Ex-Navy TP tries to save his pension

[The Observer]

WARD DEAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

Release Date: JULY 07, 2009


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

ORDER

Before me is Government's Motion for Summary Judgment (Doc. 63) and Plaintiff's response (Doc. 74).

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere 'scintilla' of evidence supporting the nonmoving party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251, 106 S. Ct. at 2512).

II. ANALYSIS

Plaintiff is challenging the procedural validity of the Notice of Federal Tax Liens and the Notice of Levy filed against his Navy pension. Plaintiff contends that (1) The assessment in which the liens are based are procedurally invalid; (2) Records of the assessment were not provided to the Plaintiff upon request; (3) No lawful Notice and Demand for Payment was sent to Plaintiff; (4) Notices of Federal Tax Lien were not certified nor signed under penalty of perjury; (5) R.A. Mitchell, whose signature appears on the NFTLs, had no first-hand factual knowledge of the documents on which her facsimile signature appeared; (6) C. Nichols, whose name appears in the signature block of the NFTLs, is a pseudonym; (7) C. Nichols' name and signature were in the signature block of the NOL as the authorizing officer; and (8) DFAS, since April 2007, has wrongfully treated the IRS Notice of Levy as a continuous levy, in violation of DoD Finance Management Regulations.

a. Assessment Procedurally Invalid, Records of Assessment
not provided

Plaintiff claims that the underlying assessments were procedurally invalid because they fail to comply with 26 C.F.R. 301.6203-1, which requires that an assessment officer make and sign the summary record of assessment. 26 C.F.R. 301.6203-1 (1967). Plaintiff and the Government agree that Form 23C is used to meet this regulation. Plaintiff states that he has repeatedly asked the Government to produce the Form 23C, or any other document creating a procedurally valid assessment, but has only received a Certificate of Assessment, Payments, and Other Specified Matter (Form 4340) dated March 24, 2009. However, the Certificate of Assessment, Payments, and Other Specified Matter (Form 4340) dated March 24, 2009, signed by an IRS agent who certified that it is a true transcript of all assessments, penalties, interest, and payments on record for Plaintiff, that shows a date the Form 23C was issued, is presumptive proof that all the statutes and regulations were met. U.S. v. Chila, 871 F.2d 1015, 1017 (11th Cir. 1989); United States v. Dixon, 849 F.2d 1478 (11th Cir. 1988).

Plaintiff argues that the fact that the Certificate of Assessment, Payments, and Other Specified Matter (Form 4340) dated March 24, 2009, was prepared for litigation, and the fact that the Government has not provided verifiable proof, rebuts the presumption. The Government maintains an ongoing records for all taxpayers; when Plaintiff requested his assessment during discovery, the Government printed, signed and certified a true transcript of all assessments, payments, etc., for Plaintiff. This is sufficient. The Government was not required to provide Plaintiff with additional evidence. Summary judgment is appropriate on this issue.

b. Notice and Demand for Payment not sent to
Plaintiff

Plaintiff contends that he never received a Notice and Demand for Payment. It is not required that Plaintiff must physically receive the Notice and Demand; it must be "left at [his] dwelling or usual place of business" or "sent by mail to [Plaintiff]'s last known address." 26 U.S.C. section 6303(a) (1976). Plaintiff does not assert that the Government did not mail it to his last known address. Therefore, summary judgment is appropriate on this issue.

c. Notices of Federal Tax Lien not Certified or
Signed

Plaintiff argues that the Notice of Federal Tax Lien was not certified or signed in accordance with 26 U.S.C. section 6065, so it was procedurally invalid. 26 U.S.C. section 6065 (1976). However, the Tax Court has determined that 26 U.S.C. section 6065 only applies to documents originating with the taxpayer. Milam v. C.I.R., 87 T.C.M. (CCH) 1214 (2004), action on dec., 2004-94 (April 6, 2004) (citing Davis v. C.I.R., 115 T.C. 35 (2000). Therefore, the Notice of Federal Tax Lien is not required to be certified or signed. Summary judgment is appropriate on this issue.

d. Pseudonyms, No First-Hand Knowledge

Plaintiff maintains that the notices were procedurally invalid because the signatures were pseudonyms and signed by a person with no first-hand knowledge of the lien. "The form and content of the notice...shall be prescribed by the Secretary." 26 U.S.C. section 6323(f)(3) (1998). Form 668 has been selected as the manner to provide notice. 26 C.F.R. section 301.6323(f)-1(d)(1) (1967). A Form 668 must identify the taxpayer, the tax liability giving rise to the lien, and the date the assessment arose regardless of the method used to file the notice of Federal tax lien. Id. at section 301.6323(f)-1(d)(2). There is no requirement for a signature or personal knowledge. Therefore, even looking at the facts in the light most favorable to Plaintiff, the notices are procedurally valid if signed by pseudonyms or a person without first-hand knowledge. Summary judgment is appropriate on this issue.

e. DFAS treated Notice of Levy as Continuous Levy

Plaintiff contends that a warrant for distraint is required for the Government to levy his Navy pension because it was required in the 1939 Internal Revenue Code. Plaintiff argues that when Congress passed amendments in 1954, the intent was to continue in effect the provisions of existing law relating to distraint and levy. While that may be true, this statute has been amended numerous times. See 26 U.S.C. section 6331 (2004). The requirements to make a levy do not include a warrant for distraint, and a levy automatically continues on a salary or wages from the date the levy is first made until it is released. 26 U.S.C. section 6331(d), (e) (2004). Thus, summary judgment is appropriate on this issue.

IT IS ORDERED:

1. Summary Judgment is entered for Defendant, and this case is
dismissed with prejudice.

2. The trial, set for July 16, 2009, is cancelled. The United
States Marshals no longer need to house Plaintiff in the Federal
Detention Center located in Tallahassee, Florida.

3. The clerk is directed to close the file.

ORDERED on July 7, 2009.

Richard Smoak
United States District Judge

[Gregg]

The United
States Marshals no longer need to house Plaintiff in the Federal
Detention Center located in Tallahassee, Florida.

I'd love to hear the story that explains that remark.

Anyone know if "Subvet" has seen this? It's in his neck of the woods.

[Nikki]

Ward Dean = SubVet ???

[Gregg]

Ward Dean = SubVet ???

I dunno. That's not what I was implying in any way, but it may be. I don't recall him ever mentioning being involved in courts yet.

[Nikki]

Ward Dean = SubVet ???

I dunno. That's not what I was implying in any way, but it may be. I don't recall him ever mentioning being involved in courts yet.

SubVet's ever going to mention anything which reflects adversly on his Guru Du Jour?

AS IF

[LPC]

The United
States Marshals no longer need to house Plaintiff in the Federal
Detention Center located in Tallahassee, Florida.

I'd love to hear the story that explains that remark.

From the context, it would appear that Dean was being held at a federal facility near the federal courthouse in the Pensacola District so that he could attend the trial of the civil action. Once summary judgment was entered for the US, the trial was canceled, and Dean could be moved back to where he was (or wherever the BoP wants to put him).

[wserra]

Ward Dean = SubVet ???

Nope. See here and here for details.

[Joey Smith]

That's Doctor Tax Protestor to you.

[Quixote]

... a levy automatically continues on a salary or wages from the date the levy is first made until it is released. 26 U.S.C. section 6331(d), (e) (2004).

The levy is on Dean's navy pension, not on wages or salary, so IRC 6331(e) would not seem to apply. The levy might be a continuing levy of 15% of a federal payment under IRC 6331(h). Or the IRS may have levied on Dean's right to future payments under the pension.

IRM 5.11.6.1 (06-29-2001)
Retirement Income
Use discretion before levying retirement income.

A notice of levy is continuous for wages and salary. Other levies only reach property a third party is holding when the levy is received.

Reminder:
References to property include rights to property.


As long as the taxpayer has a fixed and determinable right to property, a levy attaches that right. Therefore, a levy on retirement income can reach payments in the future whether the taxpayer has begun receiving payments when the levy is served or not. This often means that a levy on retirement income reaches future payments. Because this type of levy may begin attaching payments long after the levy is served, follow-up when the taxpayer is expected to become eligible to receive payments. This may require a mandatory follow-up for Bal Due accounts reported currently not collectible.

If the taxpayer has the right to receive future payment but has not opted to do so, the levy attaches that right.

A levy served while the taxpayer is receiving periodic payments reaches payments due then, as well as payments as they become due later, as long as there is already a fixed and determinable right to the future payments.

[Cobalt Shiva]

Correct me if I am wrong, but I seem to recall that at one time the IRS would not go after pensions and such, but that Congress amended the tax laws so that the IRS can now go after pension payments, Social Security and the like.

Or am I befuddled as it is near lunch and my pork loin, garlic/cheese mashed potatoes and carrots are calling out to me?

Navy "retirement pay" is not a pension; it is a retainer against future services. This guy is part of the Navy Fleet Reserve and is subject to recall to active duty.

Personally, I'd love to see this seabag lawyer get his ass recalled to active so he can get a special court martial for violating Article 134 of the UCMJ.

[GoldandSilverEagles]

CAN YOU SAY "VICTORY" !!!

It's good to see another victory over those irs bastards when they are not willing to sign assessments under "penalties of perjury" .... AS REQUIRED BY STATUTE.

Hmmm... maybe the irs agent might be aware they are legally wrong and thus afraid to sign said assessment under "penalty of perjury"...

I wonder if the defendant used the Braffman case from 1966 in his defense. I believe that case is out of the 5th circuit, for those of you who are inclined....

[MSA]

CAN YOU SAY "VICTORY" !!!

It's good to see another victory over those irs bastards when they are not willing to sign assessments under "penalties of perjury" .... AS REQUIRED BY STATUTE.

Hmmm... maybe the irs agent might be aware they are legally wrong and thus afraid to sign said assessment under "penalty of perjury"...

I wonder if the defendant used the Braffman case from 1966 in his defense. I believe that case is out of the 5th circuit, for those of you who are inclined....

I can say "moron". You can't even understand a simple court case when it's staring you in the face. Amazing.

[jg]

CAN YOU SAY "VICTORY" !!!

It's good to see another victory over those irs bastards when they are not willing to sign assessments under "penalties of perjury" .... AS REQUIRED BY STATUTE.

Hmmm... maybe the irs agent might be aware they are legally wrong and thus afraid to sign said assessment under "penalty of perjury"...

I wonder if the defendant used the Braffman case from 1966 in his defense. I believe that case is out of the 5th circuit, for those of you who are inclined....

Please see at the bottom of the original post it says: "IT IS ORDERED:1. Summary Judgment is entered for Defendant, and this case is dismissed with prejudice." and at the heading it says: "UNITED STATES OF AMERICA, Defendant".
Please ask if you need help in understanding the phrase "Summary Judgment is entered for Defendant."

Perhaps one may be able to snatch victory from the jaws of defeat; but it is not proper to fabricate victory from summary judgement to the opponent.

[GoldandSilverEagles]

CAN YOU SAY "VICTORY" !!!

It's good to see another victory over those irs bastards when they are not willing to sign assessments under "penalties of perjury" .... AS REQUIRED BY STATUTE.

Hmmm... maybe the irs agent might be aware they are legally wrong and thus afraid to sign said assessment under "penalty of perjury"...

I wonder if the defendant used the Braffman case from 1966 in his defense. I believe that case is out of the 5th circuit, for those of you who are inclined....

Please see at the bottom of the original post it says: "IT IS ORDERED:1. Summary Judgment is entered for Defendant, and this case is dismissed with prejudice." and at the heading it says: "UNITED STATES OF AMERICA, Defendant".
Please ask if you need help in understanding the phrase "Summary Judgment is entered for Defendant."

Perhaps one may be able to snatch victory from the jaws of defeat; but it is not proper to fabricate victory from summary judgement to the opponent.

Are you claiming I've had 2 much to drink or what? Oopse...your right, one beer too many...thank you for the correction.

[Thule]

CAN YOU SAY "VICTORY" !!!

Let's see... I'm no expert on US law, so correct me if I´m wrong. But wouldn't it go something like:

Dean: I wanna sue the IRS!
IRS: This is silly.
Court: Mr. Dean, your arguments are hogwash and we have better things to do. Go away, and don't bother us again.

Nice victory...

[jcolvin2]

The back story - tax protesting and anti-aging drugs:

http://www.quackwatch.org/11Ind/dean.html

Dr. Dean's projected release date is June 19, 2012 according to the BOP inmate locator.

[grixit]

Correct me if I am wrong, but I seem to recall that at one time the IRS would not go after pensions and such, but that Congress amended the tax laws so that the IRS can now go after pension payments, Social Security and the like.

Or am I befuddled as it is near lunch and my pork loin, garlic/cheese mashed potatoes and carrots are calling out to me?

I don't like garlic myself. Usually i use oregano with pork and when i have pork with something sweet like carrots or yams, i use oregano and mint.

[cynicalflyer]

DEAN,WARD
Filing Date: 10/2/2007
Amount: $2,512,258
FEDERAL TAX LIEN Filing Number: 2007094265
Filing Date: 10/2/2007
Book/Page: 6227/832
Filing Office: ESCAMBIA COUNTY CIRCUIT COURT, FL

DEAN,WARD
Filing Date: 12/5/2006
Amount: $61,981
FEDERAL TAX LIEN Filing Number: 2006120508
Filing Date: 12/5/2006
Book/Page: 6042/1660
Filing Office: ESCAMBIA COUNTY CIRCUIT COURT, FL

[SteveSy]

Plaintiff argues that the Notice of Federal Tax Lien was not certified or signed in accordance with 26 U.S.C. section 6065, so it was procedurally invalid. 26 U.S.C. section 6065 (1976). However, the Tax Court has determined that 26 U.S.C. section 6065 only applies to documents originating with the taxpayer. Milam v. C.I.R., 87 T.C.M. (CCH) 1214 (2004), action on dec., 2004-94 (April 6, 2004) (citing Davis v. C.I.R., 115 T.C. 35 (2000). Therefore, the Notice of Federal Tax Lien is not required to be certified or signed. Summary judgment is appropriate on this issue.

Here is the actual law:

Except as otherwise provided by the Secretary, any return, declaration, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury.

- Emphasis mine

Amazing, not one single hint that "6065 only applies to documents originating with the taxpayer". Guess you have to have one of those secret decoder rings issued by the Federal Government to make that determination. It's this kind of crap that makes average people believe, and rightfully so, the federal courts are just a sham concerning taxpayers rights under the law. If congress truly intended it to be the way the courts have interpreted it they would have written it that way. Even if it was an error, one opinion forcing the government to comply with 6065 would prompt the congress to amend the statute almost immediately. Instead the courts ignore the law as written and make up their own version whenever they see fit.

[Gregg]

CAN YOU SAY "VICTORY" !!!

Let's see... I'm no expert on US law, so correct me if I´m wrong. But wouldn't it go something like:

Dean: I wanna sue the IRS!
IRS: This is silly.
Court: Mr. Dean, your arguments are hogwash and we have better things to do. Go away, and don't bother us again.

Nice victory...

Well, Wooden Nickels isn't exactly on anyone's short list for the Nobel Prize in Physics, ya know?