Joe Patriot
123 Anywhere Street
Mytown, Maryland 12345
September 20, 1995
Certified Mail No. 1234 5678 9012 3456 7890
Ima Agent, Revenue Officer
Internal Revenue Service
24000 Avila Road
Laguna Niguel, California 92677
Re: (i) Request for Appeals Conference sent January 15, 1998;
(ii) Reply dated February 14, 1998.
Dear Mr. Agent:
Thank you for your February 14, 1998 reply to my January 15, 1998 request for Appeal
consideration for the years 1991 and 1992. In your letter, you state, "Effective April 1, 1996, the
Internal Revenue Service (IRS) implemented the Collection Appeals Program. There are no
legal requirements which mandate or otherwise govern the program. Rather, it is an
administrative process which the IRS voluntarily implemented as a means for allowing
individuals to appeal certain enforcement actions, such as the filing of tax liens." Are you
contending that because this program was voluntarily implemented, that the procedures that were
established in regards to the CAP are not binding or enforceable?
You go on to state, "Our review was limited to whether or not it was reasonable for the
IRS to file a notice of federal tax lien in your name." Is it your contention that the Appeals
function, in the case of a request based on the CAP, is not authorized to determine whether a
collection action is lawful? If so, please substantiate this claim by citing the basis of this alleged
limitation. If not, then please explain how a determination of the lawfulness of a given collection
action is made. Further, if a request for Appeal that is based on the CAP is limited in this
fashion, please inform me of any and all other options for an Appeal consideration, particularly
those which would not be limited in their scope.
You continue, "We determined that the lien was filed in accordance with sections 6201,
6303, 6321, and 6323 of the Internal Revenue Code." Mr. Agent, 26 USC § 6201, entitled
"Assessment authority", states in part:
“(a) Authority of Secretary
The Secretary is authorized and required to make the inquiries,
determinations, and assessments of all taxes (including interest, additional
amounts, additions to the tax, and assessable penalties) imposed by this title,
or accruing under any former internal revenue law, which have not been
duly paid by stamp at the time and in the manner provided by law. Such
authority shall extend to and include the following:
(1) Taxes shown on return
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The Secretary shall assess all taxes determined by the taxpayer or by
the Secretary as to which returns or lists are made under this title.
(2) Unpaid taxes payable by stamp ...
(3) Erroneous income tax prepayment credits ...”
[emphasis added]
It is clear from this section that the Secretary is authorized to assess only taxes not duly
paid by stamp and taxes which are shown on a return. Therefore, please explain how you
determined that the assessment which is the basis of the lien in my case is in accordance with the
limited authority delegated to the Secretary by § 6201. I have not filed any return for the period
covered by this lien, nor have I received any returns executed by the IRS. If you are contending
that the lawful authority to assess encompasses more than is shown above, please substantiate
that contention with cites of the applicable statutes and/or regulations.
Further, you state that the lien was filed in accordance with § 6303, entitled "Notice and
demand for tax", which states in part:
“(a) General rule
Where it is not otherwise provided by this title, the Secretary shall, as
soon as practicable, and within 60 days, after the making of an assessment
of a tax pursuant to section 6203, give notice to each person liable for the
unpaid tax, stating the amount and demanding payment thereof. Such notice
shall be left at the dwelling or usual place of business of such person, or
shall be sent by mail to such person's last known address.”
If it is your contention that this Notice and Demand for Tax was properly sent in accordance with
§ 6303, please either forward a copy of such Notice and Demand or explain the process by which
you determined it was properly sent, since as of this time, I have never received such a
document.
26 CFR § 601.106(f), Conference and Practice Requirements, states:
"Practice and conference procedure before Appeals is governed by Treasury
Department Circular 230 as amended (31CFR Part 10), and the requirements of
Subpart E of this part. In addition to such rules but not in modification of them,
the following rules are also applicable to practice before Appeals:
(1) Rule I.
An exaction by the U.S. Government, which is not based upon law,
statutory or otherwise, is a taking of property without due process of
law, in violation of the Fifth Amendment to the U.S. Constitution.
Accordingly, an Appeals representative in his or her conclusions of fact
or application of the law, shall hew to the law and the recognized
standards of legal construction. It shall be his or her duty to determine
the correct amount of the tax, with strict impartiality as between the
taxpayer and the Government, and without favoritism or discrimination
as between taxpayers." (emphasis added)
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It is clear that it is the duty of the Appeals function to determine the lawful basis of any
assessment which is disputed. It is this duty that my appeal is invoking in regards to the
collection actions being taken against me. Your refusal to give these issues an impartial hearing
is unquestionably a denial of my rights to due process and administrative appeal, and will be
tirelessly prosecuted.
Finally, you reference IRM § 5527 as containing some of the procedures for the CAP, but
in my copy of the IRM, this section is listed as "Reserved". If this section is no longer reserved,
please forward a copy of it so that I am aware of all the applicable procedures for this program.
In conclusion, please substantiate your determinations within 30 days of your receipt of
this letter by providing me with the information requested above. If there is documentation
which supports your determinaion, please forward such documentation to me. If you fail to reply
as requested, it will be presumed that you are denying my due process and administrative appeal
rights, and proceeding wrongfully.
Sincerely,
_________________________
Joe Patriot
Enclosures:
cc:
Copy of the February 14, 1998, letter; copy of page one of my January 15, 1998,
letter.
Retained
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to
file.