FORMS: 10.18 IRS FOIA REQUEST PRECEDING COLLECTION DUE PROCESS HEARING
RIGHT click here for the Word 97 version of this document

The FOIA/Privacy Act request is intended for the situation where you have received your last CP501 through CP-504 series of letters and want the following from the IRS:

1.        Evidence proving there was a lawful assessment.

2.        Evidence of the authority of the agent who made the assessment as an “enforcement” rather than an “administrative” agent.

3.        Contact information and real name of the agent in question so you can serve him with legal papers in the process of prosecuting him under 26 U.S.C. 7214..

4.        Delegation of authority orders showing his authority to assess you.

5.        A copy of the pocket commission of the agent.

6.        Evidence that you are a business because the CP-500 series notice has three digits and is classified in Chapter 9 of the IRS 6209 manual as a BMF correspondence rather than an individual correspondence.

7.        Evidence that you are a “person” liable for penalties under 26 CFR 301.6671-1.

If such evidence is unavailable, the letter asks for an abatement of penalties, interest, and taxes subject to collection.This letter is very effective and portions of it have been used by Eddie Kahn (http://www.eddiekahn.com) quite successfully to abate collection activity.  Eddie says that typical IRS agents will ask for an administrative Pocket Commision and conduct enforcement activity,, which is clearly illegal.He says the IRS destroys the pocket commission applications to disguise this fact and make discovery more difficult, but you can still ask for the serial number of the commission, which reveals whether it is enforcement (starts with “E”) or Administrative/nonenforcement (starts with “A”).

You can obtain the address of your nearest IRS disclosure office below:

http://www.irs.gov/prod/preview/foia/offices.html


<<YOUR ADDRESS>>

<<CITY>>,  <<STATE>><<ZIP>> (92129)

<<DATE>>

 

 

FREEDOM OF INFORMATION ACT REQUEST

IRS FOIA Request
_____________(office name)   Disclosure Office

<<ADDRESS>>
<<CITY>>, <<STATE>>  <<ZIP>>

Enclosure(s):

1.        CP-504 Notice for year ________

2.        CP-504 Notice for year ________

3.        CP-504 Notice for year ________

Dear Officer:

This is a request under the Freedom of Information Act, 5 USC 552, and the Privacy Act, 5 U.S.C. 552a or regulations thereunder. This is my firm promise to pay fees and costs for locating and duplicating the records requested below, ultimately determined in accordance with 26 CFR 601.702 (f).

If some of this request is exempt from release, please furnish me with those portions reasonably segregable. I am waiving personal inspection of the requested records.

I am attesting under penalty of perjury that I am a category E requester. PLEASE EXPEDITE THIS REQUEST.

This is request pertains to the years: 1998 through 2001

ITEMS TO PROVIDE:

1.  Original Penalty Assessment______(check here when assembled)

26 U.S.C. Section 6751 documents the requirements for the imposition of penalty assessments.  It says

TITLE 26 > Subtitle F > CHAPTER 68 > Subchapter C > Sec. 6751. 

Sec. 6751. - Procedural requirements 

(a) Computation of penalty included in notice

The Secretary shall include with each notice of penalty under this title information with respect to the name of the penalty, the section of this title under which the penalty is imposed, and a computation of the penalty. 

(b) Approval of assessment

(1) In general 

No penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination or such higher level official as the Secretary may designate

Please send to me:

1.        The original assessment certificate for the penalty assessments made under Enclosures (1) through (3) above, including the signature of the person making the assessment along with the date signed.  This would most likely be either an IRS form 4340 or form 23C.

2.        The complete full legal printed and legible name of the person(s) who signed the assessment(s) above (not their pseudonym), along with:

2.1.               Their work location (not mailing address, but work location where they may be served with legal papers).

2.2.               Their direct phone number.

2.3.               Their mailing address

2.  Original lien______(check here when assembled)

Please send me a record of any original Lien (not a Notice of Lien, form 668-Y) that is on file for __________________ for the tax years in question as they pertain to Enclosures (1) through (3).This lien, to be valid, must be signed by a judge or magistrate in a court of law.  The lien should be recorded under Treasury System of records IRS 26.009, as described in the Federal Register, Part II, Vol. 63, No. 242 December 17, 1998,.on page 69717.

3.  Original levy______(check here when assembled)

Please send me a record of any Levy (not a Notice of Levy, form 668-A(c )(DO) that is on file for Christopher M. Hansen for the tax years in question as they pertain to Enclosures (1) through (3).

4. Delegation Order of Assessment officer(s)______(check here when assembled)

Please provide a copy of the delegation order of the person(s) mentioned in Question (1) showing the authority of the agents in question to assess the penalties and or taxes in question and their authority to sign the assessment form(s) and/or certificates.

5. Pocket Commission of Assessment (enforcement) Officer(s)_____(check here when assembled)

Please provide the following information about the Pocket Commission of the person(s) indicated in Question (1) above who assessed penalties under Enclosures (1) through (3):

1.        A certified photocopy of the application for pocket commission of the agent(s) in question, including signature.

2.        A certified photocopy of the original pocket commission for the agent(s) in question.

3.        The original legal name appearing on the pocket commission for the agent(s) in question, rather than the pseudonym described in IRM [1.16.4] 3.7 Use of Pseudonyms on Pocket Commissions.

4.        The serial number on the Pocket Commission, which should begin with either “E” for enforcement or “A” for nonenforcement (administrative).

5.        Whether the commission is an enforcement or nonenforcement (administrative) commission.

6.        The real legal name (not the pseudonym) and contact information of the official authorizing the pocket commission, along with that person’s email address, mailing address, and phone number.

7.        Whether the pocket commission is red (administrative) or black (enforcement).

Should you have any questions about the applicability or requirement for Pocket Commissions, then please refer to the IRSwebsite at:

http://www.irs.gov/taxpros/display/0,,i1%3D5%26genericId%3D21267,00.html

6.Authority of nonenforcement pocket commissions to perform enforcement functions______(check here when assembled)

Please provide evidence of legal authority of nonenforcement/administrative officers to perform enforcement activities such as penalty assessment, collections, notice of levy, and CP-504 letters.The Administrative Procedures Act, 5 U.S.C. 556(d) places the burden of proof on the IRS as the moving party and not me to demonstrate its authority to assess such penalties:

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART I - THE AGENCIES GENERALLY

CHAPTER 5 - ADMINISTRATIVE PROCEDURE

SUBCHAPTER II - ADMINISTRATIVE PROCEDURE

Sec. 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision

(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. The agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.

If the IRS asserts that I am liable for payment of a penalty, even though there is no statute in the entire Subtitle A of the Internal Revenue Code making me liable for income taxes, then please provide evidence that I am the “person” liable for penalties as defined below:

[Code of Federal Regulations]

[Title 26, Volume 17, Parts 300 to 499]

[Revised as of April 1, 2000]

From the U.S. Government Printing Office via GPO Access

[CITE: 26CFR301.6671-1]

[Page 402]

TITLE 26--INTERNAL REVENUE

Additions to the Tax and Additional Amounts--Table of Contents

Sec. 301.6671-1 Rules for application of assessable penalties.

(b) Person defined. For purposes of subchapter B of chapter 68, the term ``person'' includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.

Since I am not an officer or employee of a corporation, then I cannot be the “person” who is subject to penalties under Subtitle F of the Internal Revenue Code.If you are going to try to play games using the definition of “includes” in a vain attempt to illegally expand your jurisdiction, then I ask you to respond to the treatment of the word “includes” found in question number 20 beginning of page CRS-56 of the rebutted version of the Congressional Research Service report 97-59A entitled “Frequently Asked Questions Concerning the Federal Income Tax”, available for free downloading at:

7.Records reflecting that I am a business rather than an individual______(check here when assembled)

Enclosures (1) through (3) include three digit notice codes.Here is what Chapter 9, Section .01 of the IRS 6209 manual says about these notice codes:

“Computer generated notices and letters of inquiry are mailed to taxpayers in connection with tax returns for BMF, IMF, and IRAF.  Computer paragraph (CP) numbers (3-digit number for BMF AND IRAF, 2-digit number for IMF) are located in the upper left corner of notices and letters.”

By way of explanation of the above, “BMF” is for the Business Master File and “IMF” is for Individual Master File.  Since the notice codes on Encl. (1) through 3 have three digits rather than two, then I am forced to conclude that these notices are incorrectly directed at a business rather than an individual.  I wish to notify you emphatically that I am NOT a business, but an individual and that your records must be in error because Enclosures (1) through (3) indicate BMF codes that do not apply to individuals or natural persons such as myself.

Please therefore send to me any evidence, records, or materials incorrectly showing that I am a business rather than an individual, and if you cannot, then please:

1.        Immediately abate all penalties and interest unlawfully and incorrectly assessed against me in this case and retract the Enclosures (1) through (3) above.

2.        Update my IRS record to reflect the fact that I am not a business, but an individual.

8.Request for Update to Records______(check here when assembled)

Please update my IRS records to reflect that I am not “U.S. citizen”, but a “nonresident alien” and a “U.S. national” as defined in 8 U.S.C. 1408 and 8 U.S.C. 1101(a)(21) through 8 U.S.C.. 1101(a)(22).Should you require additional evidence of this status, I would be happy to provide to you a copy of my recently filed expatriation document.

CONCLUSION:

 If you find this request for information defective in a serious enough way to prevent disclosure of the information requested, then please promptly (within 10 days) notify me of the deficiency and I will gladly and promptly correct it and resend my request.

I understand the penalties provided in 5 USC 552a(i) (3) for requesting or obtaining access to records under false pretenses.

Dated:

Respectfully,

________________________

<<YOUR NAME>>, Requester, <<YOUR SSN>>

All rights reserved without prejudice, UCC 1-207


NOTARY AND PROOF OF SERVICE

 

COUNTY OF _________________ (countyname)

STATE OF ____________________(statename)

SUBSCRIBED AND AFFIRMED:

On this __________day of _____________, ________, personally appeared, personally known to me, OR proved to me on the basis of satisfactory evidence to be the one whose name is subscribed to the within instrument.   I also certify that I:

         Am over 18 years of age

         Personally placed this correspondence in the U.S. mail on the date indicated.

         That I am not related to _______________ by blood, marriage, adoption, or employment, but serve as a “disinterested third party” (herein “Server”); and further,

         That I am in no way connected to, or involved in or with, the person and/or matter at issue in this instant action.

Witness my hand and official seal.

____________________________________

Signature of Notary

My Commission Expires: _________________