As previously reported in my Passport Update #10, on April 15, 2021, I filed my Rule 59 Motion to Alter or Amend Judgment [Doc. 35, 17 pages]. This was in response to Judge Bates’ Order to Dismiss [Doc. 33, 1 page] this case and his Memorandum and Opinion [Doc. 34, 12 pages] in support of that Order.
On May 3, 2021, in response to my Rule 59 Motion, the duplicitous DoJ attorneys, Benton T. Morton and Ryan O. McMonagle, filed their Memorandum in Opposition to Plaintiff's Motion to Amend or Alter Judgment [Doc 36, 7 pages]. In their Memorandum, they stated:
According to McNeil, the Court committed three “clear errors” when it determined that he could not state a claim under 26 U.S.C. § 7345: (i) it failed to accept as true his allegation that the Internal Revenue Service maintains a “list” of taxpayers with seriously delinquent tax debts; (ii) it incorrectly concluded that McNeil cannot challenge the assessments against him; and (iii) it incorrectly concluded that the United States did not have to serve “its [income tax] assessment upon [him],” which “directly violates 26 U.S.C. § 6213.” Mot. to Alter Judgment (Dkt. No. 35) at 1-2.
McNeil’s identifies no actual errors at all, let alone “clear” ones. Nor does he explain why any of the supposed errors result in “manifest injustice.” Instead, McNeil simply rehashes points he has already made that the Court has already rejected. His motion should be denied.
I invite you to read my Rule 59 Motion and determine for yourself whether the well-pled arguments I made resemble anything close to the summary provided by the DoJ.
I should point out, however, one error that I DID make, which was citing Weldon v. U.S. as Supreme Court precedent. The DoJ is correct to point this out on page 5, footnote 1, of their Memorandum:
McNeil’s Motion repeatedly refers to the “binding Supreme Court precedent per Weldon v. U.S.” The Supreme Court never even granted certiorari in Weldon; the passage to which McNeil cites is apparently from a response to the petition for certiorari.
It is important to note, however, that the “response to the petition for certiorari” was written by the Department of Justice and the arguments I quoted were those of the government. One of the attorneys was Bruce R. Ellisen, who has intervened in many of our IRS record falsification lawsuits. This fact was conveniently omitted by Morton/McMonagle.
Here is the DoJ’s full argument extracted from their response to the petition [Doc. 19-6, beginning on page 4]:
ARGUMENT
The decision below is correct and, on the specific question presented, does not conflict with any decision of this Court or of any other court of appeals. Further review is therefore not warranted.
1.a. 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). The Commissioner is authorized under 26 U.S.C. 6212(a) to use certified or registered mail to notify a taxpayer that a deficiency has been determined against him. The notice of deficiency "shall be sufficient" if it is mailed to the taxpayer at his "last known address." 26 U.S.C. 6212(b).
If the taxpayer does not file a timely Tax Court petition, the deficiency shall then be assessed and the tax "shall be paid upon notice and demand." 26 U.S.C. 6213(c). 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. [Emphasis added]
As IRS attorney Cindy Lynn Wofford noted in her Motion to Dismiss my Tax Court case #22578-19, “….. respondent (IRS Commissioner) searched his records and found no evidence that respondent issued to petitioner a notice of deficiency within the requisite time period for any of the tax years at issue” (2000-2018). [Doc. 19-4, page 4, @9]
Therefore, as the evidence shows, and the Government attorneys and the Court misconstrue, no notice of deficiency was ever sent to me, no valid assessment was ever made against me, and the 3-year statute of limitations on assessment and collection has expired, which renders my alleged federal income tax liability uncollectible.
On June 23, 2021, I filed my Notice of Appeal to the D.C. Circuit Court of Appeals.