In my last blog, dated June 29, 2022, I ended by saying that my Reply to the Government’s “Brief for the Appellees” was due by July 8, 2022. But, as that filing deadline drew closer, I found myself facing deadlines for two other cases that Michael Ellis and I were assisting with.
So, on July 8th, I filed Appellant's Motion for Extension of Time to File Reply Brief with the Court, requesting that the date be extended to July 22nd. That Motion was Granted on July 18th.
On July 22, 2022, I filed Appellant's Reply Brief [15 pages].
In that Brief, I reiterated the four elements of “seriously delinquent federal tax debt” that must be met before it can be “certified”:
a. an unpaid legally enforceable Federal tax liability of an individual,
b. which has been assessed,
c. which is greater than $50,000, and
d. a notice of lien has been filed pursuant to section 6323 and the administrative rights under section 6320 with respect to such filing have been exhausted or have lapsed, or (ii) a levy is made pursuant to section 6331.
Note that all four criteria must be met for the alleged debt to be certified as “seriously delinquent”.
The Certification of Seriously Delinquent Tax Debt Fails on All Counts
As stated in my Amended Complaint, I filed a Petition in the United States Tax Court,. In that Petition, I claimed I never received signed, sworn Notices of Deficiency or Notices of Determination for the period 2000 thru 2018. The case, styled Robert Allen McNeil v. Commissioner of Internal Revenue, was assigned Docket No. 22578-19. Both the Government and the Court agreed with me.
Subsequently, in his order, Judge Foley dismissed citing his lack of subject matter due to that failing by IRS. Thus, both IRS attorney Wofford and Chief Tax Court Judge Foley explicitly and expressly confirmed that Defendant IRS failed to send signed, sworn Notices of Deficiency or Notices of Determination to me for the eighteen (18) year period from 2000 thru 2018.
We learn elsewhere from the Government that without such notice, there can be no valid assessment. In its Supreme Court Brief for the United States in Opposition in Weldon v. United States, 98-383 [View at United States Department of Justice website at this link: https://www.justice.gov/osg/brief/weldon-v-us-opposition.], the Government lawyers stated:
“In order to establish a valid tax assessment, lien or levy, the Internal Revenue Service is required to send certain notices to a taxpayer's "last known address." See 26 U.S.C. 6212, 6303. In the usual case, a deficiency in income tax may not be assessed or collected until after the taxpayer has been given notice of the deficiency and an opportunity to litigate the merits in the Tax Court prior to payment of the taxes in dispute. 26 U.S.C. 6213(a).”
“An assessment is unenforceable, however, if it is based upon a notice of deficiency that is determined to be invalid because it was not mailed to the taxpayer's "last known address." 26 U.S.C. 6213(a). If the normal 3-year statute of limitations on assessment and collection specified in 26 U.S.C. 6501(a) has expired by the time a notice of deficiency has been determined to have been invalid, it is ordinarily too late for the Commissioner to issue another notice of deficiency, and the taxes are therefore uncollectible.”
Without notice sent to my “last known address” (which it never was), there can be no valid assessment. Without a valid assessment, there can be no federal tax liability and, therefore, I do not have a “seriously delinquent tax debt”.
In my case, IRS records indicate, the Tax Court confirmed, and the Government has not disputed in this appeal, that no Notices of Deficiency nor Notices of Determination were sent to me at all for eighteen (18) years. Thus, the result is entirely predictable, and the Government has conceded, that:
* no notice of deficiency sent = no valid assessment
* no valid assessment = no tax liability
The bottom line is simple. The Government concedes, and does not dispute in this case, that the failure of the District Director to issue to me a notice of deficiency for each year 2000-2018 precludes any pretense a valid assessment exists upon which to base its claim I owe a seriously delinquent tax debt justifying suspension of my right to a passport. Further, by the same failure, the IRS has erroneously and unlawfully confiscated more than $65,000 from my earnings during my working years and from my Social Security benefits now in retirement.
In short sum, without a valid assessment, I have no federal tax liability and, therefore, no “seriously delinquent tax debt”.
Additional Bates Error
Despite those incontrovertible facts, Judge Bates based his refusal to adjudicate the failure of the IRS to issue notices of deficiency to me by absurdly holding that even though §7345 mandates, in the context of a passport revocation, that a debt “has been assessed”, it is supposedly improper for a person to raise the simple question whether a lawful assessment exists, even under the highly unusual circumstances of this case, such as the finding by the United States Tax Court and the Department of Justice that they do NOT exist. Mr. Bates held:
Paragraph (e)(1) only allows a court “to determine whether the certification was erroneous or whether the Commissioner [of the IRS] has failed to reverse [a] certification.” 26 U.S.C. § 7345(e)(1) (emphasis added). It does not allow an action to determine the validity of an underlying tax debt.
It is clear that §7345(e)(1) is based heavily on the “presumption of regularity”, a legal doctrine in which courts will sometimes “presume” that “official duties” have been “properly discharged” until the challenger presents “clear evidence to the contrary”, such as the incontrovertible evidence I have presented here. I contend that it is impossible for the Court “to determine whether the certification was erroneous….” without the ability to test the existence of a lawful assessment, as I have in this case. Since the language of the statute allows a court to determine whether a certification was erroneous, that power incontrovertibly contemplates a court’s power to determine whether one even exists. Such determination is explicitly authorized by Congress because it expressly mentioned “assessments” as a necessary element of certification justifying revocation.
Unquestionably, Judge Bates erred by holding that Congress supposedly did not authorize litigants, deprived of their rights to property and liberty, to challenge the existence of lawful assessments, in the context of passport revocations. With all due respect, Judge Bates’ decision has produced a nonsensical outcome. As he would have it, litigants deprived of property are barred from citing holdings of the United States Tax Court, grounded upon the concurring evidence and opinion of the United States Department of Justice, to question the existence of the case-dispositive assessments mentioned in §7345. No reasonable person would agree. If the IRS does not obey the law, their actions are ultra vires and void.
Let’s see how the Court of Appeals judges rule.
Request for Donations
As I’ve mentioned many times, the IRS is garnishing my Social Security benefits by $1,225.00 per month (well beyond the 15% authorized by statute). After paying my normal monthly living expenses, I have little left over to pay the recurring costs associated with the maintenance of this website.
That makes it difficult for me to carry out my duties as case manager for several outstanding cases besides mine. Those duties require me to edit, print, and mail documents, causing me to incur costs for paper, mailing labels, printer ink, postage and other ordinary and necessary items. In addition, I am required to frequently log onto PACER (Public Access to Court Electronic Records) to check docket activity, download files, etc. PACER charges for this access and sends me an invoice quarterly. Payment for the second quarter invoice is due on August 10th.
So, I am humbly asking each of you to make a donation to help offset these costs. All amounts are welcomed and appreciated.
Here is the link: DONATE.
Thank you!