UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
Randy Freeman { Case No. 08-cv-77-xxx
Petitoner, {
{
VS. { 7609 Opposition To Motion
{ To Dismiss
THE UNITED STATES, {
RESPONDENTS { (7609)
Plaintiff, hereby files this Amendment to his original Opposition to the U.S.
Governments Motion to Dismiss or for Summary Judgment.
A. Failure to Timely Effect Service of Process, and Lack of Jurisdiction over
Subject Matter.
The US Attorney claims that service of process was not perfected.
That statement is false. Plaintiff has indeed “instituted a proceeding
to quash” per 26 CFR section 301.7609-(b)
(2). The code section clearly states “Not withstanding any other
law or Rule of Law, any person shall have the right to begin a
proceeding to quash such summons not later than 20 days.
Such person shall mail by registered or certified mail a copy of the
petition to the person summoned and to
such office as the Secretary may direct in the notice referred to in
subsection (a)(1).
By mailing a copy of the original petition within 20 days to the summoned
parties and the Agent
who issued the summonses, Plaintiff has satisfied the requirements of code
section 7609.
FRCivP Rule (4)(m) is superceded by the 26 CFR section 7609(b)(2)(A),
(“Not withstanding any law or Rule of law”…) and 7609(B). None of the
cases cited by the U.S. Attorney on this issue are controlling in this
case. Section 7609 gives Plaintiff a “substantive right” to quash a summons
and that right cannot be deprived by Rule 4 of the FRCivP.
“Rule 4(j) may supersede the forthwith service requirement contained in
section 742 of the SAA only if that requirement does not involve substantive rights”.
“The forthwith service requirement is a term of the government's consent to be sued.
The requirement defines the scope of the government's liability to be sued
and defines a litigant's right to sue the government.
As such, the requirement cannot be brushed off or superseded as merely procedural”.
Libby v. United States, 840 F.2d 818
(11th Cir. 03/21/1988)
“An action in the district court may not proceed according to any set of
rules unless that court has first obtained jurisdiction over the action.
When the United States is the defendant, jurisdiction lies only
if the requirements of the applicable waiver of sovereign immunity provision
are met. In this case, the district court's jurisdiction over the suit
could be established only if the requirements of section 742 were met.
Thus we conclude that the forthwith service requirement of section 742 is
jurisdictional, that it involves the substantive rights of the parties, and
that it was not superceded by Rule 4(j). Sherwood v U.S., 312 U.S. at 589-90, 61 S. Ct. at 771
“In interpreting a statute, a court should always turn first to one cardinal
canon before all others. We have stated time and again that courts must
presume that a legislature says in a statute what it means and means
in a statute what it says there. When the words of a statute are unambiguous,
then this first canon is also the last:
judicial inquiry is complete.” Conn. National Bank v. Germain, 503 U.S. 249 (1992).
B. Lack of Jurisdiction over the person
As stated in Plaintiffs original Opposition to Dismiss, The IRS and The US
attorney have been properly served per 26 CFR section 7609. A certified
copy of the original petition was sent certified mail to the IRS agent
who issued the summonses. Code section 7609 does not require the revenue agent
who issued the summonses sign the certified receipt in order for
service to have been proper and in accordance with code section 7609. A
copy of that proof of service is already on file with the clerk of the court.
C. Failure to State a claim upon which Relief can be Granted
As stated in (A), above, Code section 7609 gives specific authority for any
person to bring a proceeding to quash any summonses as long as the requirements
of that code section have been met. IRS code section 7609(b)(2)(A) and (B) are
jurisdictional in nature.
Plaintiff’s compliance with these sections waives the government’s so-called
sovereign immunity. Under these sections a proceeding to quash is permitted.
D. Summary Judgment Standard
The US Attorney’s claim that Summary Judgment is warranted because there is no
genuine issue of material fact is also false. The only evidence in support of
that claim is the declaration of the agent who issued the summonses. There are a
number of disputed matters of fact with regards to the issuing of these summonses and the
agents declaration.
1. 26 CFR code section 7602(c), Notice of contact of third parties states the IRS may
not contact any person other than the taxpayer with respect to the determination
of collection of the 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. The IRS did not send out that statutory required
because the Plaintiff never received such a notice. This notice applies to any third-party contact
and is not limited to just those being contacted through the issuance of third-party
summonses.
2. Revenue Agent Lopez claims that she is seeking information to aid in the determination
of a “Federal Tax Liability”. That classification is vague and miss-leading at
best. Revenue agent Lopez, may be discussing import taxes, custom taxes or
taxes under any other USC Title. Revenue agent Lopez fails to offer any evidence as to the
lawful purpose of examining Plaintiffs personal banking records. Plaintiff
as well as this court have no idea what “Federal tax liability” Revenue agent Lopez is referring to.
This is a fishing expedition at best and with no clarity whatsoever. These records sought by
the IRS are personal and confidential and an express purpose for the
issuance of these summonses is warranted.
3. As noted in (1) above these summonses are an abuse of power since Plaintiff never received
a notice by IRS notifying him of their intent to contact any 3rd party.
In contradiction to Agent Lopez declaration, all requirements of the Internal Revenue Code,
with respect to the issuance of summonses have not been met.
4. As stated in Plaintiff’s original Opposition on the Motion to Dismiss, the information
that the IRS may need to determine an “income” tax liability is already in their possession.
But the issuance of these summonses to determine a “Federal tax liability”
is once again confusing and vague. If “income” taxes is the “tax liability” issue that Mrs.
Lopez is referring too, the Plaintiff and this court could not possibly make that
determination based on the evidence presented by the US Attorney. This is a disputed matter of fact.
5. The determination of an “income” due by the IRS could easily be proposed to the Plaintiff
based on the information already in the possession of the government. If the IRS
is attempting to make an “income” tax liability determination, then this is clearly an
abuse of power. The IRS has not shown that the investigation is being conducted in good
faith and for a legitimate purpose since they have not clearly identified what that purpose
is. U.S. v. Powell, 379 U.S. 78,85 S. Ct. 248 (1964)
“The Service must show that the investigation will be conducted pursuant to a legitimate
purpose, that the inquiry may be relevant to the purpose, that the information sought is
not already within the Commissioner’s possession, and that the
administrative steps required by the Code have been followed. [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”. U.S. v LaSalle, 437 U.S.298, 98 S. Ct. at 42 (1978) Opposition to Summonses
E. The government alleges that one opposing the summonses bears the burden of disproving
the actual existence of a valid civil tax determination or
collection purpose. To meet said burden, Petitioner needs adequate pre-hearing discovery.
Petitioner, given sufficient discovery, 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.
In his additional affidavits and Summary of Authorities, to be filed henceforth, Petitioner
will enumerate the government’s actions,
which speak louder than words and show that the true nature of this investigation and the
purpose of the government is to circumvent
the traditional role of the grand jury and the other Constitutional protections of the Petitioner
as guaranteed in the Bill of Rights. IRC §7609 provided
Petitioner, as “a person who is entitled to notice of a summons”, the right to petition to
quash a summons. Obviously, the Congress meant for the suit to be
meaningful, with adequate pre-hearing discovery, plus a real evidentiary hearing with
government witnesses testifying under oath.
The Plaintiff prays that this court will dismiss the Governments Motion to Dismiss on
all grounds and permit evidentiary proceedings as was intended by code 26 CFR code section 7609.
CERTIFICATE OF SERVICE: I do hereby certify that on this date, I sent properly to
opposing council this
pleading.
Date:__________
_______________________________
Signature
Address:________________________
_______________________________