Bob Freeman Petition to Quash Summons

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA

ROBERT FREEMAN ) Plaintiff ) CA#________________ v. ) DEPARTMENT OF THE TREASURY; ) PNCBANK, aka; ) HARBOR FEDERAL SAVINGS BANK, aka; ) NATIONAL CITY CORPORATION BANK; ) PETITION TO QUASH SUMMONS Defendants ) ______________________________________) or in the alternative, INJUNCTION

This is an action under the Special Procedures for Third Party Summons Act, 26 USC §7609, to halt the above-named third-party record keeper from revealing Plaintiff’s private records to the Internal Revenue Service, and to quash the summons.

Jurisdiction

This court has jurisdiction over this action pursuant to 26 USC 7609(h), 28 USC §1331, §1340, §1346, and the First, Fourth, Fifth, Ninth and Tenth Amendments to the US Constitution.
Plaintiff is a citizen of the United States and the State of Fantasy in which he resides and is entitled to the protection of its laws. Defendant third-party record keeper is a resident of or is found in this district.
According to www.dictionary.findlaw.com and other dictionary sources, summons and subpoena are synonyms both requiring a party to appear (in court) as a witness or to command the production of evidence.
Summons and subpoena are interchangeable within §§7602,7609, 7635, etc.

Facts

The Defendant Department of the Treasury issued a Tax Court Subpoena in lieu of issuing a proper administrative summons in accordance with §7609 to the Defendant Bank PNC Bank for Plaintiff’s financial records (exhibits A and B).
Defendant Department of the Treasury did not inform the Plaintiff directly of any subpoena or summons.
On January 6, 2012, Rayna L. Walker, the Records Custodian of the PNC Bank contacted the Plaintiff with a copy of the summonses which were sent via US Mail stating she had “been served with a legal document directing it to produce certain records involving [Plaintiff’s] accounts with the bank.” The letter goes on to inform Plaintiff of the Bank’s intention to provide the documents “on or after the return date that is listed in the papers”, “in the absence of a court order directing the bank not to comply with this document”.
PNC Bank was given two sets of summonses: one for Robert Freeman’s financial information as an individual and the second for Robert Freeman’s financial information on behalf of Freeman’s Business. It is both of these summonses that the Plaintiff brings this action.
The Defendant, Department of the Treasury only served the Bank with the summonses, but did not forward them to the Taxpayer under §7609.
Plaintiff currently has a case pending in the United States Tax Court for the years listed on the summons which the records are being sought for. (USTC Docket#002193-10) This case is scheduled for hearing on March 5, 2012 in Jacksonville, FL.
According to law, Plaintiff, a person entitled to Notice of the Summons under IRC 7609(a), has the right to begin these proceedings to quash such summons not later than the 20^th day after the day such notice is given, and should mail within 20 days from the date of Notice at the address shown on the summons by registered or certified mail a copy of this petition to (A) the third-party record keeper who received the summons, and (B) to the IRS Officer before whom the summoned person is to appear at the address shown on the summons.

Purpose of Summons

According to §7602(a) the IRS has the authority to issue a summons for the purposes of “…ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability…” Therefore the Secretary would need this information before a Substitute for Return was prepared or tax examination changes were made and before Plaintiff petitioned the Tax Court.
The purpose of a summons, according to U.S.C. §7609(b)(2)(A) is to gain information regarding taxpayers in an investigation to collect taxes.

“To enforce an IRS summons, the IRS must establish a prima facie case to demonstrate its “good faith” that the summons; (1) is issued for a legitimate purpose; (2) seeks information relevant for that purpose; (3) seeks information that is not already within IRS possession; and (4) satisfies all administrative steps required by the United States Code.”

See United States v. Powell, 379 U.S., 48, 57-58, 85 S.Ct. 248, 254-255 (1964); Fortney v. United States, 59 F.3d 117, 119 (9^th Cir. 1995).

Therefore it is Plaintiff’s contention that the Internal Revenue Service cannot make any showing greater than an "idle hope" of finding something, as required by the decision in United States v. Richards, 631 F. 2d. 341, 345 (4th Cir.,1980) and that the summonses have been issued in "bad faith" contrary to Powell, supra,
It is well settled precedent that a summons must state the “liability” (actual or ostensible) for which it is issued in compliance with the requirements of 26 U.S.C. §§ 7602(a), 7609(a)(3) , I.R.M. §§ 4022.62(1) and 4022.63, and 26 C.F.R. § 1.6001-1. The summonses issued by the Service in this case fail to state any liability, actual or ostensible for which purpose the summons may have been issued. It is clear on the face of the summons that Defendant has not cited any authority to issue and enforce the summons in question.
Internal Revenue Code §7602(a)(1) authorizes the IRS "[t]o examine any books, papers, records, or other data which may be relevant or material" to "... "determining the liability of any person for any internal revenue tax." However, in order to force compliance with the summons the IRS must clearly show a "realistic expectation" that the information sought would be "relevant or material" to the legitimate purposes of the summons, and is not merely a "fishing expedition" conducted in the "idle hope" that they will find something. United States v. Bisceglia, 420U.S. 141 (1975); United States v. Richards, 631 F. 2d 341, 345 (4th Cir., 1980); United States v. Harrington, 388 F. 2d 520, 524 (2d Cir., 1968).
The burden is upon the United States to show that the information sought is "relevant to proper purpose" United States v. Euge, 444 U.S. 707, 712 (1980); United States v. Huckaby, 776 F. 2d 564, 567 (5th Cir., 1985). It is readily apparent from the face of the summonses that Defendant claimed no "legitimate purpose" in issuing the summonses. Therefore, the IRS has no "legitimate purpose," for the issuance of the summons. Plaintiff is unable to find published in the federal register any notice that opening a bank account and creating signature cards or depositing of monies in one's bank account amounts to a violation of any internal revenue law. Further, the IRS has failed and refused to identify any tax law which Plaintiff is being investigated under, which indicates that this summons is clearly a "fishing expedition" devoid of any "realistic expectation" and does not rise to any level greater than "idle hope." United States v. Richards, 631 F. 2d at 345.
Absent legal authority for issuance and legitimate purpose for enforcement of the summonses, nothing in Porter's bank records could possibly give rise to a "realistic expectation" of those records being relevant to any legitimate investigation. Thus, Plaintiff contends that the summonses are issued in "bad faith" with no purpose other than to harass and intimidate. It is unclear at this time what "bad faith" purpose the Service is pursuing in issuance of this Summons. Thus, discovery and an evidentiary hearing will in all likelihood be required to determine the true purpose of this Summons [Powell, supra 379U.S. at 58; United States v.McCarthy, 514 F. 2d. 368 (3rd Cir., 1975].

Notice

The Defendant, Department of the Treasury only served the Bank with the summonses, but did not forward them to the Taxpayer under §7609. The purpose of the section is to give Taxpayer notice of rights to protect personal documents from unlawful seizure or inspection.
U.S.C. §7602(a)(2) states that the Secretary may request records through a summons. §7602(c)(1) states that “An officer or employee of the Internal Revenue Service may not contact any person other than the taxpayer with respect to the determination or collection of the tax liability of such taxpayer without providing reasonable notice in advance to the taxpayer that contacts with persons other than the taxpayer may be made..” §7602(c)(3)(B) states that this subsection shall not apply “if the Secretary determines for good cause shown that such notice would jeopardize collection of any tax or such notice may involve reprisal against any person; or (C) with respect to any pending criminal investigation.”
The Plaintiff has not been given any indication that he is under criminal investigation; to his knowledge, no Justice Department referral has been made. Therefore, the Plaintiff was entitled to know about the summonses to the bank prior to the banks being contacted. Also, to the Plaintiff’s knowledge, no “good cause shown that such notice would jeopardize collection of any tax…” has been submitted to justify this subversion of the Plaintiff’s rights as a taxpayer.
If a Justice Department referral has been made, no summons can be issued under §7602 nor any action be taken against the Plaintiff under §7604.
There is an ongoing case in the United States Tax Court on this matter and for the tax years for which information is sought (2004, 2005, 2006, 2007). This case is scheduled for trial on March 5, 2012 and Plaintiff is just now learning of the IRS summons.
This information should have been sought and retrieved via legal means prior to the issuing of Notices of Deficiencies and prior to the commencing of the Tax Court case. The Tax Court case is set to be heard before the Court on March 5, 2012. Under Tax Court Rule 70, all discovery is to be closed by 45 days prior to the hearing date. The discovery window is now closed. The evidence sought by the Internal Revenue Service cannot be used in this case to assess the Plaintiff any further taxes. Because the Plaintiff has received no copies of any information delivered under these summonses within the 45 day window, this information cannot be used in this Tax Court case for these tax years.
There was no indication in any of the documentation produced in the above mentioned Tax Court case that the Plaintiff was under any criminal investigation or that the Department of the Treasury would be seeking bank records to supplement the information they have already used.
The action by the Department of the Treasury has violated a number of provisions in the statute. The Department of the Treasury did not properly notify the Plaintiff of the intention to contact the Defendant Banks for his records or his business’ records pertaining to tax years 2004, 2005, 2006, and 2007.
U.S.C. §7609 states that the taxpayer must be notified “within 3 days of the day on which such service is made” of the summons to the Defendant banks. The Defendant Department of the Treasury did not notify the Plaintiff of any request made to the Defendant PNC Bank. The Defendant PNC Bank notified the Plaintiff of the request 60 days after the summonses and informed the Plaintiff that it intends to hand over the records. It has been over 75 days since the summonses were issued and Petitioner has not yet received proper notice of these summonses.
The Plaintiff has not received sufficient notice of summons, prior to or after the issuance of the summonses in accordance with §7609(a)(2) “Such notice shall be sufficient if, on or before such third day, such notice is served in the manner provided in section 7603 (relating to service of summons) upon the person entitled to notice…”
The Court in C&J Trust v. United States, 2002 WL 1987417 (E.D.Cal.), stated “Section 7609’s primary purpose is ‘to require that the target taxpayer be given notice, so that he would be able to assert appropriate defenses.’” (citing United States v. Pittsburgh Trade Exchange, Inc., 644 F.2d 302, 305 (3^rd Cir. 1981); United States v. First Bank, 737 F.2d 269, 271 (2^nd Cir. 1984). “’The plain meaning’” of section 7609(a) requires that notice be given only to the person(s) ‘identified’ in the summons.’” (citing again First Bank, 737 F.2d at 273. Id. at. 2.
The Plaintiff would like to convey, in simple terms, the violations he believes took place which led to the infringement on his due process rights as a taxpayer and which brought rise to this “Petition to Quash or in the alternative, Injunction”.
1. The Service has no legitimate purpose in obtaining Plaintiff’s bank records
2. The Plaintiff was not given sufficient notice of any communication planned or which took place within three days of the request;
3. In fact, the Plaintiff never received notice, sufficient or otherwise, by the Defendant Department of the Treasury, of the summonses issued to any of the Defendant banks;
4. Discovery in the Tax Court case has now been closed so that any records released would not be admissible in this case;
5. The Defendant PNC Bank plans to release the records in violation of statute.

WHEREFORE, the Plaintiff prays this Court hold that the Defendant has not shown proper purpose for the summons and use of Plaintiff’s banking records; Plaintiff did not receive proper or sufficient notice of the summonses issued on Defendant Bank; and to quash the summonses issued on him personally as well on his business records, or in the alternative issue an injunction on incoming records; and that the records already released be destroyed as they were obtained in violation of §7609, according to the Fruit of Poisonous Tree Doctrine which is premised on suppressing evidence that “is in some sense the product of illegal governmental activity.” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (emphasis in original).

Respectfully submitted,

Date: January 26, 2012

__________________________
Robert Freeman, pro se
Both in individual capacity and
As owner of Plaintiff’s Business

CERTIFICATE OF SERVICE: I certify that on this date, I delivered via regular mail in a postage paid envelope or by hand delivery, a copy of the foregoing Petition to Quash or in the alternative, Injunction to the following persons at the addresses below:

Department of the Treasury
Internal Revenue Service
Office of Division Counsel
ATTN: James Bamburg
400 West Bay Street, Suite 240
Jacksonville, FL 32202

PNCBank
ATTN: Rayna Walker, Records Custodian
500 First Avenue
Pittsburgh, PA 15219

On behalf of United States:
U.S. Attorney General
950 Pennsylvania Ave, NW
Washington, DC 20530
U.S. District Attorney
501 West Church St. Ste 300
Orlando, FL 32805

January 26, 2012

___________________________________
Robert Freeman
123 Main St. Freedom, SC 12345