# Petition for Writ of Certiorari — Dickerson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 864

## Text

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED. |

( = ‘

see Gon, US.
FILED

JUN 22 1999 |

[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

ii

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

es

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
Ni
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

vi

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

x

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

7

i
4
:

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

8

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

10

>

4
;
zs

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

11

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

12

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

13

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

14

;
‘

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

15

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

16

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

i7

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,

16

3

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

i9

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

20

:
%
2
>
2
4

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

21

5
&
5
Z
‘
2
aa
a
x

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

22

.

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

23

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:

24

oe

"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

25

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

26

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

27

— 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:

28

"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

* ~

29

P
a
¥
7
¥
4
.
:
x
‘

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.

30

1 aay ata

bee et AB Oe hed bie

:
3
4
:

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

31

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

32

4
a
4
7
3

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~

33

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-

34

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

35

ae

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,

36

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

37

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.
(c) Payment authority. Claims
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

38

statute giving any authority in this

no

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.

F.

McCullough Industries, Inc. 351

Supp. 1024, 1030, citing the Supreme

Court in Beebe vy. Russell, 19 Howard

39

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

40

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

41

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:

(c) Damages. -— In any action
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
of

(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.)
42

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,

43

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.)

ae

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,

45

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

46

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.

47

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,

48

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

49

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

50

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;

51

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);

52

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).

53

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,

54

JOSEPH CARL DICKERSON
Pro se

55

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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,

V.

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
5a

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

6a

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

7a

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
V.

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

e

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

(C) sent by certified 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

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
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

V.

)
)
)
)
)
)
)
)
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,
V.

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

ui

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.

an

to

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

vi
Ww
D

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

:
Be
&
4

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);

See also, Planned Investments Inc. .

881 F.2d at 343. The appellees do
not argue that such an assessment
was made, - Instead they argue that
"Cwlhile an assessment must be made
before a lien can be filed or a

levy served, .. ., there is no

47a

requirement that a taxpayer receive
a copy of the assessment before the
IRS moves to collect the taxes due
via the lien or levy procedures."
see 26 U.S.C, Secs. 6231 and 6331
(1989), This argument is not
sufficient to SUPport of dismissal]
under Fed. R. Ciy. P. 12(b) (West
1989), An appropriate assessment
is a procedural! Prerequisite to a
tax lien, Cf. Berman, 825 r.2d at

1055-56; United States Vv.

Swarthout, 420 F.2d 831, 334-35

(6th Clr, 1970), William's

complaint raises an issue as to

48a

whether a Proper assessment was

made, His suit Cannot be dismissed

if this issue has not been
resolved. Cf. Essex, 499 F.2q at
230-31.

In summary, Williams Concedes
that his employer and the county
Clerks were Properly dismissed from
this case, It was also Proper to
dismiss the [Rs and its employees
because the United States is the
real Party in interest in this
case, The district Court had
Jurisdiction under 28 U.S.C. Sec.

2410 despite the Prepayment

49a

requirement of 26 U.S.C. Sec 7422

because Williams challenged the
procedural regularity of the
defendants’ lien rather than’ the

Validity of his underlying tax

liability. While three of his
Procedural objections are without
merit, his claim that the

defendants did not prepare a formal!
assessment of his taxes is not
clearly resolved by the record and
is itself sufficient to defeat a
motion by the United States to
dismiss under Fed. R. Civ. P.,

12(b).

50a

For these reasons, the
district court's Order of dismissa]
is hereby affirmed with regards to
all Of the defendants except the
United States, and vacated insofar
as it dismisses the United States,
and the case is hereby remanded for
further Proceedings. Rules 9(b)(5)
& (6), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

Leonard Green
Clerk

5la

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0957%3A1. Public record. Not legal advice.