.

II. Systematic “constructed” IRS actions, while perhaps not significant when taken one at a time, however, taken all together, over time, point up a conspicuous, consistent, and undeniable pattern of IRS abhorrent tactics which have served to fallaciously support the filing of Plaintiff’s Petition for Judicial Approval of a Levy on Defendant’s Primary Residence. These actions go far beyond mere negligence in the performance duty, because they include multiple violations of administrative IRS procedures, as well as deceit, abuse, intimidation, harassment, threats, and, yes, even forgery, exemplified by the open actions of IRS personnel toward Defendant, all of which were done to make possible the bringing of this Petition to court in the first place, including:

A.    Falsifying of data input into Defendant’s IRS records, including fabricated and fictitious information on her IRS “Account Transcript” that Defendant filed for Bankruptcy on 10/12/1999, displayed as “LEGAL BANKRUPTCY SUIT PENDING” . [See Exhibit D1]; According to same “Account Transcript”, Defendant’s fictitious “Bankruptcy Suit” was pending until either 03-14-2001 or 06-06-2001, depending on what you want to believe, as both dates are given for “LEGAL/BANKRUPTCY SUIT NO LONGER PENDING.”

B.     Extending the Statute of Limitations on Collections from 2008 to 2010 for the 1993, and 1994 tax years based on the aforementioned falsified bankruptcy data [See Exhibit D1]; Currently the statute of limitations on collection of delinquent taxes is 10 years from the date of assessment. The Substitute for Return (SFR) was made by the IRS for Defendant on 06/03/1997,[See Exhibit D2], although the IRS later changed the date that the SFR was filed to 08/24/1998 (?). The statute of Limitations should have expired on 06/03/2007 or 08/24/2008 (at the latest.) For those tax liabilities that have not been paid within 10 years, IRS routinely seeks to extend the statute by seeking a written waiver from the taxpayer. (Defendant did not sign any such waiver, however, based on “fake” 1999 bankruptcy data input into Defendant’s IMF record, the IRS extended the Statute of Limitations to 2010, without even notifying Defendant.) Under the Internal Revenue Service Restructuring and Reform Act of 1998 (“RRA",) the IRS is prohibited from seeking an extension of the collection statute from an individual taxpayer, except in relation to an installment agreement.

C.     Strongly advising Defendant (falsely) that neither an offer in compromise nor a payment plan would even be considered when she inquired about these options in order to pay what the IRS said that she owed. (The Taxpayers Bill of Rights, passed in 1988, says that IRS collectors cannot say that the Code doesn't allow installment arrangements);

D.    Applying monies collected via levies ($11,623.42) to the liability determined by SFR for Defendant and NOT to the liability based on her own filed 1040s ($12,447), nor even to the “adjusted liability” of $35,479.32 submitted by the IRS.

E.     Making repeated harassing threats to Defendant by telephone and letter that she was going to be prosecuted for fraud and her home was going to be imminently seized;

F.      Threatening to criminally prosecute Defendant for “money laundering”;

G.    Filing multiple Notices of Federal Tax Liens for the same tax years 1993 and 1994, against Defendant’s property to be SURE that she would NOT be able to borrow against the equity of her home in order to satisfy what the IRS said she owed;

H.    Telling Defendant that she would only “qualify” for a subordination of these multiple liens if she would commit a falsehood by falsely “admitting” to having offshore bank accounts;

I.       Labeling her within the Agency as a “besmirching taxpayer.” [See Exhibit G], indicating that internally, the IRS had fomented the intent to “get her.” RO Shatraw was attempting to falsely assert that Defendant had created a “sham” trust and was not filing tax returns on it, when in fact, trust was created by another person, and the IRS had actually answered, in writing, Defendant’s inquiry regarding the filing of tax returns for the trust, informing her that she was “not required to file tax returns on said trust.” [See Exhibit H1 and H2.] On August 26, 2008, Defendant requested, through the FOIA, the contents of her IMF file to determine what other misinformation and/or errors might have been added to her IMF. However, as of this writing today, October 15, 2008, she has not been provided with the requested IMF records even though the IRS has written her that it had “extended the statutory response date to October 15, 2008, after which you can file suit.” [See Exhibit I.] Must defendant now have to file a lawsuit in order to get these IMF records she has requested under the FOIA?

J.       Finally, but certainly not the least, the committing of forgery against Defendant, exemplified by the drawing of a negative caricature of Revenue Agent Shatraw (perhaps by Shatraw, himself,?) and the forging of Defendant’s “signature” on this drawing [See Exhibit J]. It doesn’t take a handwriting expert to determine that the aforesaid “signature” was not written by Defendant.   This is forgery, and forgery at common law has been held to be 'the fraudulent making and alteration of a writing the prejudice of another man's right.' "Forgery is a crime when it includes the representation of handwriting of another and the act of uttering as true and genuine any forged writing knowing the same to be forged with intent to prejudice, damage, and defraud any person." State v. May 93 Idaho 343, 461 P. 2d 126, 129.

      In general, when a federal statute uses, but does not define, a term of art that carries an established common law meaning, we will give that term its common law definition (unless, again, Congress has clearly evinced intent to the contrary). Moskal v. United States, 498 U.S. 103, 114, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990); Gilbert v. United States, 370 U.S. 650, 655, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962); see, e.g., Drakes, 240 F.3d at 249 (examining common law definition of forgery for the purpose of determining whether Delaware statute constituted "an offense relating to ... forgery" under § 1101(a)(43)(R)). The sparse case law discussing the scope of forgery at common law tends to support Richards' contention that forgery itself requires a "false making." Gilbert, 370 U.S. at 656, 82 S.Ct. 1399 (internal quotation and citation omitted); see also United States v. McGovern, 661 F.2d 27, 29 (3d Cir.1981) ("Common law forgery has three elements: (a) The false making or material alteration (b) with intent to defraud (c) of a writing which, if genuine, might be of legal efficacy."); United States v. Maybury, 274 F.2d 899, 903 (2d Cir.1960) (noting that "an essential element of the crime of forgery is making the false writing"); accord 36 Am.Jur.2d Forgery § 1 (2001) (defining forgery as "the fraudulent making or alteration of a writing to the prejudice of another's rights"); 37 C.J.S. Forgery § 2 (1997) (defining forgery as the "false making or materially altering ... of any writing"). In addition, the Model Penal Code, to which we have also referred for definitions of terms that the INA does not define, see Sui, 250 F.3d at 115, does not define "forgery" to include possessory offenses. Model Penal Code § 224.1 (1980).

III. For the above facts and reasons, Defendant respectfully submits this MOTION FOR DISMISSAL OF PLAINTIFF’S PETITION FOR JUDICAL APPROVAL OF LEVY UPON A PRINCIPAL RESIDENCE.

Respectfully submitted this 15th Day of October, 2008.

_____________________________

Jeanne Patriot
Defendant, pro se
Tampa , Florida 33603

All rights reserved without prejudice

CERTIFICATE OF SERVICE

I hereby certify that on or about this date, I mailed a copy of this MOTION TO DISMISS PETITION FOR JUDICIAL APPROVAL OF LEVY UPON A PRINCIPAL RESIDENCE to the following parties by First Class Mail:
Robert E. O’Neill United States Attorney
Middle District of Florida
U.S. Department of Justice
400 N. Tampa Street, Suite 3200

Tampa, Florida 33602

Stephen C. Dowdell Trial Attorney, Tax Division