Written Communication Address:
Jon N C.
Scottsdale, Arizona 85251
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
JON N C., )
Petitioner, ) Case No.:MC09-xxx
vs. )
THE UNITED STATES; ) MOTION FOR LEAVE OF COURT TO FILE SURREPLY
WELLS FARGO BANK, NA; AND )
JPMORGAN CHASE BANK, NA, )
Respondents. ) (Assigned to the Honorable Roslyn O Silver)
Petitioner Jon N C. (“Petitioner”) hereby files with this honorable court this request for permission to file a Surreply in response to Respondent United States’ (“Respondent”) reply [Doc. No. 19, hereinafter “Reply”] to Petitioner’s response [Doc. No. 11] to the United States’ motion and memorandum [Doc. Nos. 7 & 8] to dismiss Petitioner’s petition to quash certain Internal Revenue Service (“IRS”) Financial Records Summonses of third party record holders maintaining Petitioner’s private banking records as custodian/trustee. Petitioner files said motion upon the following grounds:
1) Respondent filed its Reply to petitioner’s response [Doc. No. 19] on 10/21/2009. Petitioner’s Reply brings in new material, introduces new factual and legal arguments, makes mistakes which need to be corrected, makes assertions that need to be rebutted, takes a position that must be contested, and makes misstatements that need to be countered and/or denied.
Our legal system depends upon the proposition that silence condones that consent: failure to deny is deemed admission. Therefore, Petitioner must deny that which respondent has recently introduced the court and which is simply not true. A copy of Petitioner's surreply shall be submitted forthwith, and Petitioner requests this honorable court to grant leave for Petitioner to file the same.
2) The new material introduced by Respondent, the new errors, omissions, and false or unsupported statements are as follows:
a) False statements: The parties do NOT agree that “the summons in question were issued by the IRS in aid of collection of [Petitioner’s alleged 2007 tax liability].” See Reply at 2.
b) False and misleading statements: Respondent misleads the court by stating that Petitioner asserts that “only summonses issued solely in the aid of collection are excepted from notice (and thus prohibited from being challenged in court).” See Reply at 2.
c) Respondent’s case law misleads: Respondent’s inference that a holding in the Seventh Circuit is controlling over uncontested law as put forth by the Supreme Court of the United States is misleading and off point for the instant case at bar.
d) New Information: Respondent fails to meet prima facie case evidencing good faith, as required by the Ninth Circuit and other courts who “repeatedly have confirmed that an affidavit of the investigating agent attesting to satisfaction of the four Powell elements is itself adequate [read required] to make the requisite prima facie showing. See, e.g., Sylvestre v. United States, 978 F.2d 25, 26 (1st Cir. 1992) (per curiam), cert. denied, 113 S. Ct. 1606 (1993); United States v. Lawn Builders of New Eng., Inc., 856 F.2d 388, 392 (1st Cir. 1988); Liberty Fin. Servs. v. United States, 778 F.2d 1390, 1392 (9th Cir. 1985).
e) Lies by omission: Respondent correctly states the law: “a summons can be issued for both civil and criminal purposes as long as there has not been a referral to the Department of Justice for prosecution. §7602.” See Reply at 3, yet Respondent attempts to divert the Court’s attention from Request for Production of Documents for all relevant tax years, including 2005 through 2008, by stating in affidavit form that “there has been no referral to the Department of Justice of [Petitioner’s tax matters] for the tax period ending December 31, 2007.” See Second Declaration of Revenue Officer Debra Vahe at ¶ B. (emphasis added).
f) Respondent’s Misstatement: Petitioner supports allegations of “institutional commitment to Prosecute” with facts and inference, lacks the information that only the Internal Revenue Service, Department of Justice and related agencies have under their exclusive control, and not “naked assertions” as suggested by Respondent. See Reply 4.
g) Respondent misleads the court in summonses purpose: Initially, Respondent’s purpose for summonses is to “seek[] recovery of . . . refund for tax year 2007” by way of discovering existing assets and financial transfers [See Declaration of Revenue Officer Debra Vahe ¶ 2], yet Respondent continues to seek information predating the refund deposit by nearly three (3) years thereby demonstrating slight of hand and misleading purpose.
h) Use of “Administrative Summons” terminology misleads the Court: While each government agency has myriad “administrative summons” forms, the IRS third-party summonses at issue are financial summons for records, with allowance for interested parties to petition to quash said summonses by Congressional exception provided via I.R.C. § 7609, and not a “collections” summons, which has no such exception; said issue needs to be flushed out and expanded upon.
Numerous reasons and details surrounding the instant matter in addition to those identified deserve to be addressed and exposed for the misguidance that they individually and collectively represent. Without a surreply, Petitioner will be denied due process. Petitioner will file Surreply forthwith, or in conjunction with the filing of the instant motion.
RESPECTFULLY submitted this 23rd day of October 2009,
________________________
Jon N C.
Petitioner pro se
CERTIFICATE OF MAILING
I hereby certify that service of the foregoing MOTION FOR LEAVE OF COURT TO FILE SURREPLY has been made this 23rd day of October by hand-delivery, or by depositing a copy thereof in the United States Mail in a postage prepaid envelope, certified, return receipt requested, addressed as indicated below.
________________________
Jon N C.
Petitioner pro se
ORIGINAL of the foregoing hand-delivered This 23rd day of October, 2009, to:
Clerk of the Court
401 W. Washington Street, Suite 130, SPC 1
Phoenix, AZ 85003-2118
COPY of the foregoing mailed this ____ day of October, 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 ____ day of October, 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:________________________