1099-OID Scammer Convicted.

[The Observer]

The Bellingham Herald is reporting on one Ronald Brekke convicted for his scheme in getting 1,000 people involved in filing the 1099-OIDs to claim nearly $763 million, with $14 million actually paid out.

Brekke's name does not show up here on Quatloos in the search box. Was he on our radar before today? Can't imagine he wasn't.

And this sounds like the biggest 1099-OID scam on the books. Or was there one bigger?

[Demosthenes]

A quick look into the hard drive o' Demo reveals the following:

1) The sov types didn't really talk about him until he was indicted in 2011. At that point, he became a cautionary tale about the dangers of OIDs.
2) He had a known association with a Canadian sovereign named Gaetano Fiore who was arrested in Chicago and with scammer Brandon Adams of So Cal.
3) He was a "creditor" in the huge Giordano's Pizza bankruptcy scam run by Marshall Home and his "wife" the "Lien Queen" Elizabeth Broderick.

[Torp]

What are the odds two Ronald Brakke's, around the same age, are sovrun citzuns. I've had dealings with some of the cohorts of Ronald Brakke of the Little Shell Pembina fame.

It does appear these two are different. I have it on pretty good authority that the North Dakotan Ronald Brakke lives at home in his mom's basement.

I just noticed one has an "a" and the other an "e" in their last names. Still close enough to be weird.

[The Observer]

Apparently, according to this newspaper article, Brekke is now resorting to filing bogus liens against the court officials involved in his prosection:

Brekke, a 57-year-old Southern California man, has spent the months since he was convicted filing nonessential legal paperwork with the U.S. District Court in Seattle. He has attacked the court and investigators by issuing bogus liens against them.

For the trouble he caused and the remorse he’s failed to show, Assistant U.S. Attorney Thomas Woods suggested Brekke deserves 17 ½ years in federal prison.

“He believes that he is immune from the law,” the prosecutor told the court. “He does not believe that this court has the authority to hear this case. Even though he helped individuals steal millions of dollars from the United States Treasury, he maintains that he cannot be held accountable for his actions.”

Undeterred even by his arrest, Brekke filed a series of bogus legal actions against the court, prosecutors and IRS investigators. Those efforts – including the sending of hundreds of legalistically styled letters from Brekke and his supporters – continued even after a Seattle jury convicted him.

Brekke and his supporters badgered the court before and after he was convicted. Like Brekke, several of his supporters disputed the legitimacy of the federal court system.

“Woe be unto you, I pray the Lord opens your hearts so it won’t be so easy for you to turn a blind eye to the harm you are causing your fellow man, and so you will be moved to act in accordance with God’s laws and provide the equitable remedy and unconditionally discharge this matter ASAP,” four of Brekke’s supporters wrote in what was meant to be a legal pleading filed with the court. They went on to quote from Psalms and Proverbs.

[Cathulhu]

Whyizzit that the Sovs wanna quote psalms and proverbs--but not the parable about "Render unto Caesar those things that are Caesar's, and render unto God those things that are God's."? Is that the part of their oft-quoted religious views that they choose to ignore?

[notorial dissent]

Maybe because it disagrees so completely with what they so badly want to believe.

[The Observer]

And now it appears that Fiore is now causing his elderly father problems and potential loss of his home:

That prompted Gowdey to ask Pro to allow him to return the money to its "rightful owner," Fiore's 87-year-old father, who had mortgaged his longtime Montreal home to come up with the cash.

Gowdey argued that the elder Fiore had agreed to lend the money only if his son got credit for time served and paid it back within 60 days.

The father now is unable to make the $800 monthly mortgage on his modest government pension, Gowdey wrote.

[jcolvin2]

An injunction action was filed in the Western District of Washington on July 22, 2012. WD Wash. No 2:12-cv-01246.

From the complaint:

BREKKE’S ABUSIVE TAX FRAUD SCHEME

7. Brekke, individually and doing business as Ron Brekke E-Filing Services, has promoted an abusive tax fraud scheme to individuals in the United States and Canada.
8. Brekke’s scheme is often called “redemption” or “commercial redemption.”
9. Brekke prepared or assisted his customers in preparing fabricated Forms 1099-OID and 1099-A to falsely state that the customer’s creditors withheld, on behalf of the customer,
federal tax in the amount of debt owed by the customer to his/her creditors.
10. Brekke then transmitted these frivolous Forms 1099 on behalf of his customers to the IRS through the IRS’s Filing Information Returns Electronically (FIRE) System using a unique FIRE Transmitter Control Code (TCC) issued to him or using TCCs issued to others.
11. Brekke instructed his customers to file a federal income tax return falsely claiming that the amount of the customers’ debts and credit card limits had been withheld as tax, and to claim this amount as a tax refund on their return. The refund amount sought by the customers on their income tax returns matched the tax withholdings reported on the fabricated Forms 1099 OID and 1099-A prepared by Brekke.
12. Brekke earned a fee from his customers for each fraudulent tax form he completed
and transmitted to the IRS.
13. Brekke promoted his scheme at seminars in the United States and Canada, and even
encouraged Canadian citizens who are not residents of the United States and never earned
income in the United States to request refunds from the IRS in accordance with the scheme.

SPECIFIC EXAMPLES OF BREKKE’S ABUSIVE CONDUCT

14. On July 12, 2009, in Seattle, Brekke met with Wonita Chung, an individual who assisted Brekke in the promotion of his tax fraud scheme. Two days later, Brekke and Chung drove to Vancouver, Canada, where they presented a seminar about Brekke’s scheme to Canadian individuals.
15. Brekke electronically filed with the IRS 1099-OID and 1099-A forms on behalf of John Chung, a Canadian citizen who is Wonita Chung’s brother and who attended this seminar. Brekke knew these documents falsely stated that $369,534.60 in federal income tax had been
withheld on Chung’s behalf, even though no federal income tax had been withheld from John Chung by any entity.
16. John Chung paid Brekke $607.50 for helping him prepare and file the tax forms.
17. In September 2009, John Chung filed with the IRS a Form 1040NR, claiming he was entitled to a refund of $369,534.60. The IRS mailed Chung a check for the full refund amount he claimed on his fraudulent federal tax return, and Chung cashed the check.
18. Brekke also prepared tax forms for another Canadian citizen, Donald Mason. In July 2009, Brekke electronically filed with the IRS 1099-OID and 1099-A forms on behalf of Mason. Brekke knew these documents falsely stated that $359,926.80 in federal income tax had been withheld on Mason’s behalf, even though no federal income tax had been withheld by any entity.
19. Brekke charged Mason $5,985 for having helped prepare and submit the tax forms to
the IRS.
20. In August 2009, Mason mailed a federal tax return to the IRS in which he claimed he was entitled to a refund of $359,926.80. The IRS mailed Mason a check for the full refund amount he claimed on his fraudulent federal tax return and Mason deposited the check.
21. Based on her participation in this tax-fraud scheme with Brekke, Wonita Chung has plead guilty to one count of conspiracy and was sentenced to 18 months in prison. United States v. Chung, et al, Case No. CR10-328JCC (W.D. Wash.). Mason was convicted of one count of theft of public money and sentenced to 33 months in prison. United States v. Mason, Case No. CR09-0407-JCC (W.D. Wash.). John Chung plead guilty to one count of theft of public money and was sentenced to 12 months and a day in prison. United States v. Chung, Case No. CR09- 0405RSL (W.D. Wash.).

HARM CAUSED BY DEFENDANT’S ABUSIVE TAX FRAUD SCHEME

22. Brekke personally has filed thousands of false Forms 1099 in 2009 and 2010, and his customers in Canada and the United States have sought refunds in excess of $763 million.
23. The United States Treasury has been defrauded through Brekke’s scheme by issuing refunds in excess of $14 million to his customers based on their false tax returns.
24. The administrative costs expended in investigating Brekke’s activity so far are at least $72,000, exclusive of any costs associated with the collection of tax assessments and responses to any future correspondence and filings.
25. In reliance on Brekke’s promotion, his customers who should have filed federal income tax returns have failed to file proper tax returns. This scheme is harmful to Brekke’s customers because they remain liable for any unpaid income tax liability, may be liable for interest and substantial penalties based on refunds erroneously issued to them, and could be subject to criminal prosecution.

[LPC]

The court wonders why it should enjoin Brekke while he is in prison, and sees some irony in the government's motion for summary judgment (which Brekke "refused for cause").

United States v. Ronald L. Brekke, No.2:12-cv-01246 (U.S.D.C. W.D. Wash. 10/31/2013).

UNITED STATES OF AMERICA,
Plaintiff,
v.
RONALD L. BREKKE,
Defendant.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT AND
ORDER TO SHOW CAUSE

I. INTRODUCTION

This matter comes before the Court on the Government's Motion for Summary Judgment (Dkt. # 27) and Defendant Ronald Brekke's "Judicial Notice Summary Judgment" (Dkt. # 29). For the reasons that follow, both motions shall be denied and the Government is ORDERED TO SHOW CAUSE why the action should not be dismissed without prejudice.

II. BACKGROUND

In 2012, Mr. Brekke was convicted on a four count indictment. United States v. Brekke, et al, Case No. 10-cr-00328JCC (W.D. Wash.); see also Dkt. # 27, p. 2. Pursuant to Count One, Brekke was found guilty of conspiring to steal government money, present false or fraudulent claims to the Government, and submit false or fraudulent tax returns to the IRS in violation of 18 U.S.C. § 371. Brekke, No. 10-cr-00328JCC. Pursuant to Counts Two, Three and Four, he was found guilty of committing wire fraud on three separate occasions, including one e-mail communication with a co-conspirator, one fax with a co-conspirator, and at least one PayPal payment received by Brekke, in order to carry out a 1099-OID tax scheme. Id.; 18 U.S.C. §§ 1342, 1343. He is currently serving a 144 month sentence at the Federal Correctional Institution in Bastrop, Texas ("FCI Bastrop") for all four crimes. Dkt. # 27, p. 2.

The Government filed a complaint for permanent injunction and other equitable relief against Mr. Brekke on July 20, 2012, following his criminal conviction. Dkt. # 1. In response, Mr. Brekke filed a "Non-Negotiable Notice of Acceptance" indicating that he would "accept for value and consideration all offers/summons/claims/charges/orders/motions/trials and the like in the matter of 'United States of America v. Ronald Brekke . . .'" and "not argue the facts" in exchange for the Government's agreement to (1) "recall all securities, bonds, debts, pledges, insurance, and any other debt obligations related to this/these account(s) and . . . not issue any others"; (2) "adjust and set-off all public charges, debts, taxes, and dues"; (3) "post full settlement and closure of the account(s)"; and, (4) dismiss the case. Dkt. # 3, p. 1-2.

In September 2012, the Government responded to Mr. Brekke's "Notice," treating it as a motion to dismiss and refuting it for lack of legal basis. Dkt. # 5. Later that month, Mr. Brekke filed a "Notice of Dishonor" indicating that he had not been "paid" and his "notice of acceptance" had not been "accepted"; therefore, he intended to "look to [the Government] for payment or performance." Dkt. # 6, p. 1-2. Soon thereafter, Mr. Brekke filed a "Judicial Notice" requesting "this court take Judicial Notice that unless the Prosecution can produce an actual injured party, i.e. natural person -- flesh and blood man or woman who can make an appearance on the record and who can submit, into the record, a signed and sworn Affidavit as to the nature and extent of his/her alleged injuries, then this court lacks subject matter jurisdiction and the named Plaintiff and Defendant are not natural persons, i.e. flesh and blood men or women, but are fictions of law." Dkt. # 7, p. 1-2.

The Government moved the Court to enter default pursuant to Rule 55(a) for Mr. Brekke's failure to answer the complaint. Dkt. # 8. The following month, Mr. Brekke again filed a "Notice of Dishonor" indicating his "non-negotiable notice of acceptance" had "been dishonored or [had] not been paid or accepted." Dkt. # 9, p. 1.

The Court issued an Order to Show Cause and directed Mr. Brekke to file a pleading in accordance with Fed. R. Civ. P. 8. Dkt. # 10, p. 1. Mr. Brekke filed a response to the Order on November 19, 2012, stating that he "'accepted for value' (AFV)" the Court's "offer 'order to show cause'" pursuant to the

AFV remedy [which] is based on the premise of (1) the corporate United States . . . ongoing bankruptcy/reorganizations . . ., (2) the replacement of lawful money with the 'private debt-based currency or the 'private' non-government International Banking Center called the Federal Reserve, (3) the pledge by the bankrupt U.S. corporation of actual title to all real property of the American people, their wealthy assets and labor productivity -- collectible as tax revenues, as collateral for corporate United States public debt, and (4) the provisions made by the bankrupt U.S. Corp. to provide the American people (as Creditors, Principals and Beneficiaries) consideration/exchange for this 'full faith and credit' pledge by set-off or discharge of all debts held in the name of the . . . legal fiction/US person, which in this instance is RONALD BREKKE. Therefore, I stipulate this matter be discharged/vacated.

Dkt. # 12, p. 1-2.

In light of Mr. Brekke's filings, the Court declined to enter default judgment against him as default judgments are disfavored and because Mr. Brekke had appeared on the record on his own behalf. Dkt. # 13. Mr. Brekke then proceeded to file a series of "Notices" re-asserting his claims as quoted above. See generally Dkt. ## 16, 18, 22, 26. On July 2, 2013, the Government filed a motion for summary judgment "because there are no disputed material facts and the United States is entitled to judgment as a matter of law." Dkt. # 27. Defendant replied with a "Notice" in which he "refused for cause conditional acceptance order" as "purely commercial matters. . . ." Dkt. # 28, p. 1.

III. DISCUSSION

The Government urges this Court to grant summary judgment on its request for an injunction against the Defendant. Dkt. # 27. However, the Government's argument is based entirely on tax violations that occurred prior to October 31, 2012. For these crimes, Mr. Brekke was tried, convicted, and sentenced to 144 months in prison plus three years of supervised release, during which time he will be prohibited from acting as a tax preparer. Dkt. # 27, p. 2. The Government does not suggest that Mr. Brekke has engaged in criminal behavior since his incarceration last year. Rather, the Government contends it is "not uncommon" for persons who violate the tax laws to continue to engage in unlawful activities even after spending time in prison for such offenses. Dkt. # 27, p. 18.

District courts have original jurisdiction over actions arising under Acts of Congress providing for internal revenue as well as all civil actions, suits, or proceedings commenced by the United States except as otherwise indicated by Congress. 28 U.S.C. §§ 1340, 1345. Moreover, courts have jurisdiction to issue injunctions "as may be necessary or appropriate for the enforcement of the internal revenue laws." 26 U.S.C. § 7402(a). This action has been requested by the Chief Counsel of the Internal Revenue Service, a delegate of the Secretary of the Treasury, and is brought at the direction of the Attorney General of the United States under the authority of 26 U.S.C. §§ 7402 and 7408. Dkt. # 1, p. 3. Defendant Ronald Brekke's fraudulent activities took place in this District and therefore venue is proper. Dkt. # 1, p. 3.

A. Summary Judgment Standard

Summary judgment is proper if the moving party establishes that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248. The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets that burden, the burden shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues of material fact. Id. at 324. In determining this, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255.

B. Analysis

1. The Government's Section 7408(b) claims

Section 7408 of the IRC authorizes district courts to enjoin any person from engaging in conduct subject to penalty under either IRC § 6700 or § 6701 if injunctive relief is appropriate to prevent recurrence of such conduct. 26 U.S.C. § 7408; see also U.S. v. Estate Preservation Serv., 202 F.3d 1093, 1098 (9th Cir. 2000) (citing I.R.C. §§ 6700(a), 7408(b)). "The government bears the burden of proving each element by a preponderance of the evidence." Estate Preservation Serv., 202 F.3d at 1098 (internal citations omitted). IRA § 6700 penalizes any person (1) who organizes or sells an interest, plan, or arrangement, (2) who causes another person to make a statement with respect to the securing of any tax benefit by reason of participating in the plan or arrangement, and (3) where the person knows or has reason to believe that such statement is false or fraudulent as to any material matter. 26 U.S.C. § 6700. IRA § 6701 makes it a punishable offense to (1) aid or assist in, procure, or advise with respect to the preparation or presentment of a federal tax return, refund, claim or other document, (2) knowing, or having reason to believe, that the document will be used in connection with a material matter arising under internal revenue laws, and (3) knowing that, if it is so used, it will result in an understatement of another person's tax liability." 26 U.S.C. § 6701.

Here, there is no factual dispute that Defendant violated §§ 6700 and 6701. Mr. Brekke was convicted last year of three counts of wire fraud as well as conspiring to commit theft of public money, false or fraudulent claims, and false statements. Specifically, the Government first correctly asserts that Defendant's prior conviction establishes that he violated § 6700 when he (1) organized the 1099-OID scheme; (2) caused others to be told they could receive a refund in an amount equal to the customer's personal debt or credit card limits and that the customer should file returns claiming those debts had been withheld as a tax;1 and, (3) that he knew or had reason to believe these statements were false. Dkt. # 27, p. 15. Furthermore, Defendant's preparation of the false Forms 1099 and his actions to submit the false forms to the IRS knowing or having reason to believe that they would be used in connection with the scheme to fraudulently receive tax refunds was a violation of § 6701. Dkt. # 27, p. 16.

As to the "likelihood of future violations" prong of this analysis, however, the Government has not met its burden. To determine the likelihood of future violations of IRC §§ 6700 or 6701, courts consider the following factors: "(1) the gravity of the harm caused by the offense; (2) the extent of the defendant's participation; (3) the defendant's degree of scienter; (4) the isolated or recurrent nature of the infraction; (5) the defendant's recognition (or non-recognition) of his own culpability; and (6) the likelihood that defendant's occupation would place him in a position where future violations could be anticipated." Estate Preservation Serv., 202 F.3d at 1105.

This Court considered the issue in U.S. v. Kirk., Case No. C11-1075-MJP, 2012 WL 1099772, at *1 (W.D. Wash.). There, it was clear the defendant had violated §§ 6700 and 6701; however, "[t]he closer call [was] whether the second prong [was] met -- i.e. whether an injunction [was] necessary and appropriate to prevent the specified conduct." Id. at * 2. Taking note of the fact that the defendant was seventy-one years old at the time and "possibly, based on his improperly filed surreply, in prison on unrelated charges," the Court granted the Government's motion for summary judgment finding an injunction appropriate. Id. As the Court explained,

[defendant] caused at least 31 customers to submit $8 million worth of fraudulent claims and knew the 1099-OID scheme may lead to penalties. It also appears based on [defendant's] response that [defendant] does not seem to recognize his own culpability; instead, arguing it is the IRS's fault for creating confusion over the 1099-OID process. Since the Court is not convinced [defendant] will not continue to promote his tax scheme, the Court finds a permanent injunction appropriate.

Id.

The Government contends that the gravity of the harm Mr. Brekke caused is severe, amounting to a minimum of $14 million in erroneously issued refunds. Dkt. # 27, p. 17. The Defendant also appears to have occupied a leadership role in the scheme to defraud the Government, rather than playing merely an instrumental or supportive role. Dkt. # 27, p. 15. Moreover, the Defendant lacks any sense of remorse for his crimes as he consistently contends that his actions are not, in fact, illegal. See generally Dkt. ## 3, 6, 7, 9, 11, 12, 16, 18, 20-25, 28-30. Rather, Defendant believes that the "corporate United States" has committed crimes against the American people by using citizen funds to support the "bankrupt" corporate nation without citizen consent.

However, unlike in Kirk, Mr. Brekke is currently in prison for the very violations that the Government contends provide grounds for an injunction. The Government's documents fail to even suggest that Mr. Brekke has engaged in unlawful activities since October 31, 2012. Dkt. # 27-1, p. 1. Moreover, the Government concedes that Defendant will be in prison for approximately eleven more years for his role in these crimes. Dkt. # 27, p. 17. Thereafter, he will be placed on supervised release and restricted from employment as a tax preparer and prohibited from employment that has "anything to do with the preparation or filing of income taxes." Dkt. # 27, p. 17. It is speculative at best to assume that the Defendant, who will be incarcerated for eleven years with an additional period of supervised release subject to conditions that prohibit him from engaging in any financial occupation, might commit future violations. Nevertheless, the Government urges this Court to issue an injunction because "t is not uncommon for tax defiers like Brekke to prepare bogus tax documents and to promote fraudulent tax schemes even after spending time in prison for tax-related offenses." Dkt. # 27, p. 18. However, the fact that tax defiers have found ways to engage in unlawful behavior from prison in the past does not show why this Defendant must be enjoined from engaging in behavior that has not yet occurred and when the Court has been given no reason to anticipate that it will occur in the future. Thus, the Government has not met its burden to show that an injunction is necessary to prevent Mr. Brekke from engaging in additional tax fraud. Therefore, it is not entitled to judgment as a matter of law.

2. The Government's Section 7402 claims.

Section 7402 of the IRC authorizes the court to issue orders of injunction as may be necessary or appropriate for the enforcement of the internal revenue laws. 26 U.S.C. § 7402. "A party seeking a permanent injunction must show (1) that it has suffered an irreparable injury; (2) that remedies available at law . . . are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." U.S. v. Tanner, No. C06-1139, 2007 WL 1287898, at *2 (W.D. Wash.) (citing Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1137 n. 11 (9th Cir. 2006)) (internal citations omitted).

According to the Government, Mr. Brekke's scheme caused the United States irreparable injury in the form of lost tax revenue, erroneous refunds, and administrative costs necessary to detect and prosecute the fraud. Dkt. # 27, p. 20. Further, it contends that Mr. Brekke is inclined to continue promoting his scheme or engaging in fraudulent behavior as is evidenced by his failure to cease the illegal activities after learning of the arrest of several of his customers or after receiving the Government's notification that it considered his scheme frivolous. Id. Lastly, the Government contends that "injunctive relief is the only way to protect the United States and the public from Brekke's future, fraudulent behavior." Id.

Again, there is no dispute as to the harm suffered by the United States. However, even assuming the Government has been able to show the absence of a material fact as to the hardship and public interest elements, it has failed to show that remedies available at law are inadequate to compensate for the injury. Namely, the injury suffered here is no less than $14 million in erroneously issued tax refunds, for which Mr. Brekke was prosecuted, found guilty, and sentenced to more than eleven years in prison plus three years supervised release. Because the Government has not suggested that Mr. Brekke continues to engage in unlawful tax practices from prison, it is premature to presume that the legal remedies already successfully pursued against Mr. Brekke will be insufficient to deter him. Thus, the Government has failed to meet its burden on these claims as well.

3. Brekke's Request for Summary Judgment

Mr. Brekke also filed a "Notice" seeking summary judgment in his favor. He contends, among other things, that "[f]lesh and blood me provided the value by way of personal exemption under the bankruptcy . . . which should have resulted in dismissal of this matter as well as the criminal matter, and my discharge from commercial captivity and involuntary debt servitude." Dkt. # 29, p. 5. After reviewing the "Notice" and the entirety of the record, the Court is unable to identify a legal basis upon which the Court could grant the motion. The Government acknowledges that Mr. Brekke "continues to file frivolous tax-defier propaganda with this Court in conjunction with this civil case." Dkt. # 27, p. 10. It is not without irony that the Government quotes the Court from the criminal case; "Brekke did the same thing by 'inundat[ing] . . . [the] Court with letters and notices' in which 'even the most discerning reader . . . would struggle to identify any arguments or requests that [we]re intelligible in the legal system that actually exists in this country.'" Id. (quoting Brekke, June 25, 2012 Order at 1-2). In filing this premature action, the Government has succeeded in inundating the Court with no less than twenty-one legally unintelligible documents from Mr. Brekke.

Rule 56(f) provides in relevant part that after giving notice and a reasonable time to respond, "the court may: [ ] grant the motion on grounds not raised by a party. . . ." Fed. R. Civ. P. 56(f)(2). Having found the Government's motion premature and Mr. Brekke's "Notice" lacking a cognizable legal basis, the Government is ORDERED TO SHOW CAUSE by November 15, 2013, why the case should not be dismissed without prejudice. Mr. Brekke may respond no later than November 29, 2013. No memorandum shall exceed seven (7) pages.

IV. CONCLUSION

Having reviewed the motions, the responses and replies thereto, the attached declarations and exhibits, and the remainder of the record, the Court hereby finds and ORDERS:

(1) The Government is ORDERED TO SHOW CAUSE why the Court should not dismiss the action without prejudice as discussed above;

(2) The Clerk is directed to term the noting date for Dkt. # 27;

(3) Mr. Brekke's "Judicial Notice Summary Judgment" (Dkt. # 29) shall be DENIED;

(4) The Clerk is directed to send a copy of this Order to Mr. Brekke and all counsel of record.

Dated this 30th day of October 2013.

Ricardo S. Martinez
United States District Judge

FOOTNOTE

1 According to the Government, these statements were material as they "would have a substantial impact on the decision making process of a reasonably prudent . . ." taxpayer. Dkt # 27, p. 15-16 (quoting United States v. Stover, 650 F.3d 1099, 1111 (8th Cir. 2011)).

END OF FOOTNOTE

[LaVidaRoja]

So he just may be getting another bite at the apple. Should be interesting to see how many fraudulent returns get filed from where ever he is incarcerated. I can't imagine him seeing this an anything other than a "victory" and an authorization to engage in preparation of returns claiming excessive refunds.