IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICE OF MISSOURI
SOUTHEASTERN DIVISION
James S. Patriot )
Petitioner )
)
)
) Case NO.1 :04-MC-xxxx
v. )
UNITED STATES OF AMERICA; ) MEMORANDUM OF LAW IN OPPOSITION
MICHAEL A. PRICE; REBECCA S. ) TO THE UNITED STATES' MOTION TO
U.S.BANK; and WOOD & HUSTON BANK, ) DISMISS OR, IN THE ALTERNATIVE,
FOR ESSNER; UNION PLANTERS BANK; ) SUMMARY JUDGEMENT
)
Respondents. )
Revenue Agent Rebecca S. Essner issued IRS Summonses to the (1) U.S. Bancorp Center in Minnesota: (2) Union Planters Bank Operations Center in Illinois; and (3) Wood & Huston bank in cape Girardeau, Missouri, as part of her examination of the federal income tax liabilities of the petitioner, James S. Patriot "petitioner" for the 2001, 2003 taxable years. Patriot, being a pro se litigant, responded on August 911\ 2004 by personal service upon the three banks above warning them that he intended to protect all of his rights to privacy under the Constitution for the United States of America with all rights reserved. See Exhibit 3.
The petition to quash was filed 36 days after notice of the initiation of summonses because petitioner being a sovereign citizen of the Missouri republic of the freely associated compact states declares that he is free to sue and be sued at will without prejudice. This Court has subject matter to entertain his petition to quash. This Court has jurisdiction under IRC § 7609(h) because all three of the summoned parties are located and doing business within the Eastern District of Missouri. This case accordingly, should be continued because the Court has subject matter jurisdiction over the three above and IRS and it is a matter of Judicial Economy.
Material facts in dispute
For purposes of this motion only, the facts are assumed to be as set forth in the petition to quash (doc. # 1) and amended petition (doc. #3) filed in this civil action.
1. Revenue Officer Essner has no Authority to issue Summonses (Forms2039) for petitioners' personal records held by (1) the U.S. Bancorp, (2) the Union Planters Bank, nor (3) the Wood & Huston Bank because she had no jurisdiction over petitioner or his property.
2. Revenue Officer Essner and U.S. Attorney Price et. al. have individually and collectively conspired to violate petitioners 4th and 5th amendment.
3. Revenue Officer Essner and u.s. Attorney Price declares under IRC §7609(h) that Court lacks subject matter jurisdiction over the amended petition in this case insofar as it seeks to quash the IRS summonses issued to third parties in Minnesota and Illinois because the summoned parties are located and doing business in this judicial district.
1. Whether IRS has authority to tell the Court it lacks Subject matter jurisdiction to consider Petitioner's amended petition to quash the IRS summonses issued to the summoned parties on July 13,2004.
2.Whether the IRS has authority to question the Court on subject matter jurisdiction over the amended petition in this case under IRC § 7609(h) insofar as it seeks to quash the IRS summonses issued to third parties in Minnesota and Illinois because the summoned parties are located, licensed and doing business in this judicial district.
I. THIS COURT HAS SUBJECT MATTER JURISDICTION OVER PLAINTIFF'S PETITION TO QUASH THE SUMMONSES.
A. The Petition to Quash is not untimely
In the Bill of Rights, Amendment 4 Clause 1 it states" "The right of the people to be secure from unreasonable searches or seizures of themselves, their houses, their papers and effects cannot be violated. In the Bill of Rights, Amendment 5, clause 4 it states" No Individual can be forced to testify against himself'. Amendment 5, Clause 5 states" No person may lose his life, liberty or property except by due process of law." The act of obtaining the personal records sought by Agent Essner and U.S. Attorney Price et al could be used to violate Petitioner's Rights as stated supra. The Government has a duty to protect American Citizens. The Court has and should exercise its' Jurisdictional powers to ensure same supra.
Petitioners' case is similar to, U. S. ET AL. v. LASALLE NATIONAL BANK, 437 U.S. 298, The Court held that summonses issued under IRC 7602, 26 USC 7602, were unenforceable. Their Decisions were based on the following:
a. Congress has not categorized tax fraud investigation into civil and criminal components but has created a tax enforcement system in which criminal and civil elements are inherently intertwine, and any limitation on the good-faith use of an IS summons must reflect this statutory premise. Pp.308-311.
b. To enforce a summons under 7602, the primary requirement is that it be issued before the IRS recommends to the Department of Justice the initiation of a criminal prosecution relating to the subject matter of the summons. This is a prophylactic rule designed to protect the standards of criminal litigation discovery and the role of the grand jury as a principal tool of criminal accusation Pp. 311-313.
c. Enforcement of a summons is also conditioned upon the good faith use
of the summons authority by the IRS, which must not abandon its [437 U.S.298, 299] institutional responsibility to determine and to collect taxes and civil fraud penalties. That a single special agent intends only to gather evidence for a criminal investigation is not dispositive of the good faith of the IRS as an institution. Those resisting enforcement of a summons must disprove the actual existence of a valid civil tax determination or collection purpose by the IRS Pp 313-317.
d. On the record here respondents have not shown sufficient justification to
preclude enforcement of the summonses in question, absent any recommendation to the Justice Department for criminal prosecution and absent any showing that the special agent already possessed all the evidence sought in the summonses or that the IRS in an institutional sense had abandoned pursuit of the taxpayer's civil tax liability. Pp 318-319. 554 F 2d 302, reversed with directions to remand. Supplement to the above decision is Donaldson v. United States, 400 U.S. 517 (1971). District Court correctly refused to enforce IRS summonses when it specifically found that the special agent who issued them "was conducting his investigation solely for the purpose of unearthing evidence of criminal conducts".
In Reisman v. Caplin, 375 U.S. 440, 449 (1964), the Court said it was an improper use of the summons" to serve it solely for the purpose of obtaining evidence for use in criminal prosecution" Again in United States v. Powell, 379 U.S. 48, 57-58 (1964) "A court may not permit its process to be abused. Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation." Ibid. (Footnote omitted).
Also, in Abel v. United States, 362 U.S. 251 (Mass. 1960) The courts state
The likelihood that discovery would be broadened or the role of the grand jury
infringed is substantial if post-referral use of the summons authority were permitted.
B. This Court has subject matter jurisdiction over the IRS Summonses issued to the Summoned Parties because they are located in Missouri The amended petition must also be given Due Process, subject matter jurisdiction by the Court insofar as it seeks to quash the IRS summonses issued to the U.S. Bancorp Center in Minneapolis, Minnesota and the Union Planters Bank Operations Center in Belleville, Illinois because Under IRC § 7609(h)(1) the "United States district Court for the district within which the person to be summoned resides or is found" may exercise jurisdiction over a petition to quash. The U.S. Bancorp Bank and the Union Planters Bank are located or to be found in the Eastern District of Missouri, the amended petition to quash must be allowed. Should the Court dismiss for lack of jurisdiction, Petitioner would be greatly harmed and the Court would not be acting reasonably for Judicial Economy. The Petitioner would have to file even more Law Suits to protect his rights.
II. THE INDIVIDUAL FEDERAL DEFENDANTS MUST NOT BE DISMISSED AS PARTIES TO THIS ACTION.
Agent Essner and Assistant United States Attorney Michael A. Price et al defendants in this Lawsuit should not be dismissed as parties to this action. Should the Court decide to enforce Petitioners' Motion to quash summonses supra, and it is discovered that Agent Essner and Assistant United States Attorney
Michael A. Price has acted before the courts decision Petitioner reserves all rights to prosecute under the United States Criminal Code Section 242, Deprivation of rights under color of law, " Whoever, under color of any law, statute, ordinance, regulation, or custom Willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the constitution of laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color or race, than are prescribed for the punishment of citizens, shall be fined not more than $10,000.00 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life"
CONCLUSION
Based on the foregoing, this action should not be dismissed for lack of subject matter jurisdiction.
Dated this 3rd day of September 2004.
________________________________________________
James S. Patriot
Litigant, Pro Se