Kensei not happei

[Joey Smith]

Kensei
Joined: 30 Jan 2008
Posts: 1284

Posted: Tue Mar 10, 2009 9:41 pm Post subject:
I posted some info in the 843 thread. Basically, we were told the ACS was going to fax the levy release form to payroll dept. It didn't happen right away, so we rechecked a couple times then were told it could take a couple days or so...

Back from vacation, and they took all but $200 from wife's check. I previously reviewed 6331 info, etc. with the payroll manager but he seemed to blow it off, wouldn't let us meet to discuss it either. Called IRS today, man says he can't release the levy unless we set up a payment plan or get the penalties removed.

[Famspear]

Maybe Kensei would be happier if CtC adherent Patrick Michael Mooney were to come back to losthorizons and remind Kensei that having Kensei's wife's assets seized by the Internal Revenue Service just proves that Pete Hendrickson -- and Kensei -- must be right.

Kensei wrote:

I previously reviewed 6331 info, etc. with the payroll manager but he seemed to blow it off, wouldn't let us meet to discuss it either. Called IRS today, man says he can't release the levy unless we set up a payment plan or get the penalties removed.

Wow that's impressive, Kensei! I guess you showed them!

[Gregg]

Kensie is my favorite crackhead, I'm guessing he'll be still screaming when they sell his house on the steps of the courthouse. His earlier postings led me to believe he's a Doctor of some sort, anyone know what kind'?

[Nikki]

Proctologist springs to mind

[Doktor Avalanche]

Proctologist springs to mind

[ASITStands]

In one post, 'Kensei' suggests he'll petition tax court, but in another, he admits he did not request the CDP Hearing. He called various agents in an attempt to undo the penalties.

He was warned, "If he calls for the CDP Hearing, he'll have an opportunity to dispute the frivolous penalties in tax court. Other than that, he'll face collection." However, he thought it best not to call for the hearing. That was a big mistake, as he forfeited his appeal rights.

Calling for the CDP Hearing preserves the taxpayer's right to appeal the decision of the Appeals Officer, known as the notice of determination. Most readers understand.

But of course, 'Kensei' and the other 'Cracking the Code' warriors are too smart for that. Essentially, he was afraid he'd get another frivolous penalty. He lost all opportunity to dispute it before payment in full, and now, his only option is to make a claim for refund.

That will depend on the strength of his arguments (which I suspect will fail utterly).

[Tax Protester]

No that is not correct at all. The IRS itself even admits:

"If your refund claim is pending for six months or more and the IRS has not issued a notice of claim disallowance with regard to the claim, you may file suit in the United States District Court or United States Court of Federal Claims to contest the assertion of the penalty at any time. Once the IRS issues a notice of claim disallowance, however, you must file in the United States District Court or The United States Court of Federal Claims within two years of the date the IRS mails a notice of disallowance to you denying the refund claim."

The United State Tax Court is not even mentioned, nor is it an Article III Court, Title 28 does not even recognize the United States Tax Court as a bona fide court, in fact it is specifically excluded from the definitions of what a 'court' is.

Furthermore, there are the following IRS Forms one can file:

1. 843 'Claim for Refund and Request for Abatement'
2. 'Collection Appeal Request'

And guess what the IRS to date no CtCer has ever reported receiving a 'notice of claim disallowance'. I realize you hold to the socialist agenda, but the fact remains everybody is entitled due process.

[jkeeb]

Not mentioned is that one must pay the penalty in order to have a claim before the US District Court or Court of Claims. Once the penalty is paid, a claim is made (usually via F 843) but also by a simple statement that is signed under penalty of perjury. Once the claim is denied or not allowed in a reasonable period of time, one may seek relief from the District Court or Court of Claims.

[Famspear]

No that is not correct at all.

Protester, I think you may be confused. Are you referring to ASITStand's post? What exactly is it that you think is incorrect?

The IRS itself even admits:

"If your refund claim is pending for six months or more and the IRS has not issued a notice of claim disallowance with regard to the claim, you may file suit in the United States District Court or United States Court of Federal Claims to contest the assertion of the penalty at any time. Once the IRS issues a notice of claim disallowance, however, you must file in the United States District Court or The United States Court of Federal Claims within two years of the date the IRS mails a notice of disallowance to you denying the refund claim."

The United State Tax Court is not even mentioned, nor is it an Article III Court, Title 28 does not even recognize the United States Tax Court as a bona fide court, in fact it is specifically excluded from the definitions of what a 'court' is.

Furthermore, there are the following IRS Forms one can file:

1. 'Claim for Refund and Request for Abatement'
2. 'Collection Appeal Request'

And guess what the IRS to date no CtCer has ever reported receiving a 'notice of claim disallowance'. I realize you hold to the socialist agenda, but the fact remains everybody is entitled due process.

Some of what you are saying is actually more or less correct. But what does all this have to do with the unpaid section 6702 penalty (which is what I believe we're talking about)? Obviously, if the penalty is currently unpaid, you cannot maintain a lawsuit for a refund of the penalty. The Flora rule applies: If you want to contest the penalty in a court, the general rule is that you have to pay the penalty and then sue for a refund. Kensei probably does not want to go that route (though at this point that may be all that's left to him).

If I recall correctly, the Tax Court generally does not have the jurisdiction to determine the validity of the 6702 penalty. But after March 15, 2007, there is an exception to that rule (I think), in that you can have the 6702 penalty considered in a section 6330(d) proceeding. Other posters here can correct me where I'm wrong; I'm going from memory.

Anyway, are you and ASITStands talking about two different things, or what?

EDIT: Another point being that if you could have the 6702 penalty determined in the Tax Court, you could do that without first paying the penalty (an exception to the Flora full payment rule). But you have to jump through some hoops to get that Tax Court determination. I think Kensei may have lost his right to do that (?).

[LPC]

No that is not correct at all. The IRS itself even admits:

"If your refund claim is pending for six months or more and the IRS has not issued a notice of claim disallowance with regard to the claim, you may file suit in the United States District Court or United States Court of Federal Claims to contest the assertion of the penalty at any time. Once the IRS issues a notice of claim disallowance, however, you must file in the United States District Court or The United States Court of Federal Claims within two years of the date the IRS mails a notice of disallowance to you denying the refund claim."

Which is exactly what ASITStands said, which was that "now, his only option is to make a claim for refund."

The United State Tax Court is not even mentioned, nor is it an Article III Court, Title 28 does not even recognize the United States Tax Court as a bona fide court, in fact it is specifically excluded from the definitions of what a 'court' is.

It has been held that the Tax Court is not a "court" within the meaning of 28 USC section 610, which only means that it is not a "court" for purposes of Chapter 41 of Title 28, which concerns the Administrative Office of the United States Courts. It does NOT mean that the Tax Court is not a "bona fide court" for other purposes. See, e.g., William Mobley et al. v. Commissioner, No. 07-2019, 2008 TNT 132-13 (6th Cir. 7/8/2008).

[LPC]

If I recall correctly, the Tax Court generally does not have the jurisdiction to determine the validity of the 6702 penalty. But after March 15, 2007, there is an exception to that rule (I think), in that you can have the 6702 penalty considered in a section 6330(d) proceeding. Other posters here can correct me where I'm wrong; I'm going from memory.

You recall correctly. From a fairly recent (reviewed) opinion of the Tax Court:

On August 17, 2006, the Pension Protection Act of 2006 (the PPA), Pub. L. 109-280, 120 Stat. 780, was enacted. PPA sec. 855(a), 120 Stat. 1019, amended section 6330(d)(1), which provides our jurisdiction to review notices of determination issued pursuant to section 6330. [...]

Section 6330(d)(1) now provides:

SEC. 6330(d). Proceeding After Hearing. --

(1) Judicial review of determination. -- The person may, within 30 days of a determination under this section, appeal such determination to the Tax Court (and the Tax Court shall have jurisdiction with respect to such matter).

The Staff of the Joint Committee on Taxation, General Explanation of Tax Legislation Enacted in the 109th Congress (JCS-1-07), at 507 (J. Comm. Print 2007), explains the amendment to section 6330(d)(1): "The provision modifies the jurisdiction of the Tax Court by providing that all appeals of collection due process determinations are to be made to the United States Tax Court." We, therefore, have jurisdiction to review a notice of determination issued under section 6330 where the underlying tax liability consists of frivolous return penalties.

[...]

Petitioners did not receive a notice of deficiency with respect to the frivolous return penalties because the statutory deficiency procedures, sections 6211-6216, do not apply to frivolous return penalties under section 6702.5 Sec. 6703(b); Yuen v. United States, supra at 1224. Petitioners also have not disputed the penalties during a prior conference with respondent's Appeals Office. See Lewis v. Commissioner, supra. As petitioners have not otherwise had an opportunity to dispute the imposition of the frivolous return penalties, they may contest the penalties both at their section 6330 hearing and before this Court.

Dudley Joseph Callahan et ux. v. Commissioner, 130 T.C. No. 3, 2008 TNT 25-4, No. 5701-07L (2/5/2008) (IRS motion for summary judgment denied).

(For those not familiar with Tax Court procedures, the "130 T.C." designation is significant, because it means that the issue was thought to be important enough to require consultation with all of the judges of the Tax Court. So the opinion was circulated to all of the judges and, in this case, none of the judges disagreed with the decision. This is, therefore, the equivalent of a decision "en banc," meaning a decision of the entire court and not just one judge.)

So ASITStands original point is still correct. A collection due process hearing, and an appeal from the IRS to the Tax Court, allows for a review of the merits of frivolous return penalty. Having given up that right, the only way Kensei can get judicial review is to pay the penalty and then request a refund.

[Nikki]

So, to state things simply for the benefit of IdiotDuJour, the only thing Kensei accomplished with his FOIA requests, letter-writing campaign, and everything else he did was to totally eliminate any hope he ever had of any form of judicial or administrative resolution of his problem.

He has only three options left

Pay up

Wait for everything he owns to get liened, siezedm, and sold

Submit an offer in compromise

Even with those options, he is still subject to criminal prosecution if some US Attorney has a light week on his schedule.

[Nikki]

Damn Wrong again.

Kensei has another option I hadn't considered (upon which he's following up)

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If this weren't a side-line view of the self-destruction of a man and his family, it would be funny.

At least Mutter seems to have left the dark side.

[ASITStands]

No that is not correct at all. The IRS itself even admits:

"If your refund claim is pending for six months or more and the IRS has not issued a notice of claim disallowance with regard to the claim, you may file suit in the United States District Court or United States Court of Federal Claims to contest the assertion of the penalty at any time. Once the IRS issues a notice of claim disallowance, however, you must file in the United States District Court or The United States Court of Federal Claims within two years of the date the IRS mails a notice of disallowance to you denying the refund claim."

The United State Tax Court is not even mentioned, nor is it an Article III Court, Title 28 does not even recognize the United States Tax Court as a bona fide court, in fact it is specifically excluded from the definitions of what a 'court' is.

Furthermore, there are the following IRS Forms one can file:

1. 843 'Claim for Refund and Request for Abatement'
2. 'Collection Appeal Request'

And guess what the IRS to date no CtCer has ever reported receiving a 'notice of claim disallowance'. I realize you hold to the socialist agenda, but the fact remains everybody is entitled due process.

First of all, 'Kensei' said nothing about a "refund claim," or filing in District Court or the Court of Claims. And, he spoke specifically of contacting the "Tax Court tax force person."

He mentions Form 843, but specifically says, "Will review 843 instructions and Tax Court petition instructions." The whole point of my response was to discuss 'Kensei's' options.

Secondly, as suggested by 'Nikki,' 'Famspear' and 'LPC,' before any refund claim is made, or before any claim in District Court or the Court of Claims, the penalty must be paid in full.

It appears from the text, ""If your refund claim is pending for six months or more and the IRS has not issued a notice of claim disallowance with regard to the claim, you may file suit ..." that you're thinking, "All 'Kensei' has to do is wait six months, and he can make a claim."

No. As 'Nikki' suggested, you have to actually make a claim for refund on Form 843 and receive a claim disallowance (or wait six months for a waiver of sovereignty) before filing suit in District Court or the Court of Claims, and before you make the claim for refund, you have to actually pay the entire penalty. The only option was the 15% of IRC § 6703.

Unfortunately, 'Kensei's' too late for Tax Court (i.e., at the notice of determination after a CDP Hearing) and too late for IRC § 6703 (i.e., as collection has already begun).

But of course, you and 'Kensei' are too smart for that. You know better than the IRS.

The reason "no CtCer has ever reported receiving a 'notice of claim disallowance'" is because no CtCer has ever filed a valid claim for refund, and not because six months have passed.

However, let me clue you in.

If a person files a valid claim for refund (i.e., to the proper party) and waits six months, and the Commissioner remains silent on the claim, that person has a waiver of immunity to sue the United States in either a District Court or a Court of Claims. It's the specific remedy at 26 CFR 301.7433-1, and it's incorporated into 26 CFR 301.6402-2 by way of IRC § 6532.

If a person receives a claim disallowance, that person also has a waiver of immunity to sue. So, it's either receive a claim disallowance or wait six months before filing suit.

Either way, you pay the entire penalty amount first.

[Gregg]

Damn Wrong again.




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If this weren't a side-line view of the self-destruction of a man and his family, it would be funny.

At least Mutter seems to have left the dark side.

Kensie is to the best of my knowledge has no children, and his wife seems to be swallowing the kool aid all by herself. Seems like he's jumping with eyes wide open to me....

On the "cash wrapped in colored paper" (can you believe that???) would that not be in itself evidence of conspiracy?

[Nikki]

On the "cash wrapped in colored paper" (can you believe that???) would that not be in itself evidence of conspiracy?

Uh-oh

Does that mean that the Tooth Fairy is in trouble?

[mutter]

someone explain why the tax court would not have jurisdiction to review/over turn anything the IRS has done. isnt that its entire reason for existance? Judicial review of tax matters. speaking of the frivilous penalties here

[Famspear]

someone explain why the tax court would not have jurisdiction to review/over turn anything the IRS has done. isnt that its entire reason for existance? Judicial review of tax matters. speaking of the frivilous penalties here

The reason is that the Congress has limited the subject matter jurisdiction of the Tax Court, by statute. Only certain kinds of taxes, only certain kinds of issues, in certain limited cases. For issues that the Tax Court cannot address, the taxpayer can go to District Court or the Court of Federal Claims or, in bankruptcy cases, to the Bankruptcy Court.

EDIT: Also, as noted earlier in the thread, the Tax Court CAN review and rule on the frivolous penalty determination in certain situations -- as long as the taxpayer follows the prescribed procedures. Kensei apparently did not do that, and thereby lost his right to litigate that in the Tax Court.

[LPC]

someone explain why the tax court would not have jurisdiction to review/over turn anything the IRS has done. isnt that its entire reason for existance? Judicial review of tax matters. speaking of the frivilous penalties here

The reason is that the Congress has limited the subject matter jurisdiction of the Tax Court, by statute. Only certain kinds of taxes, only certain kinds of issues, in certain limited cases.

This is something of a technicality, but Famspear has stated the issue backwards. Congress did not limit the jurisdiction of the Tax Court, but rather failed to expand it.

Every state has a court of "general jurisdiction" that can hear just about any kind of civil or criminal case, subject to whatever exceptions the legislature might impose. So, for example, the Courts of Common Pleas in Pennsylvania have general jurisdiction over most disputes, but appeals from decisions of government agencies must go to the Commonwealth Court. But if you file something in the Court of Common Pleas, you don't need to prove that the court has subject matter jurisdiction, but the other side would have the burden of showing that the court does NOT have jurisdiction because of a statute limiting the jurisdiction of the court.

The federal courts work the other way, because the federal courts are courts of limited jurisdiction, and not general jurisdiction, which means that when you file an action in federal court the burden is on you to show that Congress gave the court the power to hear that suit.

In the case of the Tax Court, Congress gave that court the power to hear certain kinds of tax disputes, but never gave it the authority to hear disputes about "anything the IRS has done." So in order to get into Tax Court, you have to show the court that Congress enacted a statute giving the court the power to hear the dispute. Otherwise, you lose because the court dismisses the action.

[Prof]

Dan's explanation is exactly correct. This is the essense of "subject matter jurisdiction." Every state has a court of general jurisdiction -- called District, Circuit, Common Pleas, Superior, and all sorts of other names, which are neither uniform from state to state and may be contradic tory from state to state. But, whatever the name, those courts have jurisdiction over all legal matters of any nature, including, where appropriate, concurrent jurisdiction with the federal district courts. (The work of these courts may be divided up, so that some are in the civil, criminal, or other "businesses," but this is done for docket control reasons and is not, fundamentally, a jurisdictional division in most states, the metropolitan Texas counties being an exception where there is a statutory enactment creating each civil and criminal court, so that the _____ th District Court in and for Bexar County will be, by statute, limited in jurisdiction to between civil or criminal matters.)

States also may create courts of limited jurisdiction -- called various names, like municipal, justice of the peace, county or county courts at law, district courts, etc. Again, the labels are different and the names do not have uniform meanings.

The "lower" state courts, like the US District, Bankruptcy, Tax, Circuit, etc. courts, are courts of limited jurisdiction, and may take on only such matters as assigned by statute.

In each of the courts of limited or special jurisdiction, you must -- as a plaintiff or complaining person -- plead expressly the specific jurisdiction of the court in which you are filing your action. The federal rules, for example, require an initial pleading to provide a short statement of jurisdiction.