People of Cal. ex rel. Ervin v. District Director

• Decision Date: 14 September 2001
• Docket Number: No. CV-F-01-5825 REC.,CV-F-01-5825 REC.
• Court: U.S. District Court — Eastern District of California
• Parties: The PEOPLE OF CALIFORNIA, ex rel. Robert S. ERVIN, Citizen in Party, Petitioner, v. DISTRICT DIRECTOR, Modesto, California, Internal Revenue Service, in his individual capacity, and Does I-XX, Respondent.

Page 1040

170 F.Supp.2d 1040

The PEOPLE OF CALIFORNIA, ex rel. Robert S. ERVIN, Citizen in Party, Petitioner, v. DISTRICT DIRECTOR, Modesto, California, Internal Revenue Service, in his individual capacity, and Does I-XX, Respondent.

No. CV-F-01-5825 REC.

United States District Court, E.D. California.

September 14, 2001.

Robert S. Ervin, Modesto, Pro se.

G. Patrick Jennings, United States Department of Justice, Tax Division, Washington, DC, for Respondent.

ORDER SUBSTITUTING UNITED STATES AS PROPER PARTY RESPONDENT, GRANTING MOTION TO DISMISS, AND DIRECTING ENTRY OF JUDGMENT FOR RESPONDENTS

COYLE, District Judge.

On September 10, 2001, the court heard the United States' Motion to Dismiss. No appearance was made by or on behalf of petitioner, Robert S. Ervin.

On May 20, 2001, Robert S. Ervin filed a "Verified Petition for Writ of Mandamus or Writ of Certiorari, Prohibition or other Writ as the Court deems appropriate remedy [Code of Civil Procedure § 1085, 1086, 1102, 1103]" in the Stanislaus County Superior Court. Petitioner is described as "The people of California, ex rel Robert S. Ervin, Citizen in Party". Respondents are "District Director, Modesto, California, Internal Revenue Service, in his individual capacity, and Does I-XX". The Petition alleges in pertinent part:

5. Petitioner on several separate occasions, as evidenced by Exhibits contained herein, requested, pursuant to the Administrative Procedures Act, an `Impartial Adjudicatory Administrative Appeal Hearing for Formal Decision Regarding the Rights of the Parties, Merits of the Action, Taxpayer Status, Review of Jeopardy Procedures and Appeal Alleging Procedural Errors in the Filing of Notice of Tax Lien/Levy.' All such requests were ignored and thereby denied as a violation of Petitioner's Rights to Due Process of the Law.

6. The right of petitioner to be secure in his/her person, house, papers and effects against and [sic] unreasonable government seizure, is an unalienable right mandated in the 4th Amendment of the Bill of Rights to the Constitution of the United States, as well as the 1849 California Constitution ....

7. The duty of the respondent to adhere to unalienable rights of Petitioner is mandatory and non-discretionary. The Bill of Rights makes no exceptions for any Department or Agency of the Government, or for any individual working for them. The 4th and 5th Amendments were ... created to prohibit the arbitrary, unlawful attack by the Government on a Citizen's private property and to afford all Citizens the right to due process and must be afforded an opportunity for a fair and impartial hearing to render any defense he may have, prior to and not after the taking of their private property.

8. Petitioner has filed all proper claims and has adhered to all administrative remedies and requirements imposed by 26 U.S.C. § 6343, authority to release Lien and return property, 26 CFR § 301.6343-1.(b)(2). Request for return of property, Public Law 104-168 (July 30, 1996) 110 STAT. 1460, 501(b) [amending 26 U.S.C. § 6326], Federal Register, Vol. 56, No. 206, Thurs., Oct. 24, 1991, Administrative Appeal of Liens, 26 U.S.C. 6326, 26 CFR 301.6326-1(b)(2), Appeal Alleging Error in the Filing of Notice of Lien. As supported by Exhibits contained herein, such claims were properly and timely made. Many of these remedies were created by Congress July 30, 1996, in the Taxpayer's Bill of Rights II; however, new rights that are not enforceable are no rights at all.

9. The Respondent had 30 days to dispute Petitioner's Claim but has defaulted. Such matter therefore stands res judicata, in favor of Petitioner and Respondent has a ministerial and non-discretionary duty to Petitioner to remove all erroneous, liens and levies and return all earnings and bank accounts, unlawfully seized from Petitioner, if applicable.

10. The respondent has persistently ignored his/her congressionally mandated ministerial duties to Petitioner, placing the burden of enforcement on this court. It appears to be the position of respondent that he is above the law. Unless precedents are set and respondent is severely penalized for such unlawful abuses of the rights of Citizens, this unjust policy will continue, further corroding America's faith in the justice of government agencies. Such abuse of duty will continue clogging an already over crowded Court system.

11. Petitioner has complied or has attempted to comply with all Administrative Procedures and was ignored by Respondent and denied all such redress of grievances. All such remedies have, thereby, been exhausted.

Petitioner has complied with all terms of 26 U.S.C. 6326 and 26 C.F.R. 301.6326. 26 C.F.R. 301.6326-1(b)(2)(f) states; `... (f) Exclusive Administrative Remedy. The appeal established by section 6326 of the Internal Revenue Code shall be the exclusive administrative remedy with respect to the erroneous filing of Notice of Tax Lien.'

Further, Petitioner has made proper and timely protests against unlawful Proposed Assessments, Notices and written claims for the return of his/her unlawfully levied bank accounts and earnings. All such claims have been ignored. While the purpose of exhausting administrative remedies is to try to settle disputed matters with the agency prior to burdening the court system, the respondents having an obviously biased interest in retaining Petitioner's property, have used this provision to deny Petitioner due process of the law, on a technicality.

12. Petitioner has consistently demanded performance by Respondents, as evidenced by the exhibits attached hereto, and has consistently been ignored and, thereby, denied. At all times herein mentioned, respondent has been able to perform the ministerial responsibilities as stated herein, but continues to fail to exercise ministerial duty.

13. Petitioner has a beneficial interest in all money, and property rights unlawfully and erroneously levied and liened, and attempted to be levied and liened by said taxing agency, constituting his/her own private earnings, bank accounts and liens against any future properties which may be acquired by him in the future.

14. Petitioner has no plain, speedy, and adequate remedy in the ordinary course of law other than the relief sought in this petition as there is no other lawful method to compel the performance of a Government employee to perform his or her mandated ministerial duties, in the interest of justice.

15. If this petition is not granted, Petitioner shall suffer imminent, great and irreparable harm.

16. Whereas, the deliberate bad-faith refusal of the respondent to perform such ministerial duty owed to Plaintiff [sic] has continued for quite some time, during which Petitioner was deprived of money, property and/or lien or liens on his/her person. Failure to perform duty by Respondent has resulted in mental anguish, embarrassment, and defamation of character to employer, bank, creditors, and others, creating additional damages to Petitioner.

The Petition prays for the following relief:

1. That the court issue a peremptory writ in the first instance commanding respondent to:

a) Issue signed Release of Levy for the years 1990 and 1998 b) Issue signed Releases of Liens for the years 1990 and 1998;

c) Return property belonging to Petitioner, to which he has an immediate right to the legal, beneficial and possessory interest thereof, if applicable; and

d) Cease and desist all future collection activity against Petitioner until such a time as respondent can substantiate the claim with evidence and adhere to proper administrative procedure;

2. That the court, alternatively, first issue a writ commanding respondent(s) to perform the above ministerial duties or in the alternative, appear to show cause and provide evidence why they have no duty to do so, verifying that such information is true and correct, under the penalty of perjury of the State of California;

3. For damages as this Court deems just; and

4. For costs of this proceeding and for such other and further relief as the honorable court deems appropriate.

Although the Petition refers to attached exhibits, the only attachments are a memorandum of points and authorities and a declaration by Robert S. Ervin, wherein he avers in pertinent part:

3. I am domiciled in Stanislaus County, California, where I have occupied such status since approximately 1994.

4. I am engaged in a private, nongovernmental occupation of common right in Stanislaus County, California.

5. The Notice of Federal Tax Lien was recorded in Stanislaus County, California.

6. The County Recorder's office was served with copies of the erroneous Notice of Lien in May 1990 and April 1995, by mail.

7. I was served with copies the [sic] erroneous Notice of Lien in May 1990 and April 1995, by mail.

8. I am not subject to the `Public Salary Tax Act of 1939,' 53 Stat. Chap. 59, Title I § 1, or the `Buck Act,' 4 U.S.C., Chapter 4, § 101-113.

9. I am none of the persons upon whom the Department of the Treasury —Internal Revenue Service has the jurisdictional authority to levy, pursuant to 26 U.S.C. 6331(a) and C.F.R. 301.6331(a)(4)(I)(ii)(iii), and 20 Fed Proc. L.Ed. § 48.548. (See Points and authorities)

10. I hereby, attest that I am not, an officer, employee or elected official of the United States, or of the District of Columbia or of any agency or instrumentality of the United States or of the District of Columbia.

11. Municipality or a seaman, or the recipient of a pension as a retired State employee upon whom the Department of the Treasury-Internal Revenue Service has been delegated any the authority, by Congress, to lien/levy [sic].

12. I am `nonresident to,' and have `no minimum contacts' with, the United States, the U.S. Government or `in this State,' as such terms are defined in 26 USC 7701(a)(9)(10), the State Government Code, and the State Revenue and Taxation Code, relating to the personal or individual income taxes, defining State as, `the...