Opinion
Case Number 5:02 CV 0351
August 26, 2002
PLAINTIFF'S MOTION TO VACATE "MEMORANDUM OF OPINION AND ORDER" AND "JUDGMENT ENTRY" DATED MARCH 18, 2002 AND TO REINSTATE ACTION
NOW COMES, Joseph T. Tornichio, the Plaintiff in this action and invokes the jurisdiction of this Court pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Plaintiff has at all times through no fault of his own, invoked the jurisdictional remedies available to him. He brings this action in the interest of truth and justice to find the material facts of the United States Government's claim that it has followed all of the Administrative Procedures as required by 26 U.S.C. § 6320 and 6330. He is in agreement with the government's position that the Distrect Court re-open this case, as the following shall note.
FACTUAL ARGUMENTS TO THIS CASE
Plaintiff would remind this Court, that he is claiming in his complaint, that this Court has jurisdiction to declare the "determination" at issue invalid. Plaintiff is claiming that this Court has jurisdiction and he's raising the issue of jurisdiction in this matter that he filed on February 26, 2002. It is the Petitioner's view that the government has claimed that 26 U.S.C. § 6330 (d) provides that judicial review of the IRS Appeals' Office determination may be appealed to the Tax Court, or if the Tax Court doesn't have jurisdiction over the underlying tax liability, to the District Court of the United States. The jurisdiction of the Tax Court is generally limited to the redetermination of the "alleged income, estate and gift taxes" under 26 U.S.C. § 6211 and 6213. Under 26 U.S.C. § 6703, the Tax Court doesn't have jurisdiction to hear any alleged "Civil penalties assessed" pursuant to 26 U.S.C. § 6703. The section the government claims gives them justification for the penalty is section 6702(a), but section b only allows them justification if it's in addition to another penalty ( emphasis added). In addition, section 6702 has no regulations found anywhere in the Code of Federal Regulations in the Internal Revenue Code (Title 26 United States Code).
Under 26 U.S.C. § 6001 and 6011 as shown in the Privacy and Paperwork Reduction Acts only direct the plaintiff to follow regulations as prescribed by the Secretary, or his Delegate. Since he was directed to follow the regulations that the Secretary has prescribed, he hasn't found any legislative implementing regulations for filing the alleged "frivolous return civil penalty". He denies that he knows what the United States of America is alleging in their opinion under that section. Petitioner has asked the government for repeated hearings both written and otherwise to meet and discuss with him, what the government considers to be frivolous. The Plaintiff has filed a total of three zero income taxes returns with two pages of attachments for the years 1996, 1997, and 1998. In the case, U.S Crop Insurance v. A.A. Merrill, 332 U.S. 380, the majority of the Supreme Court ruled that "anyone entering into an arrangement with the government takes the risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority". (Other Supreme Court cases are cited. They are used for this purpose as Plaintiffs [Exhibit 1-P] of the excerpts of the authority of government agents).
Since a constitutional question can only be addressed by the District Court, this court, alone, has jurisdiction to hear the case on that issue. Tax Court is a court of record and an independent agency pursuant to 26 U.S.C. § 7441. It was never given power to hear legal or constitutional issues of law. It seems quite clear that it would lack jurisdiction.
It was within the Tax Court's right to dismiss the case for Lack of Subject Matter Jurisdiction. However, this once again raises the question of how much time, energy, and money, must a pro-se litigant expend, litigating a jurisdictional question.
Plaintiff has no doubt that jurisdiction has to be heard in District Court since legal questions can only be litigated in that court. Tax Court lacks the jurisdiction to hear legal and/or constitutional questions of law. Tax Court can only hear factual and decide on the amount of the litigants may owe on their alleged "tax liabilities". This Court therefore is the proper jurisdiction to hear those kinds of cases.
Under section 6703(c)(2) it states that a determination of the liability for the alleged "frivolous return penalty" must be brought in a District Court. Plaintiff also agrees that jurisdiction over the IRS Appeals Office alleged determination of the petitioner alleged "frivolous return penalties" is in the District Court and not in Tax Court. See 26 U.S.C. § 6703 [Exhibit 2-P]
Based upon all of the factual arguments, the proper jurisdiction is in the United States District Court and never in the United States Tax Court on the alleged "frivolous civil penalty", pursuant to the entire section of 26 U.S.C. § 6702.
Wherefore, based on the preceding, and to once again remind this Honorable Court; in light of all the additional expense, time, and energy that has been expended by Plaintiff upon granting of Re-instatement Action, it is prayed that Discovery be permitted to proceed, without hesitation.