|FORMS: 7.12 RESPONSE TO IRS LETTER CLAIMING REQUEST FOR REFUND IS "FRIVOLOUS"-EXAMPLE #2|
|RIGHT click here for the Word 97 version of this document|
This letter is a responsive letter in the case that the IRS responds to your "Request for Refund" letter by stating something similar to the following:
“The position you have taken has no basis in law and represents a frivolous position. The tax laws are very clear and have been tested in the courts—including the Supreme Court of the United States. Claims such as yours have been considered and rejected repeatedly as frivolous and without merit by the federal courts.”
Be forewarned that the IRS will try to do everything in their power to scare and intimidate you not to leave the tax system or request refunds, including attempting to illegally assess $500 frivolous return penalties on people who file retroactive “Request For Refund” letter found in this book. They don’t have any legal authority to assess penalties for frivolous income tax returns, but they will try to bluff you into thinking you owe such penalties. You are encouraged to stand tall, challenge jurisdiction, and question authority by ending your participation in the tax system and sticking to your guns.
Department of the Treasury
Internal Revenue Service
Your letter of __________, 2000 (attached), identifies you as being Chief, Examination Branch. However, IRS Manual MT1100-34, para. 1132.74 defines the duties of the “Examination Branch,” in part, as follows:
“The Examination Branch administers an international examination
program involving the selection and examination of all types of Federal tax
returns filed with the Assistant Commissioner (International) …”
Since I am not involved in international commerce, and since I never filed tax returns with the Assistance Commissioner (International), and since I am not living abroad, nor engaged in making an offer and compromise, nor am I an IRS informant claiming a reward, I can find no provision in paragraph 1132.74 that would authorize you to contact me on any basis. This, of course, means that I do not even have to comment further on your ludicrous, unauthorized and extortionary letter, but I will do so anyway, because I cannot allow the fraud and deceit it contains to go un-addressed.
(NOTE: IF YOUR FRIVOLOUS LETTER CAME FROM A DIFFERENT BRANCH, DELETE THE FIRST THREE PARAGRAPHS AND START WITH THE NEXT PARAGRAPH!!!)
Your letter seeks to impose a $500 “frivolous” penalty on me, pursuant to Section 6702, for allegedly filing an amended tax return, a 1040X. However, Section 6702 makes no provision that a “frivolous” penalty can apply to amended returns. Indeed, the very criteria in that section for determining whether a return is “frivolous” cannot even apply to amended returns. For example, a return can only be “frivolous” within the meaning of Section 6702 if it:
(A) “does not contain information on which the substantial correctness of
the self-assessment may be judged,” or
(B) “contains information that on its face indicates that the self-
assessment is substantially incorrect.”
My 1040X contains no information upon which the “substantial correctness of the self-assessments may be judged,” nor does it contain information indicating whether the “self-assessment is substantially incorrect,” because my “self-assessment” has already been made and recorded on the assessment rolls of the government. It was based upon my original 199___ return, which was filed on or about ___________, 199___. It is obvious that the above criteria refer only to returns from which actual, original assessments will be made – and any attempt by the IRS to extend this wording to amended returns from which no original assessment will or can be made is simply arbitrary and capricious. No assessment of any kind will be made from my instant 1040X return. And if the IRS rejects my attempt to correct my original “self-assessment” and denies me the refund requested – as appears to be the case – then my original self-assessment will stand, and my only recourse is to sue for a refund in federal court. Therefore, my 1040X will have no impact on my self-assessment, which is already recorded on the assessment rolls of the government, and, therefore, provisions (A) and (B), as reproduced above, cannot apply to my 1040X return on any basis.
In addition, the conduct, as referred to above, must have been due to either:
(A) “a position which is frivolous,” or
(B) taken “to delay or impede the administration of Federal income tax laws.”
The reasons given on my 1040X as to why I am amending my previous return (i.e., my previous “self-assessment”) are that I:
1. reported as “income” sources of income, but Section 61 of the Code only
required me to report and pay taxes on “income” (i.e., “gains and profit”)
separated “FROM” those sources – but I erroneously paid taxes (and
“self-assessed” myself) directly ON those sources, and not on “gains and
profits” FROM those sources.
2. I erroneously paid a tax for which no statute made me “liable.”
If I am wrong in my assumption that no provision of the Internal Revenue Code makes me “liable” for income taxes (as for example, Code Sections 4401, 5005, and 5703 create “liabilities” for wagering, alcohol, and tobacco taxes), then please identify any such section for me. I note that your new “Mission Statement” says that the IRS is supposed to help taxpayers “understand and meet (their) tax responsibilities and by applying the tax law with integrity and fairness to all.” Well, you can start off by showing me the “tax law” that makes me “liable” for income taxes, since I cannot find it on my own.
In addition, I have also enclosed an excerpt from the Supreme Court decision FEDERAL CROP INSURANCE CORP. v. A.A. MERRILL, 332 U.S. 380. Note that the Court held in this decision 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, even though the agent himself may be
unaware of the limitations upon his authority” (emphasis added).
Note that the Supreme Court in this decision warns the public that those who pay attention to what federal employees say “takes the risk” that such employees may not be acting “within the bounds of (their) authority” and that such employees may even be “unaware of the limitations of (their) authority.”
Well, I am not PREPARED TO TAKE THAT “RISK.”
Therefore, I am demanding a meeting to see if you have the authority to determine whether anyone’s tax return is “frivolous,” in order to avoid my having to “take the risk” as described in the Supreme Court case cited above.
In addition, IR Code Sections 6001 and 6011 (as identified in the 1040 Privacy Act) notify me that I need only “comply with regulations.” Nothing in the Privacy Act Notice informs me that I have to “comply” with letters and/or “determinations” made by IRS agents.
Therefore, based on all of the above, I am requesting an office audit/meeting at which time you should have available:
1. The “text of any written determination and any background file
documents relating to your “determination” that my _________
amended returns were “frivolous” as provided in 26 USC 6110.
2. Since Sections 6001 and 6011 (as referred to above) only direct
me to comply with Treasury regulations, I will expect you to have
the Treasury regulation that imposes upon me a legal obligation
to treat seriously your frivolous “determination.”
3. Your Delegation Order from the Secretary of the Treasury
authorizing you to make “determinations” concerning what does
and does not constitute a “frivolous” amended return.
Without these documents, I will be unable to “ascertain” (pursuant to the Federal Crop decision cited above) whether the IRS agents who are claiming my 199___ tax return is frivolous “acted within the bounds of (their) authority.” I will be calling you to arrange a time and place for that meeting.
All rights reserved without prejudice, UCC 1-207