Jefferson K Davis
2271 W. Maryland Ave.
Fullcity, California 93823
In Pro Se

UNITED STATES DISTICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

Jefferson K. Davis, Pro Se )Petitioner, )-v- ) CASE NO.SA CV 04-01103 DOC (ANx)The United States and RBC Centura Bank ) ) OPPOSITION TO RESPONSE OF U S PETITION) TO QUASH SUMMONS AND REQUEST FOR Respondent ) ORDER TO SHOW CAUSE AND DECLARATION) OF LISA GONZALEZ ) )

Petitioner Jefferson K. Davis, pro se, one of the People, in this Court of Record, hereby files his response and opposition to the “Response of United States To Petition To Quash Summons; Petition To Enforce Internal Revenue Summons and Request For Order

To Show Cause; Memorandum of Points and Authorities; and Declaration of Liza Gonzalez” dated December 6, 2004 for all of the meritorious reasons that follow to wit:

1. The Respondent Summarily Denies Responses To Petitioner’s Arguments

The Respondent at page 1, line 24, dismisses the Plaintiff’s arguments with a “wave of the hand” calling them “…conclusions of law and petitioners characterization of the case for which no responses are required. If responses are required, denied.” They’ve provided not a scintilla of authority or any logical reason to support their position. Clearly, their blatant rejection of Petitioner’s valid arguments is a “slap in the face” to the “good faith” summons process of United States v. Powell.

In addition, there seems to be an underlying contempt for the Petitioner because he is defending himself “Pro Se”. The words are not there, but their action speaks louder than words. It is highly doubtful that a fellow bar member would elicit such a cavalier response to their Petition.

In light of the Respondents refusal to address the Petitioner’s arguments, he is compelled to protect himself by reiterating, for the Court, the arguments made in his Petition to Quash. The Petitioner will attempt to summarize, as much as possible, without losing the substance of his argument. At the same time, the Petitioner will provide as much factual information, as it pertains to him, based on his present knowledge of the case. From this point on the Petitioner will refer to himself as "Davis"

The courts have unanimously held that to obtain enforcement of a summons, the IRS must first establish its "good faith" by showing that the summons: (1) is issued for a legitimate purpose; (2) seeks information relevant to that purpose; (3) seeks information that is not already within the IRS' possession; and (4) satisfies all administrative steps required by the United States Code.

United States v. Powell, 379 U.S. 48, 57-58 (1964). (Emphasis added). Therefore, Davis asserts the following:

A. The summons fails to expressly state any legitimate purpose nor does it imply a legitimate purpose.

B The IRS has classified Davis as a “Tax Protester” and has abandoned in an institutional sense the pursuit a civil tax determination or collection purpose and has made an institutional commitment to make a referral to the Department of Justice for prosecution, as it would merely like to gather evidence to aid a prosecution. US v. LaSalle Nat. Bank, 437 US 46 248, 98 S Ct 2357 (1978).

The Agency placed on Davis’s 1995 Individual Master File (IMF) the code designation TC-148, which meant "Tax Protester" Latter, the Agency changed the designation to "nonfiler". However, regardless of the term used, the meaning and intent remains the same. As the old adage goes: a rose by any other name is still a rose.

C. The Service, having abandoned the pursuant of Davis's alleged civil tax liability, is attempting to use the summons for the impermissible purpose of gathering evidence solely for a criminal investigation, and is attempting to circumnavigate the traditional role of the grand jury as the principal tool of criminal investigation in our society, US v. LaSalle, supra. Davis has had no correspondence or any other contact with the Agency in over 7 years, until July 2004.This is when Agent Gonzales sent him a Certified Letter concerning tax returns for 2000, 2001 and 2002. Davis responded, in a timely manner, by Certified Mail with Return Receipt stating: that based on his understanding of the 1040 instructions he had "no filing requirements". Without

any further correspondence, the Agent issued a third-party summons to Davis's bank.

Two important issues are presented here:

(1) The Agency does not use Certified Mail with Return Receipt for their standard routine inquires. First class mail suffices for that purpose.

(2) The use of Certified Mail was to provide some sort of proof against Davis, in a criminal case, especially if he failed to respond to their letter. Davis suspects the reason behind this, is that, he is a named plaintiff in a lawsuit against the United States, which is explained in more detail in paragraph 5 below.

D. The IRS has made a formal recommendation to the Department of Justice for prosecution of Davis or has made an informal determination and withheld the formal recommendation in order to use this civil process to circumnavigate the decision of the Federal Courts.

E. The summons itself indicates that this is a criminal investigation as much of the information sought has no bearing on a civil investigation but is that generally exclusively used for criminal prosecution. Even if the Court could discover a general civil purpose for the tax investigation, this would not terminate judicial inquiry into whether the summons (or parts thereof) issued during investigation exceeded the services’ authority…If any one of many summons or parts thereof were issued solely for a criminal investigation, that particular summons should be suppressed, even in the face of an overwhelmingly civil purpose of the investigation as a whole. The IRS simply would lack statutory authority to issue that particular summons. US V. Genser 595 F 2d 146 (NJ 1979).

F. The Service only has the authority granted to it by congress. The Congress has given the IRS administrative summons powers in IRC §7603 and §7604 to be used only in civil cases and has not yet given this administrative agency mandatory criminal investigatory powers. Therefore, the IRS simply does not have the authority to summons those particular third party records, which would be used only in criminal prosecution. An examination of the "list of items" requested in the attachment to the summons proves this fact. The following records have no bearing in a "civil case", but are of a tremendous value in a "criminal prosecution":

(1) Account signature card, (2) Account application, (3) Credit and debit memos and advices, (4) Wire transfer authorizations, (5) Cashier checks, (6) Money orders, (7) Safe deposit box rental agreements, (8) Safe deposit box entry cards and visitation ledgers, (9) All Correspondence including copies of checks sent to you for payment, (10) Loan applications, (11) Financial statements, (12) Loan and credit files, (13) Credit/Debit/Charge Card applications, (14) Credit/Debit/Charge Card Monthly or Periodic Statements, (15) Credit Card Charges, (16) Debit Advices, (17) Cash Advances, and (18) If this loan has been sold or paid off, please the name, address, and phone number of the bank or mortgage company who paid or purchased the loan.

There is a total of 21 items on the list requested by Agent Gonzales that leaves only 3 items that are relevant to a civil case. The other 18 items are designed for gathering information for a criminal prosecution. The attachment to the summons is incorporated herein as Exhibit 1.

G. The information in the possession of the Respondent third-party is of a private nature and was not intended to be given to parties not authorized by Davis. Furnishing such personal and private information about Davis to the IRS or any other governmental body without Davis’s consent is a violation of his person, his privacy, his Constitutional rights, and his natural rights, which would and ought to be protected by the government.

H. The IRS summons are not issued in good faith as the information sought by the individual summons are too broad, too sweeping in detail, to be used by the IRS only to prove the actual existence of a valid civil tax determination or for a collection purpose. Almost all of the items sought by the summons are only needed by the Justice Department to aid in a criminal prosecution. The list of items request by Agent Gonzalez in her summons "speaks for itself". What more is there to say?

I. The IRS has failed to meet the procedural requirement of the summons authority, including the required provisions of 26 USC §7602, §7603, §7609, etc. The summons is patently defective on its face, filled out incorrectly by an unauthorized person, served incorrectly for an improper purpose, and violated the notice and hearing requirements. The agents have failed to comply with the mandatory procedures in IRS 7605 (c), have not secured the proper authorization nor given proper notice.

J. The summons was not issued in good faith, not conducted pursuant to a legitimate purpose, not relevant to any lawful pursuant. The information is already within the Commissioners possession; the required administrative steps have not been followed. The summons is an abuse of the administrative process and issued for the improper purpose of harassing and pressuring the Petitioner. US V. Powell, 379 US 78, 85 S Ct 248 (1964).

K. IRS Manual Supplement 9G-93, the procedural guideline for prosecuting those persons classified by said agency as "tax protesters", removes any discretion from the individual agents assigned to the case. MS 9G-93, IRM 9383.6 and other IRS procedures on persons similarly labeled as Petitioner, set forth a policy whereby the cases are totally criminal abinitio, to the extent that individual agents and the Service itself have not discretion or authority to compromise whatsoever in these cases. This manual is, by itself, the institutional commitment to prosecute.

L. IRC §7603 provides that the summons be “attested,” and this is mandatory. The IRS summons in this case is not attested or not attested properly, because, inter alia, it is neither notarized nor worded properly.

The government alleges that one opposing the summons bears the burden of disproving the actual existence of a valid civil tax determination or collection purpose. To meet said burden, Davis needs adequate pre-hearing discovery. Given sufficient discovery, Davis can prove:

A. No further existence of a continuing civil purpose.
B. A pre-existing institutional commitment to prosecute.
C. The failure of the summons to advance a civil purpose.
D. Improper purpose, political harassment, etc.

2. The Petitioner Is A Named Party To Class Action Lawsuit,
The United States has intentionally tried to deceive this Court by not addressing the material fact, as stated, in the Petitioner’s Petition that, "The plaintiff is a named party to the class action lawsuit, case number 04CV01211, filed in the United States District Court on July 19,2004. The suit is a petition for a redress of grievance concerning the illegal operation and collection of taxes by the Internal Revenue Service in addition to other noteworthy concerns. Injunctive relief is being sought against the IRS and DOJ for just such actions as are occurring in this present issuance of a summons in violation of the administrative and/or enforcement Laws of the Internal Revenue Code."

To Davis, the summons of his third party records, papers and other documents was a deliberate act of retaliation for seeking to hold the United States accountable to its Constitution’s limitations. Davis wonders, how many other plaintiffs of the lawsuit are receiving similar treatment by the Agency. Davis contents, therefore, that this is a violation of many of his Constitutional Rights and is not a legitimate purpose as required by United States v. Powell. This material fact alone is sufficient cause for the quashing of the 7609 Summons.

3. Petitioner Fails to State a Claim

The Respondent at page 2 – line 9, asserts as an Affirmative Defense that “Petitioner fails to state a

claim.” That assertion is in error and refuted by the petitioner. Davis clearly states a claim in his Petition to Quash Summons, “… to halt the above –named third party record keeper from revealing Petitioner’s private records to the Internal Revenue Service and quash the summons.” What could be clearer than that?

4. Lack Of Foundation To Support The Declaration Of The IRS Agent.

The Respondent answers at page 10, line 19 continuing on to page 11 that, “Accordingly, the filing of the petition to IRS summons and the declaration of the issuing IRS agent establishes the government’s prima facia case for enforcement of the summons.” The Declarant states at page 14, line 14 that, “8. On September 1, 2004, in furtherance of the above-referenced investigation and in accordance with IRC § 7602, I issued an administrative summons to, IRS Form 2039, to RBC Centura Bank…” (Emphasis added)

The Petitioner refutes these presumptions based on the following:

A. The Declarant’s statement is flawed, in that, IRC § 7602 is the authority for the issuance of an administrative summons to a "taxpayer" not a "third –party financial record keeper". The correct authority for a third– party financial record keeper is

IRC § 7609.

B. Lack of foundation to support presumption that the declarant has the authority to use a "pseudonym" for making her Declaration per 28 U.S.C. § 1746 (2).

C. Lack of foundation to support presumption that declarant has the authority to use a "pseudonym" in her position as Internal Revenue Agent. If they qualify, Agents are allowed to use a registered pseudonym, in lieu, of their legal name to protect themselves from potential harassment by a taxpayer. Davis has never talked to or seen the Agent, so that reason has no bearing in this case.

The Agent has not submitted to the Court (in camera) a proper declaration explaining the correct reason(s) for using a false name or how Davis, a father of 2 small children, whom the IRS knows is a M.D, would endanger her. Davis hereby requests, that this Court order the IRS attorney to send him a copy (properly redacted) of her Pseudonym Registration Certificate and the official request to higher authority for permission to use it in making a false statement.

D. Lack of foundation to support the use of the Declarant’s "pseudonym" signature in making a “valid” Declaration that would meet the Federal Rules of evidence and be use in Court as "prima facie" evidence against the Petitioner.

5. Failure To Meet Rule 12(B) (3), FRCivP

The Respondent United States failed to respond to the Petitioner’s “Petition to Quash Summons”,within the 60 day time limit, in accordance with Rule12 (B) (3), FRCivP. The Summons and Petition to Quash was served by personal service on September 17, 2004 to the U.S Attorney for the District and the Internal Revenue Service; and on September 18, 2004 by Certified mail with Return Receipt to the U.S. Attorney General. Proof of Service was filed in a timely manner, on October 13, 2004, with the Court. The response from the United States was due 60 days from Service of Summons on November 17, 2004. The response was made 19 days after the time limit on December 6, 2004.

If the situation were reversed, with the Davis failing to meet a filing deadline, the United States would not hesitate to petition the Court, under Rule 12 (B) (3), FRCivP to find the Petitioner “in default, denies his Petition and seeks enforcement of the 7609 Summons.

Davis has met his obligation under Section 7609(b) (2)(A) by filing his Petition to Quash within 20 days of the date notice under Section 7609 (a) (2) was given. This filing provision is construed strictly, and the jurisdiction of the district court to entertain a petition to quash ends when the twenty-day period has run. Faber v. United States, 921 F.2d 1118, 1119 (10th Cir.1990). Davis has filed with the Court a pleading “Request for Default Judgment”, against the Respondent United States, on December 16, 2004.

Wherefore, Davis incorporates herein by reference his affidavit, memorandum of law and supplemental motions, and requests that the court quash the IRS summons directed to the third—party record keeper, and award Davis cost, and other just relief.

Davis has spent over 100 hundred hours of his time and $1,500.00 in counsel and typing fees, so far, in this case. Attorneys who practice this type of tax litigation charge $300-$500 per houK. Davis's time and money could have been better spent with his family.

Further, Davis requests that the any information derived from this summons be excluded from future use as evidence by the IRS/Respondent(s) in any future proceeding and that they be barred from issuing any future summons to Davis These requests being granted, under the order of this court, on the grounds that the summons was issued (1) without appropriate implementing regulations or legal authority, (2) invades the Fourth Amendment and Fifth Amendment rights of Davis and (3) does not satisfy all the Administrative steps required by law. It is, therefore, repugnant to and violates Davis’s constitutional right to due process under Article V of the Constitution.

Respectfully Submitted By,

Date______________

__________________________________
Jefferson K. Davis, Petitioner Pro Se

DECLARATION

I, Jefferson K. Davis, Petitioner Pro Se, hereby verify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the statement of facts and laws contained in this pleading are true and correct; according to the best of the my current information, knowledge, and belief, so help me God, pursuant to 28 U.S.C. 1746(1) supra. See Supremacy Clause.

Date:_______________

_______________________________
Jefferson K. Davis, Petitioner Pro Se

CERTIFICATE OF SERVICE

I, hereby certify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that I’m one of the People of the United States of America and that I personally mailed on or about this date, one true and correct copy of the document "Opposition to Respondents Response, etc.", by first class United States Mail, with postage prepaid and properly addressed to each of the following opposing counsel as shown on their response.

The United States Attorney ‘s Office

Debra W. Wang
United States Attorney

Sandra R. Brown
Assistant, United States Attorney
Chief, Tax Division

Donna Ford (California Bar No.1319241)
Assistant, United States Attorney
Room 7211, Federal Building
300 North Los Angeles Street
Los Angeles, CA 90012

Robert S. Watkins, Esquire
Chief, Civil Trial Division
Western Region
U.S. Department of Justice
Tax Division
P.O. Box 683, Ben Franklin Station
Washington, D.C. 20044-0683

Date:_______________

________________________________
Jefferson K. Davis, Petitioner Pro Se