Bulten is only about seven months behind on this one.John J. Bulten wrote:Randy White is very hopeful that he has discovered how to remove an illegitimate NFTL in FL, and is in the process of proving it in court. ...
From the Lost Horizons site:
If you follow the link (which I have preserved), you will get a document entitled "Plaintiff's Rebuttal to Motion to Dismiss" for one "John Henry Doe," which is obviously a pseudonym.Florida warrior Randy White has crafted a powerful, easily adapted brief in connection with a Writ of Mandamus action which he shares with us here. Those facing tax agency efforts to evade the law by failing to process filed returns and other instruments, whether by the improper invocation of the 'frivolous' statute or otherwise, will find Randy's work to be highly useful;
However, Randy White (or someone) was stupid enough to leave the name of the court (Middle District of Florida) and the docket number (No. 5:05-CV-518), which can be brought up on PACER, and turns out to be a real case by Gail Meyer against Mark W. Everson as Commissioner of Internal Revenue.
And Ms. Meyer filed a "Plaintiff's Rebuttal to Motion to Dismiss" on 2/24/2006, Docket #4, which seems to be identical to the document prepared by Randy White, even down to the same number for the certified mail received.
What Bulten didn't tell us (or didn't know) is that the judge ruled *against* Meyer on 9/7/2006, entering an order dismissing the complaint she had filed despite the "useful" pleading prepared by Randy White.
I'm not going to try to quote the entire opinion, but will give you the last two pages:
So it's a complete bust.The final argument by the United States is that the Plaintiff’s Complaint is frivolous and premature. Specifically, the Plaintiff’s Complaint is devoid of any allegations that she has availed herself of any of the remedies set forth in the Internal Revenue Code, such as filing a petition in the Tax Court for review of any assessments, or otherwise challenged any statutory notices of deficiency, liens, or levies. See 26 U.S.C. § 6213 (providing process for petitioning Tax Court for review of assessments). Nor has the Plaintiff chosen to pay the assessed taxes and file a claim for refund, which if denied, could be reviewed in this Court. See 26 U.S.C. § 7422(a) (providing that no lawsuit seeking a refund based on an illegal assessment can be brought, without first filing a claim for refund with the Internal Revenue Service). Instead of seeking relief under either or both of these well established processes, the Plaintiff has chosen to file her Complaint, seeking relief that is barred under the legal theories described in this Order. Thus, it would appear that the Plaintiff’s Complaint is premature, frivolous, and cannot exist in this Court. See, e.g., Perkins v. United States, 314 F. Supp.2d 664 (E.D. Tex. 2004) (federal district court did not have subject matter jurisdiction over lawsuit brought by pro se taxpayers to set asked determination by IRS that they owed additional income taxes and penalties, since they did not appeal in Tax Court, and did not pay the disputed amounts and file an administrative claim for refund prior to filing suit). The Plaintiff should pursue her claims under the proper procedures provided in the Internal Revenue Code.
CONCLUSION
Because the relief the Plaintiff seeks is barred by both the Declaratory Judgment Act and the Anti-Injunction Act, and because the Plaintiff must first pursue relief under the remedies afforded by the Internal Revenue Code, the Court finds that the Plaintiff cannot state a claim for relief under any viable legal theory. The Court further finds that permitting the Plaintiff any opportunity to amend her Complaint would be fruitless. Accordingly, it is hereby ORDERED and ADJUDGED that the United States of America’s Motion to Dismiss (Doc. 3) is GRANTED, and the Plaintiff’s Complaint is DISMISSED. The Clerk is directed to enter judgment accordingly, terminate any pending motions, and close the file.
IT IS SO ORDERED.
DONE and ORDERED at Ocala, Florida this 7th day of September, 2006.
