UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA, )
) Case No. 068:08-CV-01265JDW
Plaintiff )
)
v. )
)
Betty J. Patriot )
)
Defendant )
____________________________________ )
OBJECTION TO
PETITION FOR JUDICIAL APPROVAL
OF LEVY UPON A PRINCIPAL RESIDENCE
I. Betty J. Patriot hereby files in this court of record, her objection to the PETITION FOR JUDICIAL APPROVAL OF LEVY UPON A PRINCIPAL RESIDENCE filed by the IRS on the grounds that:
1. She was the victim of identity theft in 1993 and 1994, whereby someone was trading stocks and bonds using her name and social security number. She requested, but did not receive, assistance from the IRS to effect a solution to this matter.
2. The stocks and bond transactions showing up on 1099 forms transactions were not hers, and since she could not get help from the IRS to resolve the situation with the fraudulent 1099s, she did not file 1040s for these years (1993 and 1994). She subsequently learned that the IRS had filed a Substitute for Return (SFR) in her name for 1993 and assumes that a SFR was also filed for 1994;
3. The Revenue Officer Bryan Morris has stated in its petition that the liability is owed and the amount stated is correct. As stated above, this is not true. Any and all assessments made by the IRS, based on the IRS-generated Substitute for Return (SFR) for Betty J. Patriot, are incorrect and invalid. The IRS is legally obligated to accept an individual’s tax return instead of their own Substitute for Return. That's because an individual’s tax return has his/her signature on it, and that means he/she has agreed to a definite tax liability.
4. Betty J. Patriot’s adjusted gross income as reported on her own late-filed form 1040 for 1993 (and accepted by the IRS) was $58,918 and showed a tax liability of $11,652. [See Exhibits A1, A2: U.S. Individual Income Tax Return for 1993, 1994.] Therefore, the amount of the IRS assessment for 1993 of $53,276.00 (without interest and penalties), as stated by RO Bryan Morris, cannot be considered valid and correct, as this would make her IRS-assessed tax liability for 1993 to be 90.4% of her gross income. In addition the IRS-assessed tax liability of $2,171.00, for 1994, is also invalid and incorrect as it was also most-likely based upon an IRS-generated Substitute for Return (SFR) instead of Betty J. Patriot’s own filed 1040 assessment of $804.00.
5. The IRS has already taken from Betty J. Patriot via levies a total of $11,623.42:
6. The most amount that Betty J. Patriot could still possibly still owe for 1993 and 1994 tax years according to her own filed 1040’s is $823.58 (without penalties and interest). However, the IRS is claiming she has a tax liability of $35,479.32.
II. The IRS states in this petition that it has followed applicable law in the assessment and levying procedures and that the procedures relevant to the levy have been met. This is not true.
1. As described above, the IRS has made gross errors in the assessment process of Betty J. Patriot’ tax liability for 1993 and 1994.
2. In addition, the IRS has filed a total of four separate Notice of Federal Tax Liens against Betty J. Patriot’s home for the same tax years of 1993 and 1994, two of these NOFTLs having being filed for the exact same amount ($32,427.99) on the exact same date (10/12/2007), at the exact same time (10:12:11 a.m.), each prepared by a different IRS employee (E. Ravenal, prepared one on September 17, 2004; and Debra K. Hurst, prepared one on July 8, 2006.) However, both were signed by R.A. Mitchell for B. Morris.
3. According to Hillsborough County records, all of these 4 of these separate NOFTLs are still in effect for same property for the same tax years of 1993 and 1994. (See Exhibits D1, D2, D3, D4: Copies of 4 NOFTLs filed against property for 1993 and 1994 tax years). Whereas the total the IRS is claiming that the Betty J. Patriot’s total tax liability for 1993 and 1994 is $35,479.32, it appears that the total dollar amount “secured” by these active NOFTLs filed by the IRS against the Betty J. Patriot’s property for 1993 and 1994 could be as high as $267,072.96. In any case, these four NOFTLs have made it impossible for Betty J. Patriot to use the property as collateral to borrow money in order to pay what the IRS claims that she owes.
4. Betty J. Patriot was never properly notified of the filing of 3 of these 4 NOFTLs. IRC 6320 (a)(2) requires the IRS to notify the taxpayer in five business days of filing the notice of federal tax lien. Federal law requires that she receive a notice of her right to a Collections Due Process Hearing and a copy of the lien with in five days of filing. This was not the case.
5. Since Betty J. Patriot was not given proper notice of the filing of these NOFTLs, and was not notified of her right to a Collections Due Process Hearing, the IRS is in violation of it own procedures, and these NOFTLs are therefore invalid.
6. Therefore, the IRS statement that all procedures relevant to the levy have been met is erroneous, and is thereby being challenged.
III. The IRS has stated in this filing that no reasonable alternative for the collection of the taxpayer’s debt exists. This is not true.
1. In accordance with her own assessment ($12,456) on 1040s filed for 1993 and 1994 tax years (and accepted by the IRS,) and the fact that the IRS has taken via levies a total of $11,623.42, the most she could still possibly still owe for 1993 and 1994 tax years is $823.58 (not counting non-filing penalties and interest) which were assessed due to non-filing because of identity theft. If the penalties were to be removed, she would be able to arrange payment for amount of tax liability due. Once an individual files a return for any year that the IRS has filed a Substitute for Return for the individual, that individual’s return is to be used in determining amount owed, since an individual’s tax return has his/her signature on it, it means he/she has agreed to a definite tax liability.
2. Betty J. Patriot met with the IRS Revenue Officer assigned to her case, John Shatraw, on August 23, 2006, to determine the options available to her in order to satisfy the amount the IRS said she owed. She asked him about submitting an offer in compromise or a payment plan, and she was told that neither would be accepted by him or the IRS.
3. Betty J. Patriot now realizes that she was given erroneous information knowingly by RO Shatraw regarding submitting of an OIC or payment plan. Therefore, submittal of either an offer in compromise or a payment plan could still be an option for her if the amount of her tax liability determined by a valid and correct assessment, exceeds her immediate resources.
4. In order that she might be able to borrow money against the property to satisfy the purported tax liability, Betty J. Patriot requested that Revenue Officer Shatraw work with her on a subordination of liens for the Notice of Federal Tax Liens that had been placed against her property. He told her that if she admitted to having offshore bank accounts, (i.e. a blatant lie,) he would work with her on a subordination of liens, otherwise she would not quality for subordination of liens. She declined to perjure herself in order to “qualify” for a subordination of liens.
5. Subordination of Liens (so that she could borrow against the property,) could still be an option if the amount of tax liability, determined by a valid and correct assessment, exceeds her immediate resources. The just market value of her property, according to Hillsborough County Appraiser is $125,388, while her mortgage balance on an Agreement for Deed is $74,660 and would leave some equity to borrow upon. Two thirds of appraised value for quick sale would amount to $84,010;
6. Therefore, the IRS statement that no reasonable alternative for the collection of taxpayer’s debt exists is erroneous and is thereby being challenged.
IV. On the basis of the above stated relevant facts and reasons, Betty J. Patriot hereby requests that the aforementioned IRS submitted PETITION FOR JUDICIAL APPROVAL OF LEVY UPON A PRINCIPAL RESIDENCE not be granted.
CERTIFICATE OF SERVICE: I hereby certify that on or about this date, I mailed properly a copy of this OPPOSITION TO PETITION FOR JUDICIAL APPROVAL OF LEVY UPON A PRINCIPAL RESIDENCE to the following parties by First Class Mail:
Robert E. O’Neill Stephen C. Dowdell United States Attorney Trial Attorney, Tax Division Middle District of Florida U.S. Department of Justice 400 N. Tampa Street, Suite 3200 Post Office Box 14198 Tampa, Florida 33602 Ben Franklin Station Washington, D.C. 20044
________________________ Date: July 26, 2008 Betty J. Patriot Tampa, FL 33603