From: Val-David Smithson
Date: 22 December 2004
To: Internal Revenue Service
Attn: Mr. Barton, EIN: 0469205624
1973 North Rulon White Blvd.
Ogden, UT 84404
Note: THIS LETTER IS TIME SENSITIVE AND REQUIRES IMMEDIATE ATTENTION
This is the second and final request and demand for information and clarification specifically relating to your Letter 3176 dated 29 October 2004. A copy of the first request and demand is attached as "Exhibit A".
The first notice and demand was mailed to your attention on 16 November 2004 via Certified Mail - Return Receipt Requested. A photocopy of both the "Certified Mail Receipt" (PS form 3800, June 2002) which I received from "Clerk: KDN418" at the post office upon my paying the fee for said service, and the "Domestic Return Receipt" (PS Form 3811, February 2004) which I received by US Mail stamped "NOV.2[character is not complete] 200[sic, assuming your date stamp should show '4'] IRS - OSC RECEIVED OGDEN, UT 84201" is attached as "Exhibit B". The corresponding Article Number on the receipts is: "7004 2510 0000 5712 8642". Said Article Number was written in pen on the first notice.
Said first request and demand provided a 30 day window for you, as you did for me in your form Letter 3176, to respond to the questions I have regarding your allegation that the information I sent is "frivolous". As of the date of this letter, I have not received from you a response, thus necessitating this second and final request and demand for response.
I should not have to remind you that my claim for refund of overpaid taxes is within the provisions of the Code and the statutes behind them.
Since you have not actually challenged or disputed my claim, seem disinclined to make the attempt, and appear to have no lawful authority under which to do so in any event, no meaningful occasion for supporting it has arisen. Nonetheless, I will observe in that regard--and for your edification, as well-- that the laws reflected at 26 USC 6401(b)(1) and (c) state:
(b) Excessive credits
(1) In general
If the amount allowable as credits under subpart C of part IV of subchapter A of chapter 1 (relating to refundable credits) exceeds the tax imposed by subtitle A (reduced by the credits allowable under subparts A, B, D, and G of such part IV), the amount of such excess shall be considered an overpayment.
(continued next page)
(c) Rule where no tax liability
An amount paid as tax shall not be considered not to constitute an overpayment solely by reason of the fact that there was no tax liability in respect of which such amount was paid.;
that the “Subpart C of part IV of subchapter A of chapter 1”, to which 6401(b)(1) refers, is:
Sec. 31 -Tax withheld on wages
(a) Wage withholding for income tax purposes
(1) In general
The amount withheld as tax under chapter 24 shall be allowed to the recipient of the income as a credit against the tax imposed by this subtitle.;
and that the language of 26 USC 6402(a) relevantly states rather unambiguously that:
(a) General rule
In the case of any overpayment, the Secretary, within the applicable period of limitations, may credit the amount of such overpayment, including any interest allowed thereon, against any liability in respect of an internal revenue tax on the part of the person who made the overpayment and shall, subject to subsections (c), (d) and (e), refund any balance to such person.
I will further observe, solely for your edification, that 26 USC 7214(a) states that:
a) Unlawful acts of revenue officers or agents
Any officer or employee of the United States acting in connection with any revenue law of the United States—
(1) who is guilty of any extortion or willful oppression under color of law; or
(2) who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty; or
(3) who with intent to defeat the application of any provision of this title fails to perform any of the duties of his office or employment;
shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. The court may in its discretion award out of the fine so imposed an amount, not in excess of one-half thereof, for the use of the informer, if any, who shall be ascertained by the judgment of the court. The court also shall render judgment against the said officer or employee for the amount of damages sustained in favor of the party injured, to be collected by execution.
IRS "Publication 1" (Catalog Number 64731W) states:
THE IRS MISSION
Provide America's taxpayers top quality service by helping them understand and meet their tax responsibilities and by applying the tax law with integrity and fairness to all.
Since your position is one of non-response to my questions, such position lacks "integrity and fairness" and does not help me understand the fact or facts in this matter that you allege to be "frivolous". Your course of action does not afford me my right to equal protection under the law, nor does it afford me the right to due process under fundamental, common, equity or other, law. Your generic form Letter 3176 is over zealous, excessively aggressive, and meant to be intimidating. With these desperate tactics, by which is undertaken an effort to mislead and intimidate a lawful claimant, you are perilously close to outright fraud.
IRM 126.96.36.199 (10-31-2004) states, in part:
An employee violated a law, regulation, or rule of conduct…
An IRS system failed to function properly or within proper time frames…
An IRS employee treated a taxpayer inappropriately in the course of official business. For example, rudeness, over zealousness, excessive aggressiveness, discriminatory treatment, and intimidation. (These cases will be worked/handled by management within the employee's function.)
IRM 188.8.131.52 (10-31-2004) states, in part:
Employee's should have a basic understanding of the conduct provisions of §1203 as outlined in Document 11043 (05/99), RRA98 §1203 Procedural Handbook. You are also responsible for reporting allegations involving potential § 1203 violations to your manager for forwarding to the appropriate officials. Depending on the nature of the allegations, these officials may be management or TIGTA.
The employee's manager is required to complete Form 12217, §1203 Allegation Referral Form, Exhibit 13.1.15.-1 , and determine if the case should be referred to TIGTA or management. Except for EEO and tax related issues, allegations relating to all Executives, Senior Level Managers (paybanded and supervisory GS-15s) and Criminal Investigation Employees must be directly and immediately referred to TIGTA…
The following types of employee misconduct cases require referral to your manager for §1203 consideration:
Any and all violations of statute and/or lawful procedure on your part and/or those of your superiors and associates in this matter will be made known to the "IRS Commissioner's Complaint Processing and Analysis Group" and all other recourse under the law will be used to its fullest extent.
Further, each and every "frivolous", or other, penalty that is imposed
without any basis in law and fact, will be considered an "extortion
or willful oppression under color of law" -- a violation of 26 USC 7214(a)(1).
IRS Publication 1 (Catalog Number 64731W) states, in part:
The law generally provides for interest on [my] refund if it is not paid within 45 days of the date [I] filed [my]…claim for refund.
All delay in filing and processing my lawful claim for overpayment of taxes, after said 45 days, is now, and will be, considered intent on your part to defeat the application of the heretofore stated provisions of law, as well as all other provisions of Title 26 and the statutes behind them pertinent to this matter, thus causing a failure in the performance of the duties of your office or employment -- a violation of 26 USC 7214(a)(3).
You have 10 business days from the receipt of this letter -- as determined
by the date stamped or written on the return receipt (PS Form 3811,
February 2004) -- to file and process my claim for refund with all applicable
interest that has accrued since the 46th day of the filing of the claim
dated 6 September 2004. If you choose not to do so, I will take
action under authority of every applicable provision of law afforded
Signed this day _______________________
All rights reserved without prejudice
"Exhibit A" - Copy of form Letter 3176 dated October 29, 2004
"Exhibit B" - Proof of delivery for first Request and Demand for information