Jxxxxxx & Lxxxx Xxxxxxxx
xxxx Xxxxxxxx Xxxxx
Cxxxxxxxxx, Xxxxx xxxxx
March 30, 2006
To: Internal Revenue Service
Attn.: Ms. Opheikens, EIN 0469246936
1973 North Rulon White Blvd.
Ogden, UT 84404-0040
RE: Letter 3176, Dated 3-21-06 (copy attached)
Taxpayer Identification Numbers XXX-XX-XXXX and XXX-XX-XXXX
Via Certified Mail XXXX XXXX XXXX XXXX XXXX
NOTE: THIS LETTER IS TIME SENSITIVE AND REQUIRES IMMEDIATE
ATTENTION AND ACTION.
Dear Ms. Opheikens;
We are writing in response to a Form Letter 3176 dated 3-21-06 from Dennis Parizek which listed you as the “Person to Contact”.
Firstly, we want to thank Mr. Parizek for providing to us additional written evidence of continuing IRS dereliction of duty, fraud and obfuscation. This Letter 3176 adds to the already voluminous evidence we have accumulated over the past 5+ years which clearly demonstrates that the IRS refuses to abide by the laws of this country and that employees of the IRS persist in committing crimes against us under the color of law. This will now include YOU, should you choose to ignore this demand letter and fail to act in accordance with the laws. All of these documents will come in very handy should we be required to initiate legal proceedings against you, personally, the other IRS employees who have conspired and abetted in these crimes against us. Whether that will be required or not is now up to you, it seems. You can either choose to abide by the law and process our legitimate demand for refunds of overpayments for the years in question, or we will litigate.
Let us start by saying that we found it almost comical that this Letter 3176 would state that the “information you sent is frivolous and your position has no basis in law”. We are not surprised that the IRS would raise such a claim. In fact, we expected it as yet another desperate attempt by the IRS to evade the law and to ignore indisputable evidence that may happen to be contrary to its arbitrarily predetermined position. Our tax returns were filed on Xxxxxx xx, 2005 and the mailing of these returns was witnessed by a third party. We are quite sure that it was the witnessing of this mailing that has prevented the IRS’s common ploy of claiming that it had “lost (our) return”. Since this delay tactic was prevented by our actions, the IRS next resorted to its common delay tactic #2 “we need more time”. It has now been 7 months to the day since our returns were received by the IRS. We firmly believe that any sane person and competent legal authority would agree that the IRS has had plenty of time to process our returns and issue the refunds for our overpayments as substantiated by those returns. Now, we see the IRS resorting to yet another delay tactic and attempt to evade the law by simply choosing to disregard the evidentiary content of our legitimate, legal filings. We are hereby giving you and the IRS one final reminder of the requirements of the law and one final opportunity to come into compliance with it. This will be our last letter before commencing legal proceedings.
As for the specific content of the Letter 3176, it is fraught with inaccuracies and inconsistencies including, but not limited to, the following:
1.) The “Amount of Claim(s)” listed at the top of this Letter 3176 is incorrect. It lists a “claim” of $XX,XXX.XX. The factual amount of our claims for tax years xxxx, xxxx, xxxx and xxxx is well in excess of that amount, as documented and substantiated by our returns filed for those years. Since the IRS has explicitly acknowledged the receipt of these returns in this Letter 3176, I will refer you back to the returns if you have any question as to the amounts of overpayments that have been validated and substantiated therein.
2.) Paragraph 1 of Letter 3176 states that “in reply to (our) Tax Return Dated
Xxxxxx xx, 2005, we have determined that the information you sent is frivolous and has no basis in law”. May I remind you that the term “frivolous” is a statutorily defined legal term, created by 26 USC 6702. To declare a return “frivolous” is to assert that it explicitly meets ALL of the conditions laid out in that statute. It would be quite easily demonstrated that our returns were proper under the law and that, as such, these proper tax returns – whether claiming a refund or not – do NOT meet the statutory definition of “frivolous” (which can be summarized as “self-contradictory”). We do find it quite revealing, however, that nowhere in this Letter 3176 does it explicitly state of infer that the underlying tax returns themselves, to which this form letter applies, are frivolous. Therefore, the assertion of any 6702 violation seems quite indefensible even though the burden of proof for such defense clearly lies with the IRS:
Sec. 6703 – Rules applicable to penalties under sections….6702 (frivolous return)
(a) Burden of proof
In any proceeding involving the issue of whether or not any person is liable for a penalty under section 6700, 6702, or 6702, the burden of proof with respect to such issue shall be on the Secretary.
It also seems very clear that Mr. Parizek has chosen to make such an arbitrary characterization of a legitimate evidentiary filing as a pretext for failing to incorporate the evidence contained in that filing into the IRS’ due process. Therefore, it seems that the IRS is thereby attempting to make the content of our testimony the issue here. This would seem to be an attempt on behalf of the IRS to defeat the statutory structure in which the overall revenue law operates in consistency with which structure the legal definition of “frivolous” is confined to purely mechanical aspects of our presentations of testimony. The determination of whether a return is “frivolous” extends solely to the question of whether a return constitutes a valid, cognizeable affidavit under the normal and logical standards by which such documents are judged – that is, neither contradicting itself, nor lacking some information upon which some something appearing on the affidavit itself purports to be based. It is not the rightness or wrongness of our filings that is at issue here. What is directly at issue is the IRS’s seeming refusal to take official notice of our legal and legitimate assertions and to incorporate those assertions into it’s calculations. This is continuing evidence of denial of our due process under the color of law, among other criminal offenses.
3.) Paragraph 1 of Letter 3176 also states that “we will not respond to future correspondence concerning these issues…” This position is not surprising since the IRS has not responded to any of our 50+ written requests for information and clarification that have been submitted, via certified mail with return receipt requested and received, over the past 5+ years. This previous and continuing lack of response, in and of itself, is a blatant violation of 5 USC - The Administrative Procedures Act. In this most recent example, it is very revealing that the “issues” to which your high-handed pronouncement refers are not even identified anywhere in your letter. Further evidence of fraud and obfuscation.
4.) Paragraph 2 of your letter goes on to “inform (us) of the potential consequences of the position you have taken and to offer (us) an opportunity to correct (our) position within 30 days…”. This is followed by an “offer”, in paragraph 13, that “If (we) send (you) a correct return(s), (you) will disregard the previous document(s) filed and not assess the frivolous return penalty.”
This seems to be a overt attempt on your behalf to coerce us into changing our testimony……written testimony that we submitted under penalty of perjury the content of which as absolutely true and correct as to every material matter under the law as it is written. This seems to be a clear attempt at subornation of perjury on behalf of the IRS and its employees, to which you are now a party and accessory. You and your employer may want to reconsider this position very carefully. I direct your attention to:
Title 18, Section 1512: Tampering with a witness, victim, or an informant
(b) Whosoever knowingly uses intimidation, threatens, or corruptly
persuades another person, or attempts to do so, or engages in
misleading conduct toward another person, with intent to-
(1) influence, delay, or prevent the testimony of any person in an
(2) cause or induce any person to –
(A) withhold testimony, or withhold a record, document, or other
object from an official proceeding……
5.) Paragraph 11 of Letter 3176 states that “Revenue procedure 68-12, 1968-1 C.B. 763 does not allow appeals procedures in cases of failure or refusal to comply with tax laws because of moral, religious, political, constitutional, conscientious or similar grounds.” We completely reject your attempt to classify our legal, legitimate filing of accurate tax returns as an “appeal” based on any of these “issues” or “grounds”. No such argument was ever put forth or inferred by us then or now and the insinuation that any such “issues” or “grounds” were raised by us is a willful misrepresentation of the facts. The facts are that we simply and accurately filed our tax returns based on the law as it is written and, therefore, we expect our returns to be honored and processed according to those laws. Nothing more and nothing less will be expected or tolerated.
6.) Paragraph 12 of your letter states that “we cannot accept the Form 1040 we received from you for the tax year xxxx, xxxx, xxxx, xxxx. We find it does not contain the information the law requires you to give and does not comply with certain Internal Revenue Code Requirements.” We find it very revealing that your letter does not specifically mention what supposed “required” information was not contained in our filings nor does it specifically mention what Internal Revenue Code “Requirements” were not met by our filings. This is additional evidence of fraud and obfuscation. It is ludicrous that the IRS could even suggest that it can lawfully disregard our sworn testimony on the sole basis that it does not match some arbitrary and unsubstantiated contrary position that the IRS has taken. This is a violation of the most obvious and fundamental principle of law – no one can be penalized for the content of their testimony, no matter what it is, unless it is knowingly and deliberately false. PERIOD.
If you would like to try to argue that point, we would welcome that challenge.
It is clear to us that the IRS may not understand who it is dealing with. I can assure you that we DO know the tax law. We have researched it and studied it very thoroughly and very carefully. Our returns were filed in complete accordance with the tax law as it is written. Furthermore, there is a vast (and rapidly growing) body of evidence in the public domain to substantiate that the bases upon which our returns were completed are thoroughly valid and legal and that similar testimony has been acknowledged, accepted and upheld by the IRS (and other taxing agencies) in hundreds upon hundreds of other cases. We would welcome the opportunity to introduce such evidence, including the testimony of sworn witnesses, into any official proceedings that may be required in the future. All these things considered, it seems that it is YOU and the IRS that may need a refresher on the law.
We can assure you that we will never be cowed or intimidated by the brazen threats, intimidation tactics and continuing willful disregard for the law on the part of the IRS. We should not have to remind you or any other IRS employee that our claims for refunds of overpaid taxes are well within the provisions of the Code and the statutes behind them. Since you have not actually challenged or disputed our claims, seem disinclined to even make the attempt to do so, and appear to have no lawful authority under which to do so in any event, no meaningful occasion for supporting your position has arisen or can even be remotely inferred. Nonetheless, we 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.
(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 allowable period of limitations, may credit the amount of such overpayment, including any interest allowed thereon, against any liability in respect of an internal 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.
That said, we further remind you, also for your edification, that 26 USC 7214(a) clearly states:
(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.
If you are willing to put yourself in this perilous legal jeopardy, that is your choice.
Additionally, 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 the position of the IRS continues to be one of non-response to our numerous and repeated requests for information and clarification and now includes the complete disregard for our legal filings of returns, it seems rather obvious that the IRS’ position clearly lacks “integrity and fairness” and does not help us in any way to understand the fact or facts in this matter that you allege to be “frivolous”. This course of action by the IRS does not afford us our right to equal protection under the law, nor does it afford us the right of due process under fundamental, common, equity, or other law. In fact, the generic form Letter 3176 is overzealous, excessively aggressive, and obviously meant to be intimidating. With these desperate tactics, by which is undertaken a deliberate attempt to mislead and intimidate lawful claimants, you and your employer are perilously close to outright fraud and other felonious actions.
IRM 22.214.171.124 (10-31-2004) states, in part:
The Taxpayer Bill of Rights II defines three elements of misconduct:
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, overzealousness, excessive aggressiveness, discriminatory
treatment, and intimidation.
We firmly believe that all three of these elements are present in our case.
Furthermore, you have been hereby directly notified of these transgressions. It seems you now have a choice to make. May we remind you that IRM 126.96.36.199 (10-31-2004) states, in part:
RRA98 section 1203 – Employee Responsibilities
Employees should have a basic understanding of the conduct provisions of section 1203 as outlined in Document 11403 (05/99), RRA98 section 1203 Procedural Handbook. You are also responsible for reporting allegations involving potential section 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 Section 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 referred to TIGTA….
I can assure you that any and all violations of statute and/or lawful procedure on your part and/or the part 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.
Furthermore, each and every “frivolous” or other penalty that is imposed against us 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).
Finally, IRS Publication 1 (Catalog number 6473W) states, in part:
The law generally provides for interest on (our) refund if it is not paid within 45 days of the date (we) filed (our) claim for refund.
Any further delays in processing our lawful claims for refunds of overpayment of taxes for years 2000, 2001, 2002 and 2003, 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). If necessary, we will prosecute these willful violations to the fullest extent of the law.
You have 30 days from the date of receipt of this letter – as determined by the date stamped or written on the return receipt of this certified mailing – to fully and completely meet the following demands:
1.) That a full and complete refund of all overpayments made to the IRS, as substantiated by our xxxx, xxxx, xxxx, and xxxx tax returns, be processed and issued immediately. The amounts of these overpayments are as follows:
Tax Year XXXX = $XX,XXX.XX PLUS INTEREST
Tax Year XXXX = $XX,XXX.XX PLUS INTEREST
Tax Year XXXX = $XX,XXX.XX PLUS INTEREST
Tax Year XXXX = $X,XXX.XX PLUS INTEREST
It is our contention that the statutory period of 3-years from the
date a tax return is due for refunds to be issued does not apply in this case since the IRS has continually refused to acknowledge or respond to our legitimate requests for information since early 2001, thus delaying the timely filing of our returns. We have voluminous evidence of this continued lack of response that we will be happy to introduce into legal proceedings, should that be required.
2.) That any and all penalties (including those for late filing, paying late, Civil Penalties, etc.) AND any interest associated with any amounts owed to the IRS be removed due to the IRS’ repeated failure to respond to any of our legitimate requests for advice and clarification on specific issues relating to the tax laws since early in 2001.
3.) That the amount of tax owed by us for xxxx ($X,XXX.XX) as outlined and acknowledged in IRS Notice CP11 Dated XX-X-05 (the amount of which we do not dispute as it accurately reflects our xxxx tax return) be netted against the total amounts of refunds (plus interest) due to us from xxxx, xxxx, xxxx, and xxxx .
4.) That we receive full, complete, detailed and accurate statements from the IRS showing all taxes for each of these years are now paid in full and that each of our accounts shows a ZERO balance being owed.
5.) That the Notices of Federal Tax Liens filed fraudulently and erroneously by the IRS against our assets and property be publicly removed immediately and that we receive notice from the IRS of such release of lien.
6.) That the IRS rescind its illegal instructions issued in XXXX to the private sector, non-privileged employer of Xxxxx X. Xxxxxxxx to disregard her legitimate W-4 withholding document and that the IRS be enjoined from future involvement with this or any other private agreement between Xxxxx X. Xxxxxxxx and her private sector, non-privileged employer.
You are hereby notified that, should you and the IRS continue to ignore our lawful and legitimate demands or continue your obvious delay tactics and willful evasion of the law, we will take action under authority of every applicable provision of law afforded us. This includes, but may not be limited to:
1.) referral of the evidence of crimes committed against us under the color of law (such as mail fraud, willful oppression, extortion, fraud, subornation of perjury, tampering with a witness in official proceedings, etc.) to a Federal Grand Jury,
2.) seeking a writ of mandamus from the appropriate Court of competent jurisdiction ordering the IRS to do what the law requires,
3.) filing a criminal lawsuit in the appropriate Court of competent jurisdiction naming you personally, other employees of the IRS who have conspired to commit and abetted in crimes against us under the color of law, as well as the IRS directly.
This is our final request and demand for the IRS and its employees to abide by the law.
Xxxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx
All rights reserved without prejudice All rights reserved without prejudice
Signed this day _____________________________________
Attachment: Copy of Letter 3176 dated Xxxxx xx, 2006