UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
JON N C., )
Petitioner, ) Case No.:09-MC-008xxxx
vs. )
UNITED STATES OF AMERICA; ) SUPPLEMENT
WELLS FARGO BANK, NA; ) TO PETITIONER’S PETITION TO QUASH SUMMONS
AND JPMORGAN CHASE BANK, NA, ) (Assigned to the Honorable Roslyn O Silver)
Respondents )
_____________________________)
Petitioner Jon N C. (Petitioner) hereby files with this honorable court this Supplement to Petitioner’s Petition To Quash Summons. Petitioner files said motion upon the following new information and grounds, and said motion is supported by affidavit filed concurrently herewith:
I. IRS states that enforcement proceedings are ongoing and ongoing investigation by law enforcement is in process.
On or around September 14, 2009, Affiant caused to be filed a Freedom of Information Act (“FOIA”) request with Department of Treasury, Internal Revenue Service (“IRS”). IRS received said FOIA request and responded to same on October 22, 2009. See Exhibit A, attached hereto and incorporated herein (“FOIA Response Letter”). FOIA Response Letter submitted by Vivian King, Sr. Disclosure Specialist, Disclosure Office 11 (“King”), states in pertinent part: “[o]f the 33 pages located in response to your request…I am withholding 15 pages in part under FOIA exemption (b)(7)(A)…[wherein] records or information compiled by law enforcement purposes…[are exempt and] production of such records could interfere with enforcement proceedings.”
The proof that a criminal investigation has been initiated against Affiant is now in printed word, having been acknowledged and so stated by an IRS employee; Affiant is under an ongoing criminal investigation initiated by one or several agencies with alleged investigatory and enforcement authority; the same cannot be rebutted.
II. Internal Revenue Service Criminal Investigation summons for fingerprint and handwriting exemplar is beyond the scope of civil compliance with tax laws and is indicia of ongoing criminal investigation.
On or around October 27th, 2009, Tina Dandre (“Dandre”) of Internal Revenue Service Criminal Investigation (“IRS-CI”) made attempt to contact Affiant by first contacting at least two (2) third parties with whom Affiant has had professional or educational relationships. Affiant proactively contacted Dandre so that Affiant could work directly with an IRS representative who could facilitate settlement of any sum certain liabilities, if any. Dandre requested an “informal meeting” wherein Dandre could inquire about certain factual issues related to a certain tax account.
On November 5th, 2009, Affiant met with Dandre in good faith to bring resolution and settlement to any outstanding matters; both parties were accompanied by a witness and notetaker. At the end of the meeting, Dandre attempted to serve upon Affiant IRS Form 2039, Summons for the stated purpose of delivering “Handwriting and Fingerprinting Examination.”
For the IRS to demand exemplars, these exemplars should be “essential and necessary” to an investigation and would be used solely as a standard of comparison to determine whether, for example, Affiant is the author of certain writings or documents that are in evidence. Since this is a tax matter, then how could fingerprints, for example, be considered “essential and necessary” as to whether a person had filed tax return or how much is owed?
As evidenced by the withheld information on the FOIA request referenced herein, IRS-CI maintains some “evidence” within its files, including but not limited to documents, handwriting, photographs, fingerprints, or palm prints, that the IRS suspects belong to Affiant and IRS-CI seeks to identify Affiant with same for criminal prosecution purposes.
CONCLUSION
The IRS-CI request for fingerprint examination, as well as the withheld FOIA documents, are clear evidence and indicia of criminal investigation, and is highly indicative of the true direction of the case at bar. Therefore, Petitioner respectfully moves this court to find in favor of Petitioner’s Petition to Quash Summons. The Petitioner respectfully moves this court to grant Petitioner’s Petition To Quash Third Party Summons, or in the alternative, to grant Petitioner’s Request for Production of Documents First and Second, and thereby permit evidentiary proceedings, as was intended by 26 CFR §301.7609.
Finally, and also in the alternative, should this Court not quash the summons, Petitioner requests that the Court provide in its order that the IRS/DOJ not be allowed to use information gathered by the summons in a criminal case. The Government would not object to this provision in the final order because they have stated all along that this civil summons will be used strictly for a civil tax liability case. A proposed order has been lodged previously with this court, having been filed concurrently with Petitioner’s Surreply.
RESPECTFULLY submitted this 19th day of November 2009,
By:________________________
Jon N C.
Petitioner sui juris
CERTIFICATE OF MAILING
I hereby certify that service of the foregoing MOTION FOR LEAVE OF COURT TO FILE SURREPLY has been made this 19th day of November by hand-delivery, or by depositing a copy thereof in the United States Mail in postage prepaid envelope, certified, return receipt requested, addressed as indicated below.
By:________________________
Jon N C.
Petitioner sui juris
ORIGINAL of the foregoing hand-delivered This 19th day of November, 2009, to:
Clerk of the Court
401 W. Washington Street, Suite 130, SPC 1
Phoenix, AZ 85003-2118
COPY of the foregoing mailed this 19th day of November, 2009, to:
United States Attorney
District of Arizona
Diane J. Humetewa
Two Renaissance Square
40 N. Central Avenue, Suite 1200
Phoenix, AZ 85004
COPY of the foregoing mailed this 19th day of November, 2009, to:
Steven P. Johnson
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 683, Ben Franklin Station
Washington, D.C. 20044-0683
By:________________________