Barringer Sued for Taxes

[LPC]

The US has filed an action against Jerold Barringer to reduce his tax liabilities to a judgment against him (and his wife) and to enforce the federal tax lien against some real property, to which Barringer has objected on various grounds, all of which have been denied, and some of which are the same frivolous arguments that have gotten him suspended by some courts.

United States v. Jerold W. Barringer et al.; No. 3:14-cv-03132 (8/27/2014)

UNITED STATES OF AMERICA,
Plaintiff,
v.
JEROLD W. BARRINGER, INDIVIDUALLY AND
AS TRUSTEE OF THE KELBAR ASSOCIATES TRUST,
LINDA M. BARRINGER, JANET E. CHOTT-BEASLEY, MERLE WERNLE,
STATE OF ILLINOIS (DEPARTMENT OF REVENUE), AND
RON JENKINS, MONTGOMERY COUNTY TREASURER,
Defendants.

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on the Motion to Dismiss (d/e 10) filed by Defendants Jerold W. Barringer and Linda M. Barringer. The Motion is DENIED. The Complaint states a cause of action, and the Barringers' other arguments do not warrant dismissal of the Complaint.

I. BACKGROUND

The Internal Revenue Service has the authority to make assessments of all unpaid taxes. See 26 U.S.C. § 6201 ("The Secretary is authorized and required to make the inquiries, determinations, and assessments of all taxes"); 26 C.F.R. § 301.6201-1 (delegating assessment authority to the district director of the Internal Revenue Service). After the Internal Revenue Service makes an assessment of tax liability, it must "give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof" within 60 days of the assessment. 26 U.S.C. § 6303. If, after receiving notice and a demand to pay, the taxpayer does not pay the assessment, a lien attaches to all property belonging to the taxpayer. 26 U.S.C. § 6321; see also 26 U.S.C. § 6320 (setting forth the notice-of-lien requirements). The lien also attaches to all property "held by the taxpayer's nominees -- someone who has legal title when, in substance, the taxpayer enjoys the benefits of ownership." United States v. Wesselman, 406 F. App'x 64, 65 (7th Cir. 2010) (unpublished).

On May 2, 2014, the United States of America filed a Complaint seeking to reduce to judgment the outstanding liability for internal revenue taxes of Jerold W. Barringer and Linda M. Barringer and to enforce the associated tax liens against real estate known as 200 West Front Street, Nokomis, Illinois (the Nokomis Property). Compl. (d/e 1). The Complaint also names as interested parties the following persons having liens or claiming any interest in the Nokomis Property: Kelbar Associates Trust; Janet E. Chott-Beasley; Merle Wernle; State of Illinois (Department of Revenue); and Ron Jenkins, Montgomery County Treasurer, in his official capacity. Compl. ¶¶ 3-7.

Count 1 alleges that a delegate of the Secretary of Treasury made assessments against Jerold W. Barringer for income taxes, penalties, and interest for tax year 2000. Compl. ¶ 11. Notice of each tax assessment and a demand for payment was sent to Jerold W. Barringer on the date of each of the tax or penalty assessments. Id. ¶ 12. Despite demand and notice, Jerold W. Barringer failed to pay the assessed liabilities. Id. ¶ 13. The United States seeks judgment in the amount of $68,194.27, plus such additional amounts as may continue to accrue from and after May 1, 2014.

Count 2 alleges that a delegate of the Secretary of Treasury made assessments against Jerold W. Barringer and Linda M. Barringer jointly for income taxes, penalties, and interest for tax years 1999, 2008, 2009, and 2010. Compl. ¶ 15. Notice of each tax assessment and a demand for payment was sent to Jerold W. Barringer and Linda M. Barringer on the date of each of the tax or penalty assessments. Id. ¶ 16. Despite demand and notice, Jerold W. Barringer and Linda M. Barringer failed to pay the assessed liabilities. Compl. ¶ 17. The United States seeks judgment in the amount of $63,828.63, plus such additional amounts as may continue to accrue from and after May 1, 2014.

Count 3 alleges that, pursuant to 26 U.S.C. § 6321 and § 6322 and as a result of the Barringers' failure to pay the assessments, a federal tax lien arose and attached to all property and rights to property of the Barringers, including the Nokomis Property. Compl. ¶ 19. The Nokomis Property is titled in the name of Kelbar Associates Trust. Id. ¶ 9.

Specifically, the Complaint alleges that on June 9, 2011, Horseplayers Edge, LLC conveyed the Nokomis Property to Kelbar Associates Trust. Compl. ¶ 9. The Deed was signed by Jerold W. Barringer, Managing Director, Horseplayers Edge, LLC. Id. According to the allegations in Count 3, Jerold W. Barringer has used Kelbar Associates Trust to keep his property out of reach of creditors by funneling his money through a bank account in the name of Kelbar Associates Trust and titling real property in the name of that trust. Id. ¶ 20. The Complaint alleges that Kelbar Associates is not a valid trust and holds title to the Nokomis Property as the nominee or alter ego of Jerold W. Barringer, who is the true, equitable owner of the Nokomis property. Id. ¶ 22. Notices of Federal Tax Liens were filed in the Montgomery County Clerk and Recorder's office. Id. ¶ 23.

The United States seeks a judgment that all property and property rights belonging to the Barringers are subject to the federal tax liens. The United States also asks the Court to enforce the federal tax liens upon the Nokomis Property.

The United States served Jerold W. Barringer, individually and as Trustee of the Kelbar Associates Trust, and Linda M. Barringer. See Summons (d/e 2, 6); Return of Service (d/e 13, 14). On July 9, 2014, the Barringers, appearing pro se, filed a Motion to Dismiss (d/e 9). The Court notes that the Barringers' Motion does not comply with this Court's Local Rules. See CDIL-LR 7.1(B)(1) ("Every motion raising a question of law . . . must include a memorandum of law"). Nonetheless, the United States addresses the Motion on the merits, and this Court will do the same.

II. JURISDICTION

This is an action filed by the United States to reduce the taxpayer defendants' tax liabilities to judgment and to enforce the federal tax liens against real property. The Court has jurisdiction pursuant to 26 U.S.C. § 7402 (providing that the district courts have jurisdiction to render judgments necessary or appropriate for the enforcement of internal revenue laws); § 7403 (providing that a civil action may be filed in the district court to enforce a lien where there has been a refusal or neglect to pay any tax); 28 U.S.C. § 1340 (providing that the district courts have original jurisdiction of civil actions arising under internal revenue laws); and 28 U.S.C. § 1345 (providing that the district courts have original jurisdiction of all civil actions commenced by the United States).

Venue is proper in this Court because the Nokomis Property is located in Montgomery County. See 28 U.S.C. § 1391 (providing that a civil action may be brought in the judicial district in which "a substantial part of the property that is the subject of the suit is situated"); CDIL-LR 40.1(B) (cases arising out of Montgomery County are filed in the Springfield Division).

III. ANALYSIS

In their Motion to Dismiss, the Barringers raise numerous arguments, which the United States has helpfully divided into three categories: (1) an argument under Rule 12(b)(2) and (7) that the United States did not properly serve one of the parties; (2) numerous arguments asserting that the United States failed to state a claim upon which relief can be granted; and (3) arguments on behalf of Defendant Wernle.

A. The United States Properly Served the Kelbar Associates Trust

The Barringers first argue that the United States failed to serve Kelbar Associates Trust at the Trust's headquarters. See Mot. to Dismiss ¶ 2.

The capacity of the Kelbar Associates Trust to be sued is determined by state law. See Fed.R.Civ.P. 17(b)(3)(A) (the capacity of parties other than an individual not acting in a representative capacity or a corporation is generally determined by the law of the state in which the court is located except that an unincorporated association without capacity to be sued under state law may be sued in its common name to enforce a substantive right existing under the United States Constitution or laws). In Illinois, a written trust can be sued through its trustee in a representative capacity on behalf of the trust. See Sullivan v. Kodsi, 359 Ill. App. 3d 1005, 1010 (2005); Trustees of Carpenters' Health & Welfare Trust Fund of St. Louis v. Darr, 694 F.3d 803, 811 (7th Cir. 2012) (noting that "in Illinois, trustees in their representative capacity are the same entity as the trust"); 760 ILCS 5/4.11 (trustees have the power to "compromise, contest, prosecute or abandon claims or other charges in favor of or against the trust estate"). Therefore, the United States properly sued Kelbar Associates Trust through its trustee, Jerold W. Barringer, in his representative capacity.

Moreover, a trust is an unincorporated association. See Soveral v. Franklin Trust, No. 90-2052, 1991 WL 160339 at *2 (D.N.J. 1991). Federal Rule of Civil Procedure 4(h) provides that an unincorporated association may be served "by delivering a copy of the summons and of the complaint on to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process." Fed.R.Civ.P. 4(h)(1)(B). The United States properly served Kelbar Associates Trust by serving Jerold W. Barringer as trustee of the Kelbar Associates Trust. See Summons (d/e 2); Return of Service (d/e 14).

B. The Complaint States a Claim Upon Which Relief Can Be Granted

The Barringers next make a number of arguments, pursuant to Federal Rule of Civil Procedure 12(b)(6), that the United States' Complaint fails to state a claim upon which relief can be granted.

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 458 (7th Cir. 2007). To state a claim for relief, a plaintiff need only provide a short and plain statement of the claim showing she is entitled to relief and giving the defendants fair notice of the claims. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

When considering a motion to dismiss under Rule 12(b)(6), the Court construes the complaint in the light most favorable to the plaintiff, accepting all well-pleaded allegations as true and construing all reasonable inferences in plaintiff's favor. Id. However, the complaint must set forth facts that plausibly demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plausible claim is one that alleges factual content from which the Court can reasonably infer that the defendants are liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Merely reciting the elements of a cause of action or supporting claims with conclusory statements is insufficient. Id.

1. The Barringers' Challenge to the Sufficiency of the Notices Does Not Warrant Dismissal of the Complaint

The Barringers argue that they "do not believe" that the notices of tax assessments and notice of federal tax liens complied with the law. See Mot. to Dismiss ¶¶ 9, 10. The Barringers assert that dismissal of the Complaint is therefore warranted.

The Barringers' argument that the notices might not have complied with the applicable law is not sufficient to demonstrate that the Complaint fails to state a claim. A complaint is only required to provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Tamayo, 526 F.3d at 1081 (also providing that the complaint need only give the defendant fair notice of the claim and the basis of the claim). The United States is not required to plead evidence. See Tamayo, 526 F.3d at 1081.

The Government has alleged that an assessment for deficiencies in taxes was made, notice and demand was sent, the Barringers failed to pay the deficiencies, and a tax lien attached to the properties. This is sufficient to state a claim. See United States v. Zabka, No. 10-1078, 2010 WL 2985356, at *2 (C.D. Ill. July 27, 2010) (Mihm, J.).

2. The United States is Not Required to Attach Exhibits to its Complaint

The Barringers next argue that, while the United States alleges that it has the right to proceed with the litigation, the United States did not attach the documents that authorized the United States to bring this action. The Barringers also argue that the United States did not attach the Notices of Federal Tax Liens referenced in the Complaint. See Mot. to Dismiss ¶¶ 1, 4.

Federal Rule of Civil Procedure 10(c) provides that a document attached to the complaint is considered "a part of the pleading for all purposes." Fed.R.Civ.P. 10(c). However, a plaintiff does not have to attach to the complaint the documents upon which the action is based. See Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); Tamayo, 526 F.3d at 1081 (stating that a complaint need not include evidence). Therefore, the United States' failure to attach the referenced documents to the Complaint does not warrant dismissal.

3. The United States is Properly Identified as the Plaintiff

The Barringers next argue that listing only the United States as Plaintiff, and not listing a specific agency, warrants dismissal. See Mot. to Dismiss ¶ 3. However, the United States is the real party in interest in an action to enforce a federal tax lien. See United States v. Kuyper, No. 11-4170, 2012 WL 1932111 at *3 n. 2 (D.S.D. May 29, 2012) (finding that "the United States government is the real party in interest in an action to enforce a federal tax lien"); United States v. Dawes, 161 F. App'x 742, 746 (10th Cir. 2005) (rejecting as frivolous the defendants' argument that the United States is not the proper plaintiff under 28 U.S.C. § 1345 in a case brought by the United States to reduce to judgment federal tax assessments and foreclose federal tax liens); 26 U.S.C. § 7403(a) ("In any case where there has been a refusal or neglect to pay any tax, or to discharge any liability in respect thereof . . . the Attorney General or his delegate, at the request of the Secretary, may direct a civil action be filed in a district court of the United State to enforce the lien of the United States").

The Barringers also appear to argue that the United States does not have the authority to sue because the suit must be brought by an agency in the District of Columbia that has authorization from Congress to operate outside that jurisdiction. See Mot. to Dismiss, ¶ 3 citing 4 U.S.C. § 72 ("All offices attached to the seat of government shall be exercised in the District of Columbia, and not elsewhere, except as otherwise expressly provided by law"). Such argument has been rejected as frivolous. See, e.g., United States v. Springer, 444 F. App'x 256, 260-61 (10th Cir. 2011) (rejecting as patently frivolous the argument that 4 U.S.C. § 72 limited the Secretary of Treasury to collect taxes only within the territorial limits of Washington, D.C.). The Court finds that the United States is the proper Plaintiff.

4. The Court Will Not Strike the Opening Paragraph of the Complaint

The Barringers argue that the opening unnumbered paragraph of the Complaint appears to contain facts, which violates the Federal Rule of Civil Procedure 10(b) requirement that all "allegations be specifically numbered and pled." Mot. to Dismiss ¶ 5; see Fed.R.Civ.P. 10(b) ("A party must state its claims or defenses in numbered paragraphs"). The Barringers alternatively assert that if the opening paragraph is not required for the allegations, the Court should strike that paragraph. Either way, the Barringers claim that the Complaint fails to succinctly and properly plead all relevant facts in numbered paragraphs and, therefore, the Complaint must be dismissed. See Mot. to Dismiss ¶ 5.

The opening paragraph of the Complaint does not contain any facts that are not included in the numbered paragraphs. The Barringers have not provided any basis on which the Court would either strike the opening paragraph or the entire Complaint.

5. The Court Rejects the Barringers' "District Director" Argument

The Barringers also argue that the Internal Revenue Service is required to operate through a series of internal revenue districts. According to the Barringers, the regulations require certain action by district directors that has not occurred, warranting dismissal of this cause of action. See Mot. to Dismiss ¶¶ 8, 11. While the Barringers' argument is not well developed, it is strikingly similar to the argument Jerold Barringer raised before this Court in United States v. Barringer, No. 12-3324, 2013 WL 211044 (C.D. Ill. 2013).

In the earlier case, Jerold Barringer argued that the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685 (1998) eliminated internal revenue districts and district directors. Jerold Barringer argued that because "no new delegation individual in a statutory or regulatory structure has been identified," the United States did not have authority to enforce the Internal Revenue Service summons against him. Barringer, 2013 WL 211044 at *2.

Citing numerous other cases, this Court rejected Jerold W. Barringer's argument and found the United States had the authority to enforce the summons. Id. at *2; see also Grunsted v. Commissioner, 136 T.C. 455, 461 (2011) (noting that the Restructuring and Reform Act included a savings provision that kept in effect regulations that refer to officers whose positions no longer existed and specifically provided that nothing in the reorganization plan would impair any right or remedy to recover any penalty claimed to have been collected without authority); United States v. Sanders, No. 11-912, 2012 WL 4088823, at *7 (S.D. Ill. 2012) (finding the "district directors" argument meritless); United States v. Miller, 444 F. App'x 106, 107-08 (8th Cir. 2011) (rejecting argument that the IRS restructuring "abrogated the duty to pay taxes by eliminating the district offices where taxpayers previous filed returns"). For the reasons stated in Barringer, 2013 WL 211044 at *2, and the cases cited therein, the Court rejects the Barringers' argument.

6. The United States Did Not Need Approval from the Local United States Attorney

The Barringers next argue that the United States failed to demonstrate that it has the authority or permission to appear in the Central District of Illinois without the approval of the local United States Attorney, who is in charge of all actions filed on behalf of the government in the Central District of Illinois. See Mot. to Dismiss ¶ 12. However, 28 C.F.R. § 0.70(a) assigns the prosecution in all courts, other than the Tax Court, of civil suits and other matters arising out of the internal revenue laws to the Assistant Attorney General, Tax Division, as in this case.

C. The Barringers Cannot Raise Arguments on Behalf of Defendant Wernle

The Barringers last argue that Defendant Wernle is not within the territorial jurisdiction of this Court and that if Wernle has a valid lien with priority, his lien will exceed and eliminate any claims to property by the United States. See Mot. to Dismiss ¶¶ 6, 7. Although Jerold W. Barringer is a licensed attorney, the Barringers make no claim that they represent Wernle. Therefore, these arguments are not properly before the Court.

IV. CONCLUSION

For the reasons stated, the Barringers' Motion to Dismiss [10] is DENIED. The Barringers shall file an Answer to the Complaint on or before September 10, 2014.

ENTERED: August 27, 2014

For the Court:

Sue E. Myerscough
United States District Judge

[notorial dissent]

And there's any question as to why he lost his right to practice before the court?????

[Doktor Avalanche]

And there's any question as to why he lost his right to practice before the court?????

They should have let him. At the very least it would have been entertaining in an otherwise dull and routine tax dodger case.

[Dr. Caligari]

The attorney-discipline board in Illinois has recommended that Barringer be suspended from the practice of law in Illinois for 6 months, and placed on 18 months probation, for filing frivolous anti-tax cases:

http://www.law360.com/tax/articles/6141 ... mpaign=tax

[jcolvin2]

Filed January 20, 2015

In re Jerold Wayne Barringer
Respondent-Appellee

Commission No. 2012PR00055

Synopsis of Review Board Report and Recommendation
(January 2015)

This matter arises out of the Administrator's four count Complaint charging Respondent with misconduct with making frivolous arguments in briefs and motions he filed in three separate tax matters and with making a false statement to the Administrator. Following a hearing, the Hearing Board found that Respondent filed frivolous pleadings and briefs in the three tax matters. The Hearing Board found that the Administrator did not prove that Respondent made a false statement to the Administrator. The Hearing Board recommended that Respondent be suspended for a period of six months.

Upon review, the Administrator challenged the recommendation of the Hearing Board and contended that Respondent should be suspended for six months and until further order of the Court. Respondent challenged the findings of misconduct. Respondent contended that no discipline should be imposed, or in the alternative, that a three month suspension should be imposed.

The Review Board affirmed the findings of the Hearing Board. Given the concerns regarding Respondent's insistence on filing frivolous pleadings, the Review Board recommended that a probationary period following the period of suspension would best serve to protect the public. Accordingly, the Review Board recommended that Respondent be suspended for a period of two years stayed after six months by a period of probation for eighteen months with conditions.

BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION


In the Matter of:

JEROLD WAYNE BARRINGER,


Respondent-Appellee,


No. 6185092.

Commission No. 2012PR00055


REPORT AND RECOMMENDATION OF THE REVIEW BOARD

SUMMARY

Respondent was admitted to practice law in 1983. He concentrates his practice in representing individuals in tax matters. At the time of the underlying disciplinary hearing in this matter, Respondent had been disbarred from the practice of law in the United States District Court or the Western District of Oklahoma, and he had been suspended from the practice of law in the United States Court of Appeals for the Tenth Circuit and the United States District Court for the Southern District of Illinois.

The Hearing Board found that Respondent filed frivolous pleadings and briefs in three separate tax matters. The Hearing Board recommended that Respondent be suspended for a period of six months. Upon review, the Administrator argues that Respondent's suspension should be continued until further order of the Court. Respondent challenges the findings of misconduct. Respondent contends that no discipline should be imposed, or in the alternative, that a three month suspension should be imposed. For the following reasons, we affirm the findings of the Hearing Board. We agree with the Hearing Board's recommendation that Respondent be suspended but believe that a probationary period following the period of suspension would best

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serve to protect the public. Accordingly, as set forth below, we recommend that Respondent be suspended for a period of two years stayed after six months by a period of probation for eighteen months with conditions.

RESPONDENT'S MISCONDUCT

Count I: Respondent's Filing of a Brief on Behalf of Denny Patridge

The facts underlying Respondent's misconduct are set forth in greater detail in the Hearing Board's thorough Report. In summary, Respondent represented Denny Patridge in an appeal before the United States Court of Appeals for the Seventh Circuit from Partridge's criminal conviction for tax evasion, money laundering and wire fraud. In his opening brief, Respondent based his arguments on two primary premises?1) that the federal government was required to prove at trial that Patridge was aware of the specific provisions of the tax code that he was accused of violating and 2) that the federal government was prohibited from subjecting Patridge to penalties because the tax forms in question failed to display a valid control number from the Office of Budget and Management as allegedly required by the Paperwork Reduction Act of 1995.

The Court of Appeals issued an opinion finding that the nineteen issues raised by Respondent in his brief, including the above issues, were "all frivolous." The court also stated that Respondent "performed below the standard of a pro se litigant; we have serious doubt about his fitness to practice law." United States v. Patridge, 507 F.3d 1092, 1093-1095 (7th Cir. 2007). The court noted that Respondent failed to follow court rules regarding requirements for the appendix to his brief. The court issued an order for Respondent to "show cause why he should not be fined $10,000 for his frivolous arguments and noncompliance with the Rules, and why he

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should not be suspended from practice until he demonstrates an ability to litigate an appeal competently and responsibly." Respondent paid the fine and the court declined to suspend him.

While we are not bound by the decision of the court in the underlying proceeding, we can properly take the decision into account along with all of the other evidence that was presented in determining whether misconduct has been established. In re Owens, 144 Ill. 2d 372, 378-79, 581 N.E.2d 633 (1991). Pursuant to Rule 3.1 of the Illinois Rules of Professional Conduct, the determination as to whether a position is frivolous is based upon an objective standard of what is reasonable for an attorney to believe at the time a position is asserted. Simply because an attorney honestly believes the position is well grounded in law or fact does not mean the attorney has sufficient grounds to file a pleading under the Rules. See, e.g., In re Bulger, 02 CH 40 (Review Bd., May 3, 2004), approved and confirmed, No. M.R. 19079 (Jan. 20, 2004); In re Greanias, 01 CH 117 (Hearing Bd., June 12, 2003), approved and confirmed, No. M.R. 19079 (Jan. 20, 2004).

Before this Board, Respondent continues to defend his positions taken in the Patridge matter and contends that they were not frivolous. Respondent relies upon the same cases he relied upon before the Hearing Board, cases that the Hearing Board found did not support his position. As demonstrated by the record and particularly by the testimony of the Administrator's expert, Respondent refuses to recognize existing law and fails to set forth any good faith arguments for the modification or reversal of existing law. We agree with the Hearing Board that Respondent's positions were frivolous and that Respondent violated Rule 3.1(1990) by filing the brief on behalf of Patridge and violated Rule 8.4(a)(5) by engaging in conduct prejudicial to the administration of justice.

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Count II: Respondent's Filing of a Brief on Behalf of Lindsey K. Springer

Respondent represented Lindsey Springer in an appeal before the United States Court of Appeals for the Tenth Circuit. The United States had filed a civil action against Springer seeking to reduce tax assessments to judgment and to foreclose on IRS liens. A judgment was entered against Springer and Springer appealed. Respondent filed a brief devoting a considerable portion of his brief arguing that the IRS has no authority to collect taxes outside of Washington, D.C. In addition, after a criminal indictment was returned against Springer, Respondent filed a motion to stay in the civil appeal, arguing that the IRS no longer legally existed. The Tenth Circuit Court of Appeals found that Respondent's made "blatantly frivolous statements" in the motion to stay and the court entered an Order and Judgment in the case finding that Respondent's arguments in his brief were "patently frivolous."

Springer was convicted of tax evasion and failure to file a tax return. In his appeal from his criminal conviction, Respondent filed a brief again offering the same arguments and contending that the Treasury Secretary lacked the "jurisdiction and authority to enforce offenses concerning the Internal Revenue Laws" outside of the District of Columbia. The Tenth Circuit Court of Appeals found that Respondent's arguments had previously been rejected as frivolous.

The Tenth Circuit Court of Appeals initiated disciplinary proceedings against Respondent based upon the frivolous arguments Respondent made in the Springer brief. In September 2011, the court suspended Respondent from practicing before it.

As found by the Hearing Board, Respondent's arguments have been unanimously rejected by numerous other federal courts. In addition, Respondent has raised similar arguments in other cases and that his positions have uniformly been rejected as frivolous or meritless. Respondent has not directed this Board's to one court decision that found that any of his

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arguments have any merit. Consequently, we affirm the findings of the Hearing Board that Respondent violated Rule 3.1(2010) by filing a brief that contained numerous frivolous positions and violated Rule 8.4(d)(2010) by engaging in conduct prejudicial to the administration of justice. Respondent's conduct burdened the court system and wasted judicial resources. See, In re Carr and Hess, 2010PR00046 and 2012PR00047 (Review Bd., June 28, 2012), approved and confirmed, No. M.R. 25521 (Nov. 19, 2012) and No. M.R. 25481 (Sept. 17, 2012)(respondents violated Rule 8.4(a)(5) by filing frivolous claims).

Count III: Respondent's Filing of a Motion to Dismiss on Behalf of Frankie Sanders

Frankie Sanders had not paid income taxes or filed returns between 1998 and 2010. In February 2012, the United States filed a petition to enforce an IRS summons against Sanders in the United States District Court for the Southern District of Illinois. In March 2012, Respondent filed a motion to dismiss arguing, as in the Springer case, that the United States could not proceed against Sanders because IRS district directors could only undertake collection functions within their geographic internal revenue districts and the Secretary of the Treasury had no authority to enforce tax laws outside the District of Columbia. The court denied the motion stating that Respondent had previously made the same arguments in prior cases before the court and the court had found them meritless. The court stated that it "refuses to expend further resources to repeat the same findings and conclusions here."

On December 10, 2012, the United States District Court for the Southern District of Illinois suspended Respondent from the practice of law in that court and terminated Respondent's representation of Sanders, stating that the court "need not allow [Respondent] to waste the valuable time of the Court nor subject additional clients to such worthless advocacy."

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We agree with the Hearing Board's assessment that Respondent did not acknowledge existing law and made no good-faith argument for its modification or reversal and we affirm the findings that Respondent violated Rules 3.1 and 8.4(d).

SANCTION RECOMMENDATION

In determining the appropriate sanction, this Board must consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). In addition, this Board may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000).

In aggravation, the Administrator noted that Respondent unsuccessfully sought reinstatement to the Tenth Circuit, and in November 2012, claimed that his arguments before the Tenth Circuit were "poorly chosen and done in haste" and would not occur again. The Tenth Circuit declined to reinstate Respondent to the practice of law, stating that his petition did not "reflect that Mr. Barringer fully understands the gravity of his unethical conduct and the resulting waste of judicial resources." Despite his statements in his petition for reinstatement to the Tenth Circuit, Respondent continued to make the same arguments he claimed he would not make again, including in his own tax case. In August 2011, Respondent was served with an IRS summons seeking information about his tax liability for the years 2001 through 2007. Respondent filed a motion to dismiss in January 2013 based on his "geographic districts" argument that the Secretary of the Treasury has no authority to enforce tax laws outside the

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District of Columbia. Thus, Respondent filed this motion just two months after he claimed he would not make the same arguments again.

Respondent has been previously disciplined. In 2001, Respondent was disciplined for his statements in a motion for substitution of judge. In re Barringer, 00 SH 80, petition to impose discipline on consent allowed, No. M.R. 17621 (Sept. 21, 2001). Respondent represented a husband in divorce post-decree matters. He falsely claimed that the judge had applied for a loan at his client's place of employment but had been rejected because of his poor financial state, that the judge had held the client in contempt for failure to meet his financial obligation when the judge had his own financial problems, and that the judge had held an improper ex parte interview with one of the client's minor children. Respondent was censured on consent.

The Court has suspended attorneys who have engaged in conduct that is similar to Respondent's misconduct. In In re Holman, 96 CH 679, petition to impose discipline on consent allowed, No. M.R. 12939 (Nov. 26, 1996), the attorney was suspended for five months for filing a meritless claim in an employment matter. The attorney also lied to his opposing counsel in the case. In In re Dore, 07 CH 122 (Review Bd., Feb. 25, 2011), recommendation adopted, No. M.R. 24566 (Sept. 20, 2011), the attorney was suspended for five months and until he completed the ARDC Professionalism Seminar for filing frivolous pleadings in three separate matters and for making false statements about the integrity of a judge. In In re Carr and Hess, 2010PR00046 and 2012PR00047 (Review Bd., June 28, 2012), approved and confirmed, No. M.R. 25521 (Nov. 19, 2012) and No. M.R. 25481 (Sept. 17, 2012), Carr filed, on Hess's behalf, frivolous pleadings in litigation arising out of Hess's departure from a law firm. Carr was suspended for nine months and Hess was suspended for six months. Given the precedent and the seriousness of Respondent's misconduct, we believe that the misconduct warrants a suspension of six months.

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While the Administrator seeks to impose a suspension of six months and until further order of the Court, he offers no precedent for such a harsh sanction given the Hearing Board's findings that Respondent did not act with malicious intent, did not falsely impugn the integrity of anyone else, and did not intend to harass anyone. Cf., , In re Sarelas, 50 Ill. 2d 87, 277 N.E.2d 313 (1971) (respondent suspended for two years and until further order for engaging in a "litigious storm" that included unwarranted accusations of fraud and corruption by the court).

On the other hand, we are troubled by Respondent's continued insistence on filing frivolous pleadings and briefs that waste judicial resources and thwart the court's ability to efficiently adjudicate matters before it. We believe that simply suspending Respondent for a period of several months will do little to address this concern. Instead, we believe that the public and the profession would be better served by requiring Respondent to participate in a longer period of probation following his suspension, during which his practice could be monitored. See, e.g., In re Jordan, 157 Ill.2d 266, 275, 623 N.E.2d 1372 (1993).

We recommend that Respondent, Jerold Wayne Barringer, be suspended for a period of two years, with the suspension stayed after six months, by a period of probation for eighteen months subject to the following conditions which are to be satisfied prior to the termination of probation:

1. Respondent shall comply with the provisions of Article VII of the Illinois Supreme Court Rules on Admission and Discipline of Attorneys and the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigations relating to his conduct;


2. Respondent shall successfully complete the ARDC Professionalism Seminar during the first year of his probation;


3. Respondent shall attend meetings as scheduled by the Commission probation officer. Respondent shall submit quarterly written reports to the Commission


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probation officer concerning the status of his practice of law and the nature and extent of his compliance with the conditions of probation;

4. Respondent shall, within the first thirty (30) days of probation, enroll in a law office management program sponsored by or through the Cook County, Chicago or other bar association and shall, upon enrollment, notify the Administrator, in writing, of the name of the attorney with whom Respondent is assigned to work. In the alternative, Respondent shall obtain an attorney mentor that meets with the approval of the Commission probation officer. Through Respondent's participation in the law office management program or involvement with a mentor, Respondent shall:


a. Establish and maintain a system for maintaining records as required by Supreme Court Rule 769; and


b. Report to the law office management program, his mentor and to the Administrator any issuance or imposition of sanctions or fines upon Respondent by any court;


5. Respondent shall authorize the attorney assigned to work with him in the law office management program to:


a. Periodically review pleadings and briefs filed by Respondent in court for compliance with the Rules of Professional Conduct;


b. Disclose to the Administrator on a quarterly basis, by way of signed reports, information pertaining to the nature of Respondent's compliance with the law office management program or mentoring program and the above described conditions;


c. Promptly report to the Administrator Respondent's failure to comply with any part of the above described conditions; and


d. Respond to any inquiries by the Administrator regarding Respondent's compliance with the above described conditions;


6. Respondent shall reimburse the Commission for the costs of this proceeding as defined in Supreme Court Rule 773 and shall reimburse the Commission for any further costs incurred during the period of probation;


7. At least thirty (30) days prior to the termination of the period of probation, Respondent shall reimburse the Disciplinary Fund for any Client Protection payments arising from his conduct;


8. Respondent shall notify the Administrator within seven (7) days of any arrest or charge alleging his violation of any criminal or quasi-criminal statute or ordinance;


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9. Respondent shall notify the Administrator within fourteen (14) days of any change of address; and


10. Probation shall be revoked if Respondent is found to have violated any of the terms of probation. If probation is revoked, Respondent shall be suspended for eighteen months.



Respectfully Submitted,

Johnny A. Fairman, II
Robert M. Henderson
Benedict Schwarz, II


CERTIFICATION

I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on January 20, 2015.


Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois

[.]

Respondent "performed below the standard of a pro se litigant; we have serious doubt about his fitness to practice law."

Ouch.

Rule #1 of lawyering if you want to stay in business: Don't do anything that will get you unfavorably compared by a CCA to all of the pro-se whack-jobs out there who somehow or another actually manage to meet what are very minimal pro-se standards.

[Samphire]

Barringer had the habit when representing Jo Hovind of starting his cross-examination by saying something like "Is it....strike that..." It was rare that he started a question without immediately striking it as though he had no idea what he was going to say before he got to his feet.

I looked up the property the IRS wish(ed) to forfeit - 200 West Front Street Nokomis - on Google Earth. It's a little white single storey timber shack the back end of which is occupied by a beauty salon with the appropriate name of Suzzie. I doubt its forced sale will go far in satisfying the tax claim.

Nokomis is a very quiet place; even the one remaining horse has left town. Jerry will have to travel some miles to find somebody to mentor him and who with any sense would want the obligation?

[LPC]

The Review Board affirmed the findings of the Hearing Board.

Good grief. The original disciplinary complaint was filed in June of 2012, and in the last two and a half years we've had an investigation (I assume) by an Administrator, a hearing and recommendation by a Hearing Board, and now a review by a Review Board, and the Illinois Supreme Court has still taken no action and Barringer is still practicing law?

Clearly, a process designed by lawyers for lawyers.

[LPC]

Barringer had the habit when representing Jo Hovind of starting his cross-examination by saying something like "Is it....strike that..."

I don't think that most people realize that when a lawyer says something in court, followed by "strike that," the court reporter doesn't actually strike anything, but simply records what was said followed by the words "strike that."

[NYGman]

strike that...

Strikes me very Mel Brooks, has he been watching too many old comedy movies.

[LPC]

The US has filed an action against Jerold Barringer to reduce his tax liabilities to a judgment against him (and his wife) and to enforce the federal tax lien against some real property, to which Barringer has objected on various grounds, all of which have been denied, and some of which are the same frivolous arguments that have gotten him suspended by some courts.

United States v. Jerold W. Barringer et al.; No. 3:14-cv-03132 (8/27/2014)

On 1/26/2015, the court entered default judgments in favor of the United States and against several named defendants (other than the Barringers), ruling that defendants Janet E. Chott-Beasley and Merle Wernle 28 have no interest in the real property known as 200 West Front Street, Nokomis, IL 62075, and that defendant Merle Wernle has no interest in the real property known as 200 West Front Street, Nokomis, IL.

The action against the Barringers is still pending.

[notorial dissent]

Come to mind, that Barringer's problems may be related to the fact that as a lawyer he isn't even as competent as most pro se types, at least his more recent track record would certainly seem to indicate this. Did he get his law degree with Orly, or at some sister institution of not-learning?

[Samphire]

Hey - isn't Barringer something to do with that Hovind character?

Ok, ok. I'll get my coat.

[Paths of the Sea]

Hey - isn't Barringer something to do with that Hovind character?

Ok, ok. I'll get my coat.

Hahahahahahahaha!

Come on, Samphire, I've already got mine!

Sincerely,
Maury Enthusiast!