Petition for Writ of Certiorari — Dickerson v. United States

Supreme Court brief1992

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FILED

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[IN THE SUPREME COURT OF THE

UNITED STATES

Uctober Term, 199 1

JOSEPH CARL DICKERSON and

‘ MARY ELIZABETH DICKERSON,

PETITIONERS,

THE*UNITED STATES OF AMER

UNNAMED JOHN DOES,

RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

: Joseph Car! Dickerson

Mary Elizabeth Dickerson

Route 1, Box S97A

Hillsboro, Tn 37342

Pro se

QUESTIONS PRESENTED

1. Whether the lower Court erred

in granting the defendant its

motion for summary judgment and

dismissed plaintiffs action, when

the defendant failed to follow

congressionally mandated procedure

by not producing statutes which

are the Only required notices,

before, levying and collecting

plaintiffs property and by filing

liens on plaintiffs properties?

—

2. Whether the lower Court erred

in granting the defendant its

motion for summary judgment and

dismissed plaintiffs action,

without giving plaintiffs an

evidentiary hearing and/or trial?

3. Whether the lower Court erred

in granting the defendant its

motion for summary judgment and

dismissed plaintiffs action,

without completeing dis@overy

action?

4. Whether the lower Court erred

in granting the defendant its

motion for summary judgment and

dismissed plaintiffs action, when a

violation of the Fourth Amendment

to the United States Constitution

was violated?

TABLE OF CONTENTS

Page

Questions Presented............... i

Table of Authorities............. iv

Opinions Below........... eceececess 3

Co 5

Constitutional and

Statutory Provisions

ES 6

Statement of the Case............ 10

Reasons for Granting

a 21

a ee 54

Affidavit

(Certificate of Service)...... la

Exhibit A Certificate of

Release of Federal Tax Lien,

ks ee eee 4a,15

Appendix A Opinion of the Court

of Appeals reported in Dickersons

v. United States of America, Case

No. 91-5858,

SEMTA GEPOULL isc ewe ee 6 ee ee eee eens 5a

Appendix 8 Cpinion of the

Court of Appeals reported in

Dickersons_v. United States of

America, Rehearing Denied, Case No.

91-3056, Sixth

Appendix C Opinion of the

United States District Court for

the Eastern District of Tennessee,

Dickersons vv. United States of

America,

Caae NO. 4-SO-O1.. cceceesseece 3,iza

Appendix D Opinion of the Court

of Appeals reported in Williams v.

United States of America,

Case No. 89-5740, (1990)

(oeS 60S 68S 6 eee sev 45,53, 30a

iii

TABLE OF AUTHORITIES

Case Page

Anderson vy. United States

PES GRU S 4406 oo eae ek 24,25,51

Aqua Bar & Lounge, Inc. Vv. United

States Department of Treasury

939 F.2d 935, 939-940

(Ord Cir. 1076)....0. 30,34,51

Arford v. United States

934 F.2d 229 (9th Cir.

Pee OCCU ES oO «eh oo oo bs 36,51

Beebe v. Russe! |!

19 Howard 283, 60 U.S. 263,

iS L.ed. 668 (18657)...39,40,51

Bothke v. Flour

713 F.2d 1405 (9th Cir.

piss Le, EEOC OUETe 28,51

Cincinnati N.O. . +f,P7,8., Coe, Vv.

Kentucky (Kentucky Railroad Cases)

115 US 321, 6 S. Ct. 57

Ceeccccces eee e 29,9/,49,50,51

Clark et al v. Western Assur. Co.

of Toronto

January 4, 1892, Atlantic

Reporter, Vol. 23 at

PD BSG, ZORsccsscceves 44,51

Clements v. Berry,

52 US 398, 11 How. 398,

> Ra Se | —eryrerrres 43,52

i - Commonwealth Bank Vv. United

States

Bam Fae sar, Sth Cif.ccecsr: we.

Crompton & Knowles Loom Works v.

White

Oe PeOe BOCs ce ceccvcesvves 24,52

Elias v. Connett

908 F.2d 521, 527 (9th Cir.

ee ET ee Cece ecececce 36,52

Flora v. United States

S62 U.S. 145, (1980)...... 23,52

GSA v Benson

415 F2d 878 (9th Cir.

to eee CeCe eeeesesess 46,52

Hoover, Inc. Vv. McCullough

Industries, Inc.

351 F. Supp. 1024,

Se BO OMO Ses ces cseeccna 32,52

Jenson v. IRS

635 F2d 196 (9th Cir.

ee eee ee ee 28,29,52

Laing v. United States

423-U.S. 161, 96 S.ct. 473

CSU FMU be Ss bes eneecs 26,27,29,52

Long Vv. United States Internal

Revenue Service

339 F. Supp. 1266

DPCP EEEEER eee ccccceccecces 46

Meyersdale Fuel Co. Vv. United

States

44 F.2d 437, 70 Ct. Cl.

DTTP. 656656500000 24,52

Pollack v. Uited States

819 F.2d 144

iS URE Ps se ccecceces 34,52

Reese v. Scoggins

S06 F.2d 967 (Sth Cir.

DT SONOS 6 6600 600000 c 34,52

Riggs v. City of Albuquerque

Mae Fae SEZ, SSF... ccccces 46,53

Rorex v. Traynor

77a Pee Bee CIBBB)..ccccece 43,53

soar v. C.1.R.

614 F.2d at 1370....... 31,32,53

vii

Shapiro

424 U.S. at 617-619 n7,

96 S. Ct. at 1066-67,

Sinclair vs United States

SPO VB 195, 17B..cnccccce. 49,53

United States vy, John Hancock

Mutual Life Insurance Co.

364 U.S. 301, 81 s.Ct. 1,

> L.Ed.2d 1 (1960)....... 22,53

United States vy. Kelly

S39 F.2d 1199 (9th Cir.

phish LER CETTE TCT ET Oe 27,83

United States FR Associates

Commercial! Corp.

viii

160 F.2d 304, 307,

Bur Grats BOT) «ccs 9, 3

Williams cv. United States of

America

case No. 89-5740

‘Stn Cir. i1990)....-45,53,30a

Constitution, Statutes, and Rules

Regulations and others

Page

United States Constitution,

Fourth Amendment.......... 5,6,10,48

Statutes and United States Code

Title 2B, U.S.C. UBBOtil. .cccccace 5

Be Bemtwetem GEE. oc cccccecucuer 5

TECRO BB, Urb... BOREAL vcd dccccs 22.0

72 Statute 415, 90 Statute

2721 & 94 Statute 2369......... 7

Title 28, U.S.C. 1340

-9,7,8,10,33,34

Title 28, U.S.C. 2410

(eee eeees 9,6,7,10,22,30,32,33,34

63 Statute 105, 72 Statute

348, 74 Statute 201 &

OS SCOtute £867. vccccveccceeacne 6,7

Title 2B, U.S.C. BABB... cccece 5,8,10

28 U.S.C. 1940 ed.

Sec. 747 (R.S.Section

i PPE eerese Tee eTTerre errs es 8

etc! > Aiea ee eee 13,23,24

saa) we Pe A re 27

Taewem Bee WebcGc SIGs ccccee 5,10,43

eh: wo Pa Se SO | nm 27

eiat oe oe! oe | tk es 28,29

PEGE Bee Welolee GRBs co cc nce 28,29

got, 2 a SS ee ll re 35

Tae Bes Welbstee Beh cetcweeeescves 35

Title 26, U.S.C. 7426

(+> kbs ee 860 646686 6s 260-0, 10,20-00

Title 26, U.S.C. 7431

keene eseweeeee ee Bees 10,41, 82

96 Statute 645, 97 Statute

Tesh sk eee ee eek ee oe ee be 9,42

Title 26, U.S.C. 7433

102 Statute 3747,...../ 7 | 10,38

Title 26, U.S.c. ia a 38

Title 31, U.S.c. NOEs ae 6 he deo oes 38

Others

Federal Rules Of Civil Procedure

Rule DERE R Ean nw sidwig tavrer 20

Federal Rules Of Civil Procedure

ETD BEIGE goes cca... .Oeere wa 46

Internal Revenue Investigation

hearings report - Subcommittee of

the committee on Ways and Means

House of Representatives Eighty-

Third Congress First Session on

Administration of the Internal!

Revenue PEP OSS eH Nee cccw ce, . 11,12

Affidavit

Certificate of Affidavit......... la

INDEX TO EXHIBIT

Release of Federal Tax Lien,

xii

Form 668(Z)..- ee eee errr reses 4a,15

INDEX TO APPENDICES

Appendix A Opinion of the

Court of Appeals reported in

Dickersons v United States of

America,Case No. 91-5858, Sixth

Cowaemibsccccccecesecresenseseseeens 5a

Appendix B Opinion of the

Court of Appeals reported in

Dickersons v United States of

America, Rehearing Denied, Case No.

91-5858, Sixth Circuit..-++++ee> 10a

Appendix C Opinion of the

United States District Court For

The Eastern District Of Tennessee,

Dickersons vy United States of

America, Case No. 4-90-01, (1990)

Appendix D Opinion of the

Court of Appeals reported in

Williams Vv. United States of

America, Case No. 89-5740, (1990)

LAP e PST Tee ee ek 45,53,30a

xiii

— — —

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1991

JOSEPH CARL DICKERSON and

MARY ELIZABETH DICKERSON

PETITIONERS,

Vv.

THE UNITED STATES OF AMERICA

and UNNAMED JOHN DOES,

RESPONDENTS

PETITION FOR WRIT OF CERTIORARI!

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TO: THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

The petitioners, Joseph Carl

Dickerson _ and Mary Eiizabeth

Dickerson, respectfully pray; that

a writ of certiorari issue to

review the Per Curiam judgment of

the United States Court Of Appeals

for the Sixth Circuit entered on

February 27, 1992. Appellants then

petitioned the court for a

—

rehearing filed March 10, 1992 and

denied by Appeals Court on March

31, 1992. This petition for writ

of certiorari has been timely

filed.

OPINIONS BELOW

On February 27, 1992, the United

States Court of Appeals For The Sixth

Circuit entered its Per Curiam Opinion

affirming the District Court's judgment

upon the reasoning set out by that court

in its memorandum Opinion of May 20,

1991. All orders, rulings, judgments,

and other conduct of the district court

in its cause was also affirmed. The

District court's opinion granted the

defendant its summary judgment and

dismissed plaintiffs’ action. The

District Court’s opinion was that the

defendant had followed all the statutory

requirements for creating valid tax

liens, thus entitling them to summary

judgment on any claim by plaintiffs

under 28 U.S.C. Section 2410.

Therefore, there would be no

unauthorized collections and

unauthorized disclosures. A copy of the

per curiam opinion, which is not to be

published, is attached hereto as

Appendix A, a copy of the denial, for

petitioners rehearing, is attached

hereto as Appendix B, and a copy of the

judgment of the District Court is

attached hereto as Appendix C.

JURISDICTION

On February 27, 1992, the United

States Court of Appeals For The Sixth

Circuit entered judgment affirming the

District Court's decision in dismissing

the petitioners' civil action seeking

declaratory and statutory relief under

26 U.S.C. 6103, 7431, 7433, 7426 and

Quiet Title 26 U.S.C. 2410, 28 U.S.C.

1331, 1340, 2463, which are supported by

statutes, against The United States of

America and Unnamed John Does for

levying and collecting plaintiffs money

from their paycheck by *IRS Levy" and

filing liens on their properties without

first following congressionally mandated

procedures. Defendant, also, failed to

show any Uniform Commercial! Code Number,

showing their authority to file liens on

Petitioners property, in violation of

the 4th Amendment to the U.S.

Constitution and violating their rights.

B. Jurisdiction of this Court is

invoked under Title 28, United States

Code 1254 (1). (102 Stat. 662.)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment:

"The right of the people to be

secure in their persons, houses, papers,

and effects, against unreasonable search

and seizure.*

28 U.S.C. 2410:

"Actions affecting property on

which United States has a lien

(a) Under the conditions

prescribed in this section and section

1444 of this title for the protection of

the United States, the United States may

be named a party in any civil action or

suit in any district court, or in any

State court having jurisdiction of the

subject matter-

(1) to quiet title to, real

or personal property on which the United

States has or claims a mortgage or other

iien." (As amended 63 Stat. 105, 72

Stat. 348, 74 Stat.201 & 80 Stat. 1147,)

28 U.S.C. 1331:

"Federal Question

The district courts shall have

original jurisdiction of all civil

actions arising under the constitution,

laws, or treaties of the United States."

‘As amended 72 Stat. 415. 90 Stat. 2721,

& 94 Stat. 2369.)

28 U.S.C. 1340.

*Internal revenue; customs

duties

The district courts shall have

original jurisdiction of any civil

action arising under any Act of congress

providing for internal revenue, or

revenue from imports or tonnage except

matters within the jurisdiction of the

Court of International Trade. 94 Stat.

1742.

28 U.S.C. 2463:

"Property taken under revenue

law not repleviable

All property taken or detained

under any revenue law of the United

States shall not be repleviable, but

shall be deemed to be in the custody of

the law and subject only to the orders

and decrees of the courts of the United

States having jurisdiction thereof.”

(Based on title 28 U.S.C., 1940 ed.

Section 747 (R.S. Section 934.)

26 U.S.C. 7426:

"Civil actions by persons other

than taxpayers

(a) Actions permitted. -

(1) Wrongful levy.- If a

levy has been made on property or

property has been sold pursuant to a

levy, any person other than the person

against whom is assessed the tax out of

which such levy arose) who claims an

interest in or lien on such property

and that such property was wrongfully

levied upon may tring a civil action

against the United States in a district

court of the United Statee. Such action

may be brought without regard to whether

euch property has been surrendered to or

sold by the Secretary”.

26 U.S.C. 7431:

> "Civil damages for unauthorized

disclosure of returns and return

information

(al(1) If any officer or employee

of the United States knowingly, or by

reason of negligence, discloses any

return or return information with

respect toa taxpayer in violation of

any provision of section 6103, such

taxpayer may bring a civil action for

damages against the United States in a

district court of the United States".

(96 Stat. 645, 97 Stat. 379)

26 U.S.C. 7433:

J "Civil damages for certain

unauthorized collection actions

(a) If, in connection with any

collection of Federal tax with respect

to a taxpayer, any officer or employee

of the Internal Revenue Service

recklessly or intentionally disregards

any provision of this title, or any

regulation promulgated under this title,

such taxpayer may bring a civil action

for damages against the United States in

| .

& dietrict court of the United States”.

(102 Stat. 3747.)

STATEMENT OF THE CASE

Jurisdiction of the District Court

is invoked under 28 USC 2410, 133i,

> 1340, 2463; 26 USCA 6103, 7426, 7431

and 7433; USCA Const. Amend 4.

The Petitioners are informed and

believe, and alleged in their complaint

that the Internal Revenue Service did

seize their pay, file liens on their

Property without following

congressional ly mandated procedures.

» The Petitioners believed and al leged

that unauthorized disclosures were made

on the levies and liens without

authority to do go. The petitioners

believed and alleged that unauthorized

;

collections were made on their paychecks

without delegated authority to do so.

The seized properties were taken

without delegated authority.

Petitioners have shown in their answer

to the defendants motion for summary

judgment filed April 25, 1991, as Record

No. 55, that Internal Revenue Officers

authority Only exist over Alcohol,

Tobacco, and Firearms.

Petitioners had not filed income

tax returns for the year 1983, 1984 and

1965, prior to the seizure of their pay,

because the Petitioners had read the

Internal Revenue Investigation hearings

report - Subcommittee of the committee

on Ways and Means House of

Representatives EFighty-Third -ongress

First Session on Administration of the

Internal Revenue Laws where Mr. Avis,

said

"Your income tax is 100% voluntary

tax, and your liquor tax is 100 per cent

enforced tax."

Petitioners show this hearing as

(Exhibit 33), filed June 28, 1992, as

(Civil Record No. 65). Petitioners were

not invol ved in Alcohol, Tobacco, or

Firearms for those years or any other

years.

Since, the Dickersons did not

voluntarily assess themselves, they

believed that there would have to be

some statutory notice showing authority

for the Internal Revenue Service to

pana ENA Veit shee ily 22 Boe 8

assess, levy and collect and file liens

on their property. No such statutes

have been produced, Petitioners believe

if the Internal ices Service had sent

statutes, they could have shown the

Internal Revenue Service could not have

collected their Pay or filed liens on

their property. USCA Title 26 is not

"positive law". Defendant has failed to

show any statutory authority for their

actions in this instant case.

The Dickersons received forms and

letters from the Internal Revenue

Service, but, never received any such

notice that had the words statutory

notice of deficiency, statutory notice

of assessment and demand for payment or

Statutory notice to levy and collect.

The Petitioners have never received a

form Or letter with the words "notice

and demand".

On September 5, 1989, the Interna!

Revenue Service served a "Notice of

levy" Form 668-W on Carrier Corp.,

McMinnville, TN to levy on the

Petitioners Property which they were to

receive for their work which they had

done for Carrier, return information was

disclosed on the forms.

On September 18, 1989, the

Internal Revenue Service filed "Notice

Of Liens" Form 668(Y), at the Register

of Deeds, Court House, Manchester

Tennessee, which had return information

;

‘

disclosed on the forms.

A total of $21,111.86, was seized

from the Petitioners for the years 1983,

1984 and 1985. The notice of liens only

stated an amount of $13,826.19, the

defendant seized $7,285.67, more than

was stated on the notice of liens.

At the time Petitioners filed

their suit in district court, the

defendants had not seized the hota:

amount above. But, s nce that time the

seizure process’ has been completed on

Joseph Dickerson and Petitioners are

placing into this record the Certificate

of release of federal! tax lien, Form

668(2Z), (EXHIBIT A), which Petitioners

believe to be very important in this

case. As this Honorable Court will

recognize that according to Register of

Deeds Court recording dated March 18,

1391, the Internal Revenue Service says

that no Uniform Commercial} Code No. is

available to file liens on Petitioners

Property. Petitioners believe “that the

liens and levys were wrongfully placed

on the Petitioners Property and that

they should be awarded their requested

relief.

On January 5, 1990, the Dickerson

filed their complaint in the United

States District Court For The Eastern

District Of Tennessee. The defendant

filed their answer admitting their

levying, collecting and filing liens on

a _ - Hid AE

the Dickersons properties. Defendant

admitted disclosure of information and

stated they had followed procedures.

The Dickergone requeeted certain

documents and were refused those

documents by the defendant and the lower

Courts. Petitioners were refused access

to the same documents) which the

defendant had access to. Petitioners

believe they have a right to see the

statutes showing assessment, deficiency,

notice and demand, to levy and collect

and to file liens on their properties.

The defendant filed a motion for

summary Judgment supported by

memorandum, and exhibits, but, failed to

show any statutes to assess, any

deficiency, notice and demand, to levy

and collect and to file liens.

Plaintiffs answered defendants motion

and memorandum. Plaintiffs showed a

form called "notice and demand" Form

668-C, this was not sent to the

plaintiffs, but to someone else, we used

this to show what a Form "notice and

demand” looked like. We never received

anything with the words "notice and

demand" written on it. On May 20, 1991,

the District court affirmed the

defendants motion for summary judgment

and dismissed plaintiffs action. On

July 5, 1991, Plaintiffs filed a Notice

of Appeal with the Sixth Circuit and the

Sixth Circuit on February 27, 1992,

affirmed the lower Court's decision.

Petitioners filed for a rehearing on

March 10, 1992, and was denied a

rehearing on March 31, 1992.

Petitioners believe that the income tax

is voluntary and believe a statute would

have to be produced showing assessment,

deficiency, notice and demand payment,

notice to levy and collect and file

liens on their Property, before, any of

their property can be legally or

lawfully detained. No Judgment by Court

or jury and no distraint Warrant or

notice of Ifien was served with the

notice of levy before the seizing of the

Dickersons property.

Petitioners are native born

Tennesseans and work in Tennessee.

The Petitioners have sustained

grave injuries and believe that their

property was taken without authority.

Petitioners argued in their brief

to the Court of Appeals for the Sixth

Circuit that statutes had ‘not been

produced. That statutes are the only

required notices to be given.

Petitioners should have been given the

Opportunity to prove their case by

discovery pursuant to F.R.C.P. Rule 34

tc produce documents that are in the

possession of the defendants.

The Department of Justice Attorney

for the defendant did not show any

statutory notice which was the basis for

Petitioners' claim. The Petitioners

alleged no statutory notices were

produced and no notice and demand were

produced before the seizing of their

properties and substantial violation of

rights.

REASONS FOR GRANTING THE WRIT

NO STATUTES AND NO DELEGATIONS

ORDERS HAVE JEEN PRODUCED

SHOWING: ANY AUTHORITY TO

ASSESS, ANY DEFICIENCY, NOTICE

AND DEMAND, TO LEVY AND COLLECT

AND TO FILE LIENS. WE BELIEVE

THERE TO BE NEGLIGENCE AND

RECKLESSNESS IN THIS CASE, WHICH

CAUSED DEPRIVATION OF PROPERTY

AND INJURY TO THE FAMILY.

Certiorari should be granted for

two reasons: This Petition presents an

issue resolved by implication by this

Court but not specifically and

unequivocally decided by this Court; and

‘

ia RPS. ee iwi

the Opinion below conflicts, by

implication with Previous decisions of

this Court and with the decisions of

other Circuits.

The Supreme Court has held that 28

USC 2410 igs &@ waiver of sovereign

immunity by the United States for those

situations which it covers. United

States v. John Hancock Mutua! Life

Insurance Co., 364 U.S. 301, 61 S. Ct.

1, S&S L.Ed.2d 31 (1960). Section 2410 of

the Judicial Code reads in part:

"The United States may be named a

party in and civil action or suit in any

court ... to quiet title to ... real or

personal Property on which the United

States has or claims &@ mortgage or other

lien.*

The only question, then, is whether it

covers a taxpayer's suit for improper

procedure.

Petitioners have filed a Quiet

Title action to remove the clouded titie

on their property and requested

statutory and declaratory relief. Thies

Court has implicitly stated:

"That this country's tncome tas

system is based on voluntary se! f-

assessment, rather than distraint’”.

Flora v. United States, 362 U.S. 145,

(1960).

On the preface of Titie 26 USCA it

states the following:

"Inasmuch as many of the genera! -

and permanent laws which are required to

be incorporated in this Code are

inconsistent, redundant, and obsolete,

the Office of the Law Revision Counse!

is engaged in a comprehensive project of

revising and enacting the Code into iaw,

title by title. Since 1947, bilis have

been enacted to revise, codify and enact

into law Titles 3,3,4,5,8,9,316,33,14,

16,23,28,32,35,37,38,39, and 44. In

addition, bills relating to other titles

are also being prepared for

introduction. When this work is

completed all the titles of the Code

will be legal evidence of the genera!

and permanent law and recourse to the

numerous volumes of the Statutes at

Large for this purpose will be

unnecessary”.

As this Honorable Court can see, Title

26, has not been enacted into "positive

law". It is Petitioners belief that

statutes would have to be produced in

this instant case showing defendants

authority to levy and collect

Petitioners property.

The Court in Anderson _ v. United

States, 15 F. Supp. 225, citing

Meyersdale Fue! Co. v. United States,,

44 F.2d 437, 70 Ct.Ci. 765, 783 and

Crompton & Knowles Loom Works vv. White

(C.C.A.) 65 F.2d 132, stated:

"The assessment contemplated by

and referred to in the Statute is the

assessment by the Commissioner of the

[ax”™ . (Emphasis added. )

Also,

This Court in Cincinnati, N.O. &

tel. m. (€o. Vv. Kentucky (Kentucky

Railroad Tax Cases) 115 us o2i1, 6 8.:Ct.

57, stated:

"Notice by statute is the only

notice given or required for the levying

and collecting the Public revenues".

(Emphasis added. )

Petitioners believe, statutes

would have to be produced by the

defendants, before any property could be

taken or any liens filed On their

Property, ‘since Petitioners had not

voluntarily filed returns and the

defendant failed to execute returns for

them.

In Laing vy. United States, 423

U.S. 161, 96 S.Ct. 473 (1976), this

Court stated:

"Deficiency does not arise

until tax is actually due".

(Emphasis added, )

Defendants have not Produced any statute

showing the Dickersons owe any tax. The

IRS cannot use deficiency procedures

when a return, voluntary or involuntary,

has not been duly executed, certified

and filed. Without such return, a

deficiency does not, cannot, exist.

"The IRS is required to follow certain

Procedures in assessing the liability of

& taxpayer before it can bring a civil

suit to enforce a collection of the tax

AW eat Neh 2 Ea Reet

ABI ay RR. AS big

due, 26 USC 6020(b), 6201; 26 CFR

301.6020-1, 301.6201-1 United States v.

Kelly, 539 F.2d 1199 (9th Cir. 1976).

Petitioners had not filed "income tax

returns" for those years and the

defendants have also admitted in their

answer to petitioners interrogatories

that they did not execute returns for

the Dickersons' for those years in

question. Since, the Dickersons had

not voluntarily assessed themselves,

and the defendants has shown no statutes

showing any assessment and the

defendants have not executed any valid

returns for the Dickersons, the

Dickersons believe according to Laing v,

United States, csupra, that no tax is

— ng,

actually due from the Dickersons.

For the condition precedent of

liability to be met, there must be a

lawful assessment, either a voluntary

one by the taxpayer or one procedurally

proper by the IRS. Bothke v. Flour, 713

F.2d 1405 (9th Cir. 1983). |

By its own language, the

exemptions thereto, e.g., 6212(a) and

62i3(a), and 7426(a) and the language of

62i3(a), the Anti-Injunction Act does

not apply to a taxpayer's suit to enjoin

a levy imposed when the IRS violates

congressiona! ly-mandated procedures.

The Ninth Circuit in the case of Jensen

v. IRS, 835 F.2d 196 (8th Cir. 1987)

said:

"Once a taxpayer satisfies one of

the statutory exceptions to the Act, he

is no longer Jurisdictionally barred

from seeking an injunction. See

Perlowin v. Sassi, 711 F.2d 910, 911

(9th Cir. 1983). Here, the IRS' failure

to comply with the notice provisions of

26 U.S.C. 6212(a) and 6213(a) before

levying on Jenson'e wages constitutes

an exemption to the Act. Section

6213(a) expressly provides that a levy

may be enjoined ‘notwithstanding the

provisions of section 7421i(a).' The

déstrict court had jurisdiction to hear

Jensen's suit. See Laing v. United

States, 423 U.S. 161, 164 n. 27 (1975);

Perlowin, 711 #.2d at 911."

Plaintiffs were clearly entitled toa

valid section 6212 statutory notice of

deficiency and did not get it.

Therefore, the Anti-Injunction Act is no

barrfer to their suit.

Courts which have characterized

suits against a lien or levy, like the

present one, as a quiet titie action

* ~

‘

ae es ea

have also seen no barrier to them in the

Anti-Injunction Act. A quiet title

action simply is not a suit to restrain

the assessment or collection of tax.

Otherwise, section 2410, which was

enacted well after the original Anti-

Injunction Act, would be impossible to

reconcile with section 7421. Aqua, 539

F.2d at 940; Coson, 286 F.2d at 468-469.

The Cosson Court said:

"We agree with the holding of the

trial court that the prohibition against

suits to restrain collection or

assessment of taxes has no bearing ypon

this case which is one for a wholly

different purpose. We think it plain

that the only type of relief needed

here is a decree holding the tax lien a

cloud on plaintiff's title and canceling

it. There is no need for any injunctive

relief. We hold that the court below

had jurisdiction.* Coson, 286 F.2d at

459.

1 aay ata

bee et AB Oe hed bie

It should be noted that the Coson Court

did not rule out injunctive relief. See

Coson, 286 F.2d 459 n. Q.

The Ninth Circuit recently

addressed a statutory notice of

deficiency that had been issued in

violation of section 6212(a). ° The IRS

had violated congressional! 1 y-mandated

procedures by failing to determine that

a deficiency existed before issuing a

notice of deficiency. Scar _ v. C.1.R.,

614 £.2d 1363 (9th Cir. 1987). "it is

not the existence of a deficiency but

the Cammissioner‘s determination of a

deficiency that provides a predicate for

Tax Court jurisdiction." Scar, 614 F.2d

at 1369 on. io. "Jurisdiction is at

Dues

PPR LS rE Settee tetas

Ne forse

issue here. Failure to comply with

statutory requirements renders the

deficiency notice nul! and void ae ah hd

Scar,, 814 F.2d at 1370. No Statute has

been produced in Petitioners case.

The Tax Court has jurisdiction

only when the commissioner issues 3

valid statutory deficiency notice, and

the taxpayer files a timely petition for

redetermination. Scar, 614 F.2d at 1366.

"A valid petition is the basis of the

Tax court's Jurisdiction. To be valid,

a petition must be filed from a valid

statutory notice.* Scar, 614 F.2d at

1366.

- “The Ninth Circuit has already

established that a section 2410 suit is

Sd ta

* — Nematoda.

= ee ans

an express waiver of sovereign immunity,

when congressionally-mandated procedures

are” violated, in the case of United

States v. Coson, 286 F.2d 453 (9th Cir.

1961). The Coson Court stated:

"e¢ wil] be noted that out

decision here is based upon our holding

that the Government's lien was

irregular, insufficient and valueless.

from a procedura! standpoint for failure

to serve the statutory notice and

demand in connection therewith and for

failure to comply with required

procedures.* Coson, 286 F.2d at 463.

(Emphasis added.)

The Colson Court also established 28 USC

1340 as giving district courts original

Jurisdiction of a civil action where the

issue involves the validity of the

federal tax lien. The combination of

sections 1340 and 2410, 28 USC, have

been cited by numerous federal courts~to~

firmly establish that an unequivocable

Waiver of S0vereign immunity exists

Pursuant to section 2410 and subject

matter Jurisdiction has been granted

"Pursuant to section 1340, when the

taxpayer Questions Only the validity of

the Procedures used to enfdrce a tax

lien or levy and not the validity of the

tax assessment itself. See_ United

States y, Coson,, Supra; Aqua Bar 4

Lounge, Inc. Vv. United States De artment

-Ounge, ——=——==Stes Vepartment

of Treasury, 539 F.2d 935, 939-940 (3rd

Cir. 1976); Reese Vv. Scoggins, 506 F.2d

-967 (Sth Cir, 1975); Pollack v. United

States, 819 F.2d 144 (6th Cir. 1987),

in addition, the Supreme Court has

extended the exception in the Anti-

a. a ee a i ea = . . q —

Injunction Act to cases where the levy

was made without the section 6303(a)

notice of assessment and demand for tax

required by section 6331. In Shapiro,

the IRS had made a jeopardy assessment

and levy which the taxpayer alleged had

been issued without notice and demand

for tax. The Court, stated that

compliance with the notice and demand

procedure was necessary if the Anti-

Injunction Act were to apply.

Otherwise, section 6213(a) would permit |

suit. Shapiro, 424 U.S. at 617-619 n.7,

96 S.Ct. at 1066-67, 1068 n. 7. Accord,

United States v. Associates Commercial!

Corp., 721 F.2d 1094, 1098, 1100 (7th

Cir. 1983) (failure to provide

Ftatutorily required notice bars

collection by distraint or by civil

proceeding.

Title 26 USC Section 7426 (a)(1)

provides:

"If a levy has been made on

Property or property has been sold

pursuant toa levy, any person (other

than the person against whom is assessed

the tax out of which such levy arose)

who claims an interest in or lien on

such property and that such property was

wrongfully levied upon may bring a civil

action against the United States ina

district court of the United States. « «

This section does apply when the

Petitioners’ are only challenging the

procedural aspects of tax liens, and not

the merits of the underlying tax

assessment. See, Arford v. United

States, 034 F.2d 229 (8th Cir. i991),

citing Elfas v. Connett, 808 F.2d 521,

527 (9th Cir. 1990); United Stsetee v.

Coson, 286 F.2d 453, 456 (Sth Cir.

1961).

This Court in Cincinnati Railroad

Cases supra, stated that:

"Notice by statute is the only

notice given or required for the

levying and collecting the public

revenues". Cincinnati N.O. & T.P.R. Co.

v._ Kentucky (Kentucky Railroad Cases)

115 US 321, 6 S. Ct. 57. (Emphasis

added.)

Title 26 USC 7433(a) provides:

“If, in connection with any

collection of Federal Tax with respect

to a taxpayer, any officer or employee

of the Internal Re venue Service

recklessly or intentionally disregards

any provisions of (the Internal Revenue

Code), such taxpayer may bring a civil!

action for damages against the United

States ins district court of the United

States".

(b) Damages. In any action brought

under subsection

(a), upon a finding of liability

on the part of the defendant, the

2 eee

o— ee

ome + ams wee me

defendant shal | be liable to the

plaintiff in an amount equal to the

lesser of $100,000 or the gum of--

(1) actual, direct economic damages

sustained by the Plaintiff as a

proximate result of the reckless or

intentional actions of the officer or

employee, and

(2) the costs of the action.

pursuant to this section. shal! be

payable out of funds appropriated

under section 1304 of Title 31, United

States Code.

(d) A judgment for damages sha! !

not be awarded #*x

unless the court determines that

the plaintiff has exhausted the

administrative remedies available to

such Plaintiff within the Interna!

Revenue Service". (102 Stat. 3747.)

Petitioners have shown in their

statement of the case that Title 26

Section 7608, shows the Interna! Revenue

Service has only authority over Alcohol,

Tobacco and Firearms. Therefore, no

such authority exist and they have shown

statute giving any authority in this

instant case.

The Court in United States v.

O'Dell, 160 F.2d 304, 307, stated:

"Levy is not effected by mere

notice”.

The Court also referred to other cases

and said that:

"The method followed in the

cases is that of issuing

warrants of distraint, making

the bank a party, and serving

with the notice of levy copy

of the warrants of distraint

and notice of lien". Citing

Cf. Commonwealth Bank v.

United States, 115 F.2d 327.

The Court in Hoover, Inc. Vv.

McCullough Industries, Inc. 351

Supp. 1024, 1030, citing the Supreme

Court in Beebe vy. Russell, 19 Howard

283, 60 -U.S. 283, 15 L.Ed. 668 (igS7},

which held:

"that a decree is final only

when it "finally decides and disposes of

the whole merits of the cause and

reserves no further question or

directions for the future judgment of

the court. ..."* Id. at 363.

And, the Court goes on to say that

"inasmuch as the judgment was not fina!

until October aa% 1965, a levy

attempted by the Government upon an

alleged indebtedness previous to the

date of the _ final! judgment makes’ the

notice of levy invalid".

Defendants in the Dickersons case

failed to get a final judgment, failed

to issue a warrant of distraint and

failed to serve a notice of tax lien

with the notice of levy, which according

to the Supreme Court would automatic

make the notice of levy invalid

according to the cases just cited.

The Petitioners did have a claim |

under 26 U.S.C. Section 7431, since the

defendant made unauthorized disclosures.

These claims are correct and since

proper procedures were not’ followed the

disclosures were not authorized. 26

USCA Section 7431la) states:

“If any officer or employee of the

united states knowingly or by reason of

negligence, discloses any return or

return information with respect to a

taxpayer may bring a civii action for

damages against the United States in a

district court of the United States.*

The disclosures were made on Form

666(Y), notice of lien and Form 668-W,

notice of levy. But, no return was ever

executed by Petitioners or the

defendant. .The information was gathered

from a Form W-2 and ~Form 1099, from

Carrier Corporation and from

unemployment compensation. This

disclosed information concerned the

Dickersons. 26 USCA Section 7431(c)

provides:

brought under subsection

(a), upon finding of liability on

the part of the defendant, the

defendant shall be liable to the

plaintiff in an amount equal to the sum

(1) the greater of __

(A) $1,000 for each act of

unauthorized disclosure of a return or

return information with respect to which

such defendant is found Ifiable, or

(B) the sum of __

(i) the actual damages

sustained by the plaintiff as a result

of such unauthorized disclosure, plus

(11) in the case of a will fu!

disclosure or a disclosure which is the

result of gross negligence punitive

damages, plus

(2) the costs of the action

(_96 Stat. 645, 97 Stat. 379.)

The Dickereone éutfered PEréeonal

embarrassment becauge of the defendante

action. The defendant had been

Previously notified that Procedures had

not been fol lowed and that ~2 Possible

disclosure suit would be brought i¢ any

levy or lien action occured. The Court

Of Appeals 2d Cir. has said

"We conclude that a disclosure jn

Pursuance of an Unlawful levy Violates

the confidentiality requirements of

section 6103(a) and is not authorized

under section 6103(k)d 16)", Rorex vy,

Traynor, 771 F2d 383 (1985).

Also, this Honorable Court has also

ruled that

"An execution can be of no

validity which has no judgment to

Support it. Clements y. Berry, 52 us

398, 11 How. 398, 13 L.Ed. 745,

The petitionere have alleged and the

defendant has admitted in their answers

to petitioners interrogatories that no

judgment has ever been decided in this

instant case, before, the seizing of

petitioners property.

The Opinion of the Sixth Circuit

Court of Appealé was a Per Curiam

Opinion. Petitioners found a State

Supreme Court case from the Pennsylvania

area, Clarke et al. v. Western Assur.

Co. of Toronto, Jan. 4. 1892, Atlantic

Reporter, Vol. 23 at page 248, 249,

which the Court said in that case:

"it fe true thie ite criticized

as only a per curiam opinion, but why:

it should have iesse weight for that -

reason ie not clear*”. (Emphacie

added.)

A — -- -

Petitioners request this

Honorable Court to look further at their

case, since, the Opinion of the Sixth

Circuit Court of Appeals in their case

was a Per Curiam Opinion which according

to the case Supra, would have less

weight.

Petitioners are attaching an

Order from the Sixth Circuit Court of

Appeals, concerning David L. Williams

v. United State of America, Case No. 89-

$740, filed April 17, 1990. This case

shows Procedural defects in a sipilar

case. Petitioners Dickerson, are

Challenging the fact that no Statutes

were produced in their case. Petitioners

have shown facts in their complaint,

amended complaint, their request for

Internal Revenue Manuals and their

response to defendants’ motion for

summary judgment. GSA _v. Benson, 415

F.2d 878 (Sth Cir. 1969), this Court

said,

"As to the manual and code books,

then, a question of fact has clearly

been presented, and a motion to dismiss

under Civ. R. 12(b) cannot be granted."

GSA_v. Benson, supra was cited in Long

Vv. United States Internal Revenue

Service 339 Supp. 1266 (1971). (Emphasis

added.)

The opinion of the 10th Circuit in

the 1990 case of Riggs v. City of

Albuquerque 916 F2d 852, 857, where the

Circuit said

"Dismissal prior to discovery

would be inequitqable under these facts

because plaintiffs have alleged a

direct harm caused by defendants’

actions. Their suit should be heard

unless, after they have had an

opportunity to develop the facts, they

cannot prove any set of facts that would

supply a basis for the plaintiffs’

allegations, there will be time enough

later for the court to consider whether

santione are warranted.* (Emphasis

added.)

Petitioners were not given the discovery

which they requested - through

interrogatories, they believe they could

have proven that the defendant did not

follow congressional ly mandated

procedures. Petitioners believe the

lower Courts erred by failing to give

the discovery requested which the Court

cited above, stated that a request for

manuals are facts. Petitioners believe

by the ‘Courts decisions above,

defendants motion for GSurmary judgment

should not have been granted.

Petitioners believe the lower

Court should not have dismissed their

action, since they have shown facts.

The facts are no statutes have been

shown and a request for delegation

orders and manuals have been requested

by discovery.

Defendants have failed to show

their authority under the Uniform

Commercial Code, to file liens on

—_

Petitioners property. Petitioners

believe this constitutes an unauthorized

collection action.

In discussing the Fourth Amendment

to the United States Constitution, this

Honorable Court said

"It has always been recognized in

this country, and is well to remember,

that few if any of the of the people

are of greater importance to their

happiness and safety than the right to

be exempt from all unauthorized,

arbitrary or unreasonable inquiries and

disclosures in respect of their personal!

and private affairs." (Sinclair vs

United States, 279 US 135, 178.

(Emphasis added.)

The Petitioners are people and are

not a corporation and we believe we

have aright to our privacy and our

property, where corporations may not.

Since, Petitioners had not voluntarily

filed returns. Petitioners, believe

defendant had to show statutory

authority to levy and collect, See

Cincinnati v. Kentucky Railroad cases

supra. Petitioners also, believe that

if statutes had been produced they could

have proved that no legal or lawful levy

or lien could exist and this case would

not existed.

Defendant failed to show any

Uniform Commercial! Code No., which would

give them authority to file any lien on

Petitioners property. Therefore,

Petitioners believe the defendant has

failed to show any authority to levy and

collect their property. Also, see

Cincinnati Railroad Case above, where

this Honorable Court said, Statutes are

the only notices required to be sent.

Petitioners believe this Court

should grant certiorari here based upon

decisions of the Supreme Court, other

Circuit Courts and State Courts

Gecisions and even the Sixth Circuit

Courts Gecisions, which have ruled

differently in this instant case. See

—_—_—

these following cases which have ruled

differently, Anderson v.United States,

iS F. Supp. 225, (1936); Aqua Bar &

Lounge, Inc. v. United States Department

of Treasury, 539 F.2d 935-9339-40 (3rd

Cir. 1976); Arford v. United States 934

F.2d 229 (9th Cir. 1991); Beebe v.

Russell 19 Howard 283, 60 US 263, 15

L.Ed. 668; Bothe v. Flour 713 F.2d 1405

(Sth Cir. 1983); Cincinnati N.O. &

Rares Co. Vv. Kentucky (Kentucky

Railroad Cases 115 US 321, 6 S.Ct. 57;

Clark et al Vv. Western Assur. Co of

Toronto January 4, 1892, Atlantic

Reporter, Vol. 23 at page 248, 249;

Clements v. Berry, 52 US 398, 11 How.

2796, 13 L.Bd. 745; *% Commonwealth

Bank v. United States 115 F.2d 327, 6th

Cif. t Crompton & Knowles Loom Works Vv.

White 85 F.2d 132; Elias v. Connett 908

F2d 521, 527 (9th Cir. 1990); Flora Vv.

United States 362 U.S. 145, (1980); GSA

v Benson 415 F2d 878 (Sth Cir. 1969);

Hoover, inc. ¥. McCullough Industries,

nc 351 F. Supp. 1024, 1030 (1972);

Jenson v. IRS 835 F2d 196 (9th Cir.

1987); Laing v United States 423 US i161,

96 S.Ct. 473 (1976); Meyersdale Fuel Co.

v. United States 44 F2d 437, 70 Ct. Cl.

765 783; Pollack v. United States 619

F2d 144 (6th Cir. 1987); Reese v.

Scoggins 506 F2d 967 (Sth Cir. 1975);

Riggs v. City of Albuguerque 916 F2d

652, 657; Rorex vy. Traynor 771 F2d 383

(1965); Scar v C.1.R 814 F2d 1370;

Shapiro 424 US at 617-619 nef, BB 8.62.

at 1066-67, 1066 n.7; Sinclair vs United

States 279 US 135, 178; United States v.

John Hancock Mutual Life Insurance Co.

364 US 301, 61 S.Ct. 1, 5 L.Ed2d 1

(1960); United States vy. Kelly 539 F2d

1199 (Sth Cir. 1976); United States vy.

Coson 286 F2d at 453, 468-469 (Sth

GCir.ds United States Vv. Associates

Commercial] Corp 721 F.2d 1094, 1098 (7th

Cir. 1963); United States v. O'Dell! 160

F.2d 304, 307 (6th Cir. 1947); Williams

v United States of America Case No. 69-

5740 (6th Cir. 1990).

CONCLUSION

For the reasons set forth above, a

writ of certiorari should issue to

review the judgment and Opinion of the

Court of Appeals in this matter. lf

this Court elects not to address’ the

issues presented in this writ at the

present time, it is requested that the

writ issue and that the matter be

remanded to the Court of Appeals for

redetermination in light of this Court's

opinion in the above cited cases.

DATED: June 17h 1992.

Respectful ly submitted,

JOSEPH CARL DICKERSON

Pro se

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4a EXHIBIT A

I ee

Cen MNT oy 6 He

NOT RECOMMENDED

FOR PUBLICATION

No. 91-5858

FILED

FES 2? i992

LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOSEPH CARL DICKERSON &

MARY ELIZABETH DICKERSON,

Plaintiffs-Appellants,

UNITED STATES OF AMERICA,

)

De fendant-—Appel lee.

NOT RECOMMENDED FOR FULL TEXT

PUBLICATION

Sixth Circuit Rule 24 limits

citation to specific situations.

Please see Rule 24 before citing in

a proceeding in a ocourt in the

Sixth Circuit. If cited, a copy

must be served on other parties and

the Court.

This notice is to be prominently

displayed if this decision is

reproduced.

APPENDIX A

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DISTRICT OF TENNESSEE.

BEFORE: GUY, NORRIS, and

BATCHELDER, Circuit Judges.

PER CURIAM. Plaintiffs,

Joseph Carl Dickerson and Mary

Elizabeth Dickerson, appeal from

various orders of the district

court, including the one which

granted summary judgment for

defendant and dismissed plaintiffs’

action.

Having carefully considered

the record on appeal and the briefs

of the parties, we conclude that

the district court did not err in

granting summary judgment to

defendant. Furthermore, the other

issues raised by plaintiffs are

totally without merit.

As the reasons why judgment

should be entered for defendant

have been articulated § by the

district court, the issuance of a

written opinion by this court would

be duplicative and serve no useful

purpose. Accordingly, the judgment

of the district court is affirmed

upon the reasoning set out by that

court in its memorandum opinion of

i991. All orders,

rulings, judgments, and other

conduct of the district court in

this cause are affirmed.

We come now to the request of

defendant that damages be awarded

as the result of its having been

required to defendant a frivolous

appeal. The court determines that

the appeal is frivolous and,

pursuant to Fed. R. App. P. 38,

awards damages to defendant in the

amount of $500 together with single

costs.

ISSUED AS MANDATE: 4/8/92

COSTS: $529.12

A TRUE COPY

Attest:

LEONARD GREEN, CLERK

By Diane Schnur

Deputy Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(stamped)

Case No: 91-5858

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED MAR 31 1992

LEONARD GREEN, Clerk

ORDER

JOSEPH CARL DICKERSON;

MARY ELIZABETH DICKERSON

Plaintiffs - Appellants

Vv.

UNITED STATES OF AMERICA

Defendant - Appellee

10a

APPENDIX B

BEFORE: GUY, NORRIS and BATCHELDER,

Circuit Judges.

Upon consideration of the

petition for rehearing filed by the

pro se appellants’,

It is ORDERED that the

petition for rehearing be, and it

hereby is, DENIED.

ENTERED BY ORDER OF THE COURT

Leonard Green

Leonard Green, Clerk

lia

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN

DISTRICT OF TENNESSEE

WINCHESTER DIVISION

FILED

May 20 8 14 AM'91

U.S. DISTRICT COURT

EASTERN DIST. TENN.

BY KJ DEP. CLERK

JOSEPH CARL DICKERSON and

wife, MARY ELIZABETH

DICKERSON,

Plaintiffs

UNITED STATES OF AMERICA,

Defendants

12a

APPENDIX C

eee eee eee eee eee

MEMORANDUM OPINION

This is an action by two pro

se tax protesters, Joseph and Mary

Dickerson, in which they contend

that the IRS wrongfully levied = on

their wages from The Carrier

Corporation and made unauthorized

and illegal disclosures of their

return and/or return information on

September 5 and 18, 1989. They

also seek to quiet title to various

real and personal property subject

to the liens of the IRS. Although

many of the voluminous’ pleadings

plaintiffs have filed are confusing

and difficult to understand, it

does not appear that Plaintiffs

Challenge the underlying tax

liabilities. Rather, they

Challenge the Statutory notice

Procedures which they contend have

not been carried out. Currently

Pending is the defendant's motion

for summary judgment. For the

reasons that follow, the motion is

granted.

Plaintiffs Joseph and Mary

Dickerson failed to Submit income

tax returns for the 1983, 1984 and

1985 tax years. Therefore, the IRS

determined their tax liabilities

for them and issued notices of

deficiency to them. As reflected

by IRS records, the notices were

sent to Mr. Dickerson on September

14, 1987 for 1983, November 2, 1987

for 1984, and October 17, 1988 for

198s. Notices were sent to Mrs.

Dickerson on June 8, 1987 for 1984,

and August 8, 1988 for i985.

The Dickerson concededly

failed to file petitions in the Tax

Court- and accordingly deficiencies

were assessed for their tax

liabilities fer the delinquent

15a

years. On July 27, 1989, final

notices of intention to levy were

sent by certified mail to the

Dickersons. These notices notified

the Dickersons of, among other

things, the following actions which

the IRS might take should the

taxpayers fail to pay the amount

due within thirty days:

If you do not comply with

this notice, we may take

enforcement action without any

further notice to you. We may file

a notice of Federal tax lien which

is public notice to your creditors

that a tax lien exists against your

Property. We may serve a notice of

levy on your employer for Salary or

wages you are due, and may levy on

any bank accounts, receivables,

commissions, or other kinds of

16a

income you have. We may also seize

your property or rights to

property, such as automobiles, and

sel | it to satisfy your tax

liability.

That both taxpayers received these

final notices of intention to levy

is evidenced by the IRS's receipt

of acknowledging letters dated July

ai, 1989 in which the Dickersons

claimed they were not "persons"

within the meaning of 26 U.S.C.

Sec. 6331i(d), the statutory

provision requiring notice to a

taxpayer before levy.

On September 5, 1989, notices

of levy were issued to

plaintiffs* employer, The Carrier

Corporation, to seize non-exempt

wages of plaintiffs. Notices of

federal tax lien were filed in the

Registrar's Uffice for Coffee

County, Tennessee on September 18,

i989.

Plaintiffs first allege that

the United States wrongfully levied

on their property because they did

not follow proper collection

procedures outlined in the Code.

Under 26 U.S.C. Sec. 7426(a), only

a third party may bring an action

for wrongful levy against the

18a

United States:

: If a levy has been

made on property or property has

been sold pursuant to a levy, any

person (Other than the person

against whom is assessed the tax

out of which such levy arose) who

claims an interest in or lien on

such property and that such

property was wrongfully levied upon

may bring a civil action against

the United States ina district

court of the United States

Thus, plaintiffs have no standing

to bring a wrongful levy action.

Under 28 U.S.C. Sec. 2410, a

taxpayer may challenge the

procedural regularity of a United

States tax lien, but not the

validity of the underlying tax

[4D ity... Poelisekr yy. U.s., 319

19a

F.2d 144 (6th Cir. 1987). In this

case, the IRS carried out all of

the statutory requirements for

creating valid tax liens. Pursuant

to 26 VemeGe Sec. 6203, the IRS

made a formal assessment of the tax

due by the Dickersons. Pursuant to

the requirements of 26 U.S.C. Sec.

6303(a), the IRS mailed notice of

the assessment and demand for

payment to the Dickersons at their

last known address. Thus, the

Government complied with the

prerequisites for the creation of a

valid tax lien and is entitled to

20a

summary judgment on any claim by

plaintiffs under 28 U.S.C. Sec.

2410.

Plaintiffs also complain that

the IRS did not give plaintiffs

proper notice pursuant to 26 U.S.C.

Sec. 6331(d). That section

requires:

(d) Requirement of notice

before levy.-

(1) In general. Levy may be

made under subsection (a) upon the

salary or wages or other property

of any person with respect to any

unpaid tax only after the Secretary

has notified such person in writing

of his intention to make such levy.

(2) Ten-day requirement. The

notice required under paragraph (1)

shall be -

2la

(A) given in person

(B) left at the dwelling or

usual place of business of such

person, or

registered mail to such person's

last known address.

no less than 10 days before the day

of the levy.

26 U.S.C. Sec. 6331(d). On July

a7. 1989, the required final

notices, /including notice of

intention to levy, were sent by the

IRS to the Dickersons. That the

Dickersons received the notices is

undeniable by virtue of their

acknowledging letters of July 31,

22a

1989.

2465 U.S.C. Sec. 6335 deals

with the sale of seized property

and provides of notice to the

property owner of the’ seizure of

his property as soon as practicable

after the seizure. Although the

IRS has apparently established

liens On plaintiffs’ real and

personal property, plaintiffs do

not allege in their complaint that

any of this property has been

seized other than plaintiffs'

wages. Those wages are, of course,

not amenable to sale. There are no

23a

facts upon which plaintiffs can

base a claimed violation of 26

U.S.C. Sec. 6335.

Plaintiffs’ complaint also

alleges that the IRS has made

unauthorized disclosures of

plaintiffs’ return and/or return

information to third persons.

Plaintiffs identify these

disclosures as occurring on

September 5, 1989 and September 18,

1989 and "other times unknown to

the plaintiffs." Apparently

plaintiffs refer to the Notices of

Levy filed on September 5, 1989

24a

with plaintiffs' employer and the

Notices of Federal Tax Liens

recorded on September 18, 1989 at

the Register of Deeds Office.

26 U.S.C. - Sec. 6103(k)(6)

ailows the Secretary to prescribe

the circumstances under which

certain disclosures can be made.

The regulations promulgated by the

Secretary allow the IRS to disclose

return information

(6) To establish or verify

the financial status or condition

and location of the taxpayer

against whom collection activity is

or may be directed, to locate

assests in which the taxpayer has

an interest, to ascertain the

amount of any liability described

25a

in subparagraph (3) of this

paragraph to be collected, or

otherwise to apply the provisions

of the Code relating to

establishment of liens against such

assests or levy onor seizure or

sale of the assests to satisfy any

such liability.

Treas. Reg. Sec. 301.6103(k)(6)-

l(b). Plaintiffs have not alleged

any facts which would support a

conclusion that the IRS made any

disclosures other than those

necessary to effectuate levies and

liens and the possible sale of

assets. Accordingly, the defendant

is entitled to summary judgment on

Plaintiffs' claim of unauthorized

disclosures.

26a

In light of the foregoing,

defendant's motion for summary

Judgment is granted and this action

is dismissed. Plaintiffs’ motion

to strike defendant's exhibits

CCourt File #57] is not well taken

and is denied. Any other’ pending

motions are denied as moot.

Order accordingly.

James H. Jarvis

UNITED STATES DISTRICT JUDGE

27a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF TENNESSEE

WINCHESTER DIVISION

FILED MAY 20 8 14 AM'91

U.S. DISTRICT COURT

EASTERN DIST. TENN.

BY KJ DEP. CLERK

JOSEPH CARL DICKERSON and)

wife, MARY ELIZABETH

DICKERSON,

Civ.

4-90-001

Plaintiffs

)

UNITED STATES OF AMERICA, )

)

Defendants

ORDER

For the reasons set forth in

the Memorandum Optniun this day

28a

passed to the Clerk for filing, it

is hereby ORDERED that defendant's

motion for summary judgment is

GRANTED and this action is

DISMISSED. Plaintiffs’ motion to

strike defendant's exhibits

(Court File #57) is not well taken

and is DENIED. Any other pending

motions are DENIED AS MOOT,

ENTER:

J.oH. Jarvis,

James H. Jarvis

UNITED STATES DISTRICT JUDGE

Date 5-20-91

Order Book 22 Page 47

29a

No. 89-5740

FILED APR 17 1990

LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS vo

FOR THE SIXTH CIRCUIT

DAVID L. WILLIAMS,

Plaintiff-Appel lant,

UNITED STATES OF AMERICA;

INTERNAL REVENUE SERVICE;

LAWRENCE B. GIBBS, COMM.

Internal Revenue Service;

WILLIAM PALZKILL, District

Director Internal Revenue

Service; C.E. SMALLEY,

Chief, Special Procedures

Internal Revenue Service;

STEPHEN PECK, Agent

I ernal Revenue Service;

Defendants-Appel lees,

GLEN BRUCE, Graves County

Court Clerk; DONNA SEXTON,

Graves County Court Deed

Clerk; GENERAL TIRE, INC.,

)

;

)

Defendants.

30a

APPENDIX D

Graves County.

However, a careful review of

the complaint shows that Williams

only requested declaratory and

injunctive relief. Therefore, the

district court should not have

dismissed the defendants who were

IRS employees on the basis of

qualified immunity. See Littlejohn

’ Rose, 768 F.2d 765, 772 (6th

Cir.), cert. denied, 475 U.S. 1045

(1985). The qualified immunity

defense is also inapposite because

Williams sued the I.R.S. empioyees

in their official capacities. Id.

3la

motion under Fed, me Gav. Pr. 539,

this court generally considers only

whether the district court abused

its discretion by not changing it

Original order. Huff Vv.

Metropolitan Life Ins. a 675

F.2d 213, 12ZZ2-i23 n.5 (6th Cir.

1982). However, a de novo review

iS appropriate when the district

court bases its decision on an

erroneous legal doctrine. Id. In

the instant case, Williams now

concedes that the court did not

abuse its discretion by dismissing

William's timely motion to

reconsider that dismissal under

Fed. R. Civ. P. S59 (West 1989).

Williams filed a timely notice of

appeal from this second order on

June 13, 1989. Williams now states

that he is not challenging his

underlying tax liability.

Nevertheless, he maintains that the

dismissal of his case was

inappropriate because the appellees

did not follow correct procedures

when they placed a tax lien on his

property.

In reviewing the denial of a

33a

relief to prevent these appellees

from enforcing a levy on his wages

and a lien on real Property that he

Owned in Graves County, Kentucky.

Williams also sued his employer as

wel | as the county clerk and a

records clerk in Graves County

because they cooperated with the

appellees in their attempt to

collect his taxes.

On April y 4 1989, the

district court entered an order

that granted the defendants’ motion

to dismiss. On June 1, 1989, the

court entered an order that denied

34a

The appellees are the United

states, the Internal Revenue

Neivide and several [.R.S.

employees who were used in their

official Capacities. William's

case has been referred to 4a pane!

of the court pursuant to Rule Q9(a),

Rules of the Sixth Circuit. Upon

examination of the record and the

briefs, the panel unanimously

agrees that oral argument is not

needed in this case. Fed. R. App.

P. 34(a).

In his complaint, Williams

sought declaratory and injunctive

35a

NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

Sixth Circuit Rule 24 limits

Citation to specific Situations.

Please see Rule 24 before Citing in

a Proceeding in a4 court in the

Sixth Circuit if cited, a COpy must

be served on Other parties and the

court,

This notices is to be Prominently

displayed if this decision jis

reproduced,

BEFORE: Guy and NORRIS, Circuit

Judges; and CONTIE, Senior

Circuit Judge.

David L, Williams is a pro se

taxpayer who appeals the district

court's Orcer that denied his

motion to reconsider the dismissal]

Of a case that he had filed under

248 U.S.C. Sec. 1340 (Supp. 1989)

and ae U.S.C. Sec. 2410 (1978),

36a

"CAlctions against parties in

their official capacities are,

essentially, actions against the

entities for which the officers are

agents." Id. Thus, William's

complaint effectively presents a

claim only against the United

States insofar as it involves

actions that were taken by the [RS

and its employees as agents of the

United States. See Atkinson Vv.

O'Neill, 867 F.2d 589, 590 (10th

Cir. i969); cf. 26 U.S.C. Sec.

7422(c) (1989). The IRS and its

employees are properly dismissed

37a

from the case for this reason.

Deleeuw v. I.R.S., 681 F.

402, 403-04 (E.E. Mich. 1987).

The United States is

proper party in interest in

action to quiet the title

William's property because

See

Supp.

the

United States is the lien holder on

that property. "It is well settled

that the United States as a

sovereign is immune from suit

unless it expressly waived such

immunity and that the bar of

sovereign immunity cannot be

avoided simply by naming offi

cers

38a

and employees of the United States

as defendants." Ecclesiastical

Order of the Ism of Am, Inc. Vv.

Chasin, 845 f.2d 113, 115 (6th Cir.

1988) (citations omitted).

Sovereign immunity is not waived by

the district court's general

Jurisdiction under 28 U.S.C. Sec.

1340. Essex v. Vinal, 499 F.2d 226,

231° (6th Cir. 1974), cert. denied,

419 U.S. 1107 (1975). However,

sovereign immunity is not a bar in

the present case because 28 U.S.C.

Sec. 2410 creates a_ limited waiver

of immunity in cases that challenge

the procedural! regularity of a

lien, rather than the amount of the

underlying tax liability. see

Pollack v. United states, $19 F.2d

144, 145 (6th Cir. 1987).

The district court found that

the gravamen of Williams's

complaint was a challenge to the

assessment of his taxes and that

these taxes must be paid before the

court would have jurisdiction over

his case. See 26 U.S.C. Sec 7422(a)

(1989); Pollack, 819 F.2 at 145-46.

However, Williams asserts that he

lid not challenge his underlying

40a

tax liability. Moreover, a review

of his complaint shows that

Williams challenged the procedural

regularity of the defendants' lien

on four separate grounds. These

allegations are sufficient to

Support a waiver of immunity under

28 U.S.C. Sec. 2410 and to

establish the court's jurisdiction

despite the prepayment requirements

Of 26 U.S.C. Sec 7422(a).

Williams first argues’ that

the defendants failed to prepare a

substitute return in calculating

his tax liability. The IRS is

authorized to prepare a substitute

return of taxpayers who fail or

reruse to submit returns on their

own. 256 Se Sec. 6020(a)

(1989). However, William's

argument _on this point is

ive

iT)

unavailing because the permis:

language of Sec. 6020(a) did not

require the defendants to prepare a

return in hi: United

States v. Verkuilen, 690 f. 2d 648,

SoS? (7th Cir. £962).

Second, Williams argues that

the defendants did not send him a

"Notice of Deficiency regarding

42a

his tax liability for 1983. See 26

U.S.C. Sec. S212(a) (1989).

However, the notice required by

Sec. 6212(a) is sufficient "when it

advises the taxpayer that the

Commissioner has determined a

deficiency, when it tells the

taxpayer the amounts of the

deficiency and the years involved,

and when the taxpayer is informed

of the basis of the Commissioner's

action.” Gaska v. Commissioner, 800

rF.20 633, 634 (6th Cir. 1986).

Williams has attached documentation

from the IRS to his complaint that

43a

satisfies each of these

requirements.

Third, Williams argues’ that

the defendants did not-send him a

"Notice of Assessment and Demand"

on IRS form 17a. See 26 U.S.C. Sec.

6303(a) does not require any

particular form of notice. See

Planned Investments, Inc. v. United

States, 881 F.2d 340, 343-44 (6th

Cir. 1989). This type of notice is

sufficient if it demands payment of

a specific amount of tax. Id). The

notices that Williams attached to

his complaint appear to. satisfy

44a

this requirement even though they

were not prepared on form 17(a).

Moreover, the notices appear to

satisfy the equity requirements of

due process because Williams was

adequately advised of the basis of

his tax liability and of his

Opportunities for appeal through

his correspondence and meetings

with the defendants. Cf. Id.

Finally, Williams argues that

the defendants did not prepare an

appropriate assessment of his tax

liability on IRS form 23(c). See 26

U.S.C. Sec. 6203 (1989). The

45a

district court correctly found that

the defendants were not required to

use this specific form. Cf. United

States v. Berman, 825 ?.2d 1053,

1055-56 (6th Cir. 1987). However.

the court did not cai any findings

as to whether the pleadings showed

that a formal assessment had been

made. Id,

The regulation that

prescribes the method for making an

assessment provides in pertinent

Part as follows:

The district director and the

director of the regional service

center shal! appoint one or more

assessment officers. The district

; 46a

director shall also appoint

assessment officers ina Service

Center servicing his district. The

assessment shall be made by an

assessment officer signing the

summary record of assessment. The

summary record, through supporting

records, shall provide

identification of the taxpayer, the

character of the liability

assessed, the taxable period, if

applicable, and the amount of the

assessment.

26 C.F.R. Sec. 301.6203-1 (1989);