Petition for Writ of Certiorari — Gardner v. United States

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Supreme Court, U.S

FILR 1’

N. 90 92607 1 9 29

ane anes

IN THE

SUPREME COURT OF THE UNITED STATES

BRUCE E. GARDNER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Bruce E. Gardner, Esq

Petitioner Pro Se

The Gardner Law Firm, P.C.

601 Pennsylvania Ave NW

Suite 900

Washington, D.C. 20004

(202) 271-0552

"oP ate ON

QUESTIONS PRESENTED FOR REVIEW

1. The tax deficiency notice requirements of Internal Revenue

Code (IRC) §6212 and §6213(a) prohibit the IRS from:

assessing a tax deficiency,

levying any property, and

taking any court action to collect a tax deficiency,

until notice of the tax deficiency has been mailed to the

“taxpayer’s last known address”.

Taxpayer/Bruce E. Gardner’s, 1990 tax return was

audited by the IRS in Houston, Texas when he was employed

as a Senior Trial Attorney with the IRS’ Sacramento District

Counsel’s Office. Mr.Gardner’s Sacramento supervisors told

him he had “‘no rights concerning his 1990 tax audit”.

On August 22, 1995, the IRS made an income tax

assessment against the taxpayer for the 1990 tax year prior to

mailing him a notice of the tax deficiency. Two years later,

the IRS commenced to levy the taxpayer’s bank account prior

to mailing a deficiency notice.

Since a notice of the tax deficiency was never miailed

by the IRS to the taxpayer, Mr. Gardner filed a motion with

the district court to enjoin the IRS levy because the IRS failed

to comply with the mandatory tax deficiency notice pre-

requisites and therefore, no legal tax debt was ever created.

In Gardner I,' the district court held it lacked subject matter

jurisdiction over the IRS’ violation of 26 U.S.C § 6212 and

§6213(a) which is in direct conflict with this Court’s decision

1 Gardner, et al v. United States, 96 CV 523 (D.C.

D.C.1999) A2z2.

in Commissioner y Shaprio,474 U. §. 614, 616 (1976) and

Laing v United States, 423 U.S. 16] (1970). Then the district

Court dismissed the 1990 tax refund action because the

taxpayer had not paid a 1995 tax assessment, even though the

The same issues raised by motion in Gardner /, were

raised in a separate complaint in Gardner III? On brief , the

“Gardner v. United States, 97 CV 3075 (D.C_D.C 1999)

Al8

—

2. Whether taxpayer/Gardner’s rights of equal protection of

the law were violated when the IRS’ failed to afford him the

protections afforded other taxpayers under 26 U.S.C.§6212

and §6213(a) because he was an IRS employee.

3. Taxpayer/Gardner filed a supplemental 1990 income tax

refund claim in the amount of $1,939.00 for overpayment of

an April 15, 1991 IRS income tax assessment. The 1991

income tax assessment was fully paid by the taxpayer.A32.

However, Mr. Gardner’s supplemental refund claim was

never processed by the IRS because it conflicted with the

graveman of his employer’s adverse personnel action against

him. Mr. Gardner’s supervisor's wanted to discharged him

from his Senior IRS Trial Attorney position based on

allegations that he purportedly owed $1,680.00 in

supplemental income taxes for the 1990 tax year based on an

IRS tax audit of his original Form 1040.

In response to the taxpayer’s refund claim that he

overpaid the 1991 tax assessment by $1,939.00, the IRS by

the motion, alleged a 1995 tax deficiency in the amount of

$1,680 assessed on August 22, 1995 warranted dismissal of

Mr. Gardner’s tax refund action for lack of subject matter

jurisdiction because the taxpayer had not fully paid the 1995

tax assessment.

The district court held that it lacked jurisdiction under

Fed.R.Civ.P 12(b)(1) to determine whether Mr. Gardner over

paid the 1991 income tax assessment because all the tax

assessments for the entire 1990 tax year had not been paid

2. Whether taxpayer/Gardner’s rights of equal protection of

the law were violated when the IRS’ failed to afford him the

protections afforded other taxpayers under 26 U.S.C. §6212

and §6213(a) because he was an IRS employee.

3. Taxpayer/Gardner filed a supplemental 1990 income tax

refund claim in the amount of $1,939.00 for overpayment of

an April 15, 1991 IRS income tax assessment. The 1991

income tax assessment was fully paid by the taxpayer.A’32.

However, Mr. Gardner’s supplemental refund claim was

never processed by the IRS because it conflicted with the

graveman of his employer's adverse personnel action against

him. Mr. Gardner’s supervisor’s wanted to discharged him

from his Senior IRS Trial Attorney position based on

allegations that he purportedly owed $1,680.00 in

supplemental income taxes for the 1990 tax year based on an

IRS tax audit of his original Form 1040.

In response to the taxpayer’s refund claim that he

overpaid the 1991 tax assessment by $1,939.00, the IRS by

the motion, alleged a 1995 tax deficiency in the amount of

$1,680 assessed on August 22, 1995 warranted dismissal of

Mr. Gardner’s tax refund action for lack of subject matter

jurisdiction because the taxpayer had not fully paid the 1995

tax assessment.

The district court held that it lacked jurisdiction under

Fed.R.Civ.P 12(b)(1) to determine whether Mr. Gardner over

paid the 1991 income tax assessment because all the tax

assessments for the entire 1990 tax year had not been paid

*A=Appendix

even though it admits the 199] tax assessment upon which

the refund claim was made was fully paid A 17,32.

Whether 28 U.S.C.§ 1346(a)(1) limits a district court’s

subject matter jurisdiction over a refund action to “the income

tax assessment” upon which the refund claim is made when

paid in full prior to filing the refund suit. Therefore, the

district court has subject matter jurisdiction under 28 U.S.C §

1346(a)(1) to decided the taxpayer’s 1990 tax refund claim

based on overpayment of the fully paid 1991 tax assessment

upon which the claim was based. Hence the district court’s

Fed.R.Civ.P. 12(b)(1) dismissal should be reversed. Flora .

4. Whether the district court lacked subject matter jurisdiction

over the alleged 1995 tax deficiency because Congress

reserved jurisdiction over tax deficiency issues to the U.S.

Tax Court, the IRS never counterclaimed the alleged tax debt

into the 1990 tax refund action, and the tax deficiency did not

satisfy any of the requirements of a tax refund action. Flora

184.

5. In Gardner III, the D.C. Circuit held the district court

abused its discretion when it dismissed Mr. Gardner’s case for

failure to prosecute because of his medical absence from the

first motion hearing. The D.C. Circuit did not address the

Rule 41(b) dismissal in Gardner ] when it denied Mr.

Gardner’s motion for summary reversal and then sua sponte

summarily affirmed the district court’s Rule 12(b)(1)

jurisdictional dismissal of the IRS’ violations of 26 U.S.C.§

6212 and §6213(a). Al6

The district court's Rule 41(b) dismissal of Gardner /.

II’, and III, arose out of the same facts because the district

Court set a joint motions hearing for all three cases on January

27, 1999, before dismissing them pursuant to Rule 41(b) for a

documented medical absence. The D.C. Circuit reversed the

Rule 41(b) dismissals in Gardner // and JI] for abuse of

discretion but it never addressed that issue in Gardner |

Whether the district court abused its discretion in Gardner /

when it dismissed the tax refund actions with prejudice for

want of prosecution under Fed.R Civ.P. 41(b) when plaintiff's

documented medical condition resulted in his absence from

the first motion hearing and no history of contemptuous

conduct existed.

* Gardner v. U.S. et al, 99-5089 (D.C. Cir. 1999)

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW..........0..0000....... I

PARTIES TO THE PROCEEDING................cc.cccccccssscsessees iil

Ce Oe COCO ass iscesisttidccksecnstuahescardblsksatochscnnnct vi

SE CEB i scncnsscctvarcsnsenscnsccinssconsencsanasiionl ix

SO INIT Sicssniiicisansicsvsicubcctbahtesciiclissaptnibaedadhdicecabeatitien l

eI sins ctsasicacicabccadasenisettanatadethunbabuden l

Significant Unpublished Order... 0.00.00... l

UII NT A cidiltnescisnitebiadusisnieiscnaslabileiis duddadcsicannisichadhecdbases |

STATUTORY PROVISION INVOLVED..........0000000.......... 3

ERE i ST RO 5

REASON FOR GRANTING THE WRIT.....00000..00o000.. 12

1. D.C. Circuit Decision Directly Conflicts With Landmark

gE Ae eee ee Te CNN eet 12

A. District Court Has Jurisdiction Over Fully Paid

1991 Tax Assessment Upon Which The

Refund Is Claimed

B. District Court Lacks Subject Matter Jurisdiction

Over 1995 Tax Deficiency... 14

C. DC. Circuit Traditionally Had Difficulty Grasping

Tax Deficiency Concepts...00.000000 occ. 15

D. Rule 41(b) Dismissal For Medical Absence From

Absence From Motion Hearing Was

An Abuse of Discretion....00000.0000000 16

II. Important Questions of Federal Law Not Decided By

sie i oo EON Te Lo eh 16

III. Direct Conflicts Between D.C. Circuit Decisions &

tc, SORTING INAS ican

IV. Denial of Constitutional Guarantee Calls For

Exercise of this Court’ Supervisory Powers................. 21

A. Taxpayer Denied Equal Protection of The Law... 21

B. Taxpayer Denied Due Process of Law... 22

C. This Court Exercises Jurisdiction To Protection

Constitutional Rights.0002000. oo. 23

F< RN vicecmsvaiteievaicassneelctide sxe eoniaiale: 24

vii

APPENDIX A May 19, 2000

D.C. Circuit Order

OE I TI icvoisiviccisscccssascocsetn eee Al

APPENDIX B: October 8, 1999

D.C. Circuit Order

iiss sstsc ss csarcsnniacysneuecsabebebsacan een ee Al6

APPENDIX C January 29, 1999

U.S. District Court

Memorandum Opinion & Order

I Giietissiitccta eset ee Al8

APPENDIX D January 29, 1999

U.S. District Court

Memorandum Opinion & Order

ng RESETS RAN a DS RE EC ROD aE A22

APPENDIX E July 21, 1997

FL AT I RED A28

APPENDIX F July 11, 1997

eee NPE ha 2bs cicasidndssccedetelivssncdcdelaravendeans A30

APPENDIX G February 18, 1998

Amended Complaint On

Violation of Mandatory Notice Deficiency

REISE SSN OY NR PTO Te a A34

viii

APPENDIX H March 18, 1996

Cn OU I ii iii incites A45

APPENDIX I December 28, 1999

D.C. Circuit Order

Denying En Banc Rehearing

ks PEO DOE MMe! irae area Treen ASI

APPENDIX J July 21, 2000

D.C. Circuit Order

Denying Rehearing

Oe: Silke een Jos eee ee A52

TABLE OF AUTHORITIES

CASES PAGE

Camp v. C&P Telephone,

OE Fe Be ele PP indhchithacnssiccctbinasstrcvnaiaternnes 16

Chapman v. Goodnow, 123 U.S. 540 (1887) ....ccccccccceseeree ss 23

Commissioner v. Shapiro, ;

GFE CB BE Gr ivsticinisistisatinasnieciaas 11,6, 10,12,13,14,15,

Dent v. West Virginia, 129 U.S. 114 (1889)........c.ccseeseeeeee. 22

Flora v.. United States, 357 U.S. 63 (1958),

aff'd on reh’g, 363 U.S. 145

i ee ii,iv,1, 4,6,9,12,13,14,15,16,17,18,20,23,24

Gardner v. United States,et al.

No 99-5089, reh’g denied, (D.C. Cir. 1999).......cccccsssseseees Vv

Gardner et al v. United States,

No 99-5080, reh'g denied, (D.C. Cir. 1999).....:.ccccsesseeeees a

Gardner v. United States,

No 99-5065, reh'g denied, (D.C. Cir. 1999).....ccccsccsseeeseeees l

Gardner et al. United States

97 CV 3075

CE, FOR a iid ssierintliieioen ii,iv, 1 ,2,37,10,12,19,22

Gardner et al. United States

96 CV 0523 (D.C.D.C. 1999)...........A,i,1V, 1,2,7,8,12,13,19,22

Gurthie v. Sawyer, 970 F.2d 733 (10th Cir. 1992).......000++ 15

Gomez v. Toledo, 446 U.S. 635 (1980).....cccccccccccsceseees 8,13,14

Gustin v. United States, 876 F.2d 485 (5th Cir. 1989)........ 20

Keeter v. United States,

O57 F Seg. 1168 CED. COLD) on ssccacscssssscssccscccsessssgsans 2,18

Laing v. United States,

BAG CES, BRE re itititttnteesinienvinsiisiaicsnsnsiaiss ii,6,12,13,14,15

Link v. Wabash RR, 375 U.S. 626 (1962).............:::cseee 16

Lundy v. Internal Revenue Service.

45 F.3d 856 (4th Cir. 1995), rev'd other grounds,

BIE CRT CII sistesitinsissiticisnsnsaniniaiiiiansianiusnirninniinenses 17

Navigation Co. v. Homestead, 123 U.S. 552 (1887)........... 23

Pfeiffer v. United States,

S18 Fe 124 GIR CHW. 19748)... csiccisscicdiinciatsene’ 6,0,16,18,19

Roger v. Alabama, 192 U.S. 230 (1904).....0.....ee 21

Russell v. United States, .

Lge Ff, ee, j, rn mm pee 19,20

Smith v. Sperling, 35-4 U.S. 91 (1957)......ssssscesscssssssesssseseees 17

Smithsonian Institute v. St. Johns, 214 U.S. 19 (1909)........ 21

INE TI i iso sscudnsccssnacdeecansardoconmeaneen 3,11,23

STATUTES

y Lib. +8 +) > Sere 1,1, iii,1V, 13,5,9,10,11,12,14,18,23

26 U.S.C.§6213(a)........ 1,11, i11,1V, 1,23,5,6,9, 10,12, 14,18,21,23

RT RS | | Seep rman er te 4,6,8,11,17,18,19

Occ. atest. cx ssacttdshilecahchukceak lvbskclocpenctame 5,19

Br I. iiivicscsiscscctencanuireedaeieneaios Maia abnaseem 8

p LGD Fok 5 RRR NSTI Pr ROEN Mirbr Ae Mtr o remy Te Sh. 4

Bh te Rik ndsccerasscacsrecrnsdesatrigestamaded agate ]

I I i ae 18

Be Be Sisichcisintnesi since datdedeceeaeeee 4

Be We NO Riaiscccisdcssesisevnnescneneneas iv, 1,4,5,6,13,14,24

i I assiicesdntiasaciiaeeieedac otis 4

LA Te |b IRN EE STEER OH eS Bee ONT 4

FEDERAL RULES OF CIVIL PROCEDURE

NE isis cancspatiainiabesamenndencitaataiaatiall iii,iv, 1,3,6,8,10,12

cs sic asiasiunn cikastegsusahindacasel Ceanaaeananeee tak maaan maaan 11

——

MO ebnleti tae Rhus tsrddcabisssensilosdengiase ced v,1,6,11,12

Theodore D. Peyser,

Tax Management Portfolio No 631,

il csi ullsoksinsasdssnsccenccceseséss 17

OPINIONS BELOW

Gardner. v. United States of America,

No.99-5065 , reh'g denied, (D.C.Cir. 1999)

Gardner et al. v. United States of America.

No.99-5080 , reh'g denied, (D.C.Cir. 1999)

Gardner. v. United States of America.

97 CV 3075 (D.C.D.C. 1999)

Gardner et al. v. United States of America.

96 CV 0523 (D.C.D.C. 1999)

JURISDICTION

The jurisdiction of this Court over appellate decisions

in civil tax case is conferred by 28 USC§1254(1).

The district court had jurisdiction over this 1990 tax

refund action pursuant to 28 U.S.C.§1346(a)(1) because “the

[1991] tax assessment” upon which the refund claim was

made was fully paid.A32; Flora, 150-5]. However, the

district court lacked subject matter jurisdiction over the

alleged 1990 tax deficiency resulting from non-payment of the

1995 assessment of that deficiency. Jd. ; 26 U.S.C.§6213(a).

On May 19, 2000, the Court of Appeais for the

District of Columbia reversed the district court’s Rule

12(b)(1) and 41(b) dismissals of the taxpayer’s compliant.

The taxpayer asserted violations of his 5th Amendment and

statutory rights to notice and an opportunity to be heard.

A19-20. §6213(a).Al. Despite the D.C. Circuit’s decision in

Gardner III that the district court had jurisdiction under IRC

§ 6213(a) to decide issues resulting from violations of the

mandatory tax deficiency notice laws, it declined to reverse its

panel's sua sponte summary affirmance of that same issue

raised in the Gardner | appeal.°A9, A15.

On July 21, 2000, the D.C. Circuit expressly

reconsidered the effect of the IRS’ violation of the prohibition

against tax assessments and levies under IRC§ 6213(a) in

Gardner I when deciding Gardner II] . However, the

appellate court declined to realign the issue of the district

court’s subject matter jurisdiction over IRS violations of IRC

§6213(a), decided in Gardner III, with its decision in

Gardner | to dismiss the 1990 tax refund suit because of a

prohibited 1995 tax assessment.§6213(a). The D.C. Circuit

simultaneously denied the petition for rehearing and

suggestion for en banc review on July 21, 2000 A54.

On October 19, 2000, Mr. Gardner timely lodged his

petition with this Court within 90 days from the date the D.C.

Circuit denied his petition for rehearing. This Court allowed

Mr. Gardner an additional 60 days to perfect the lodged

petition. This corrected petition is lodged within the

additional 60 days granted by this Court

Gardner et al. v. United States of America.

No.99-5080 , reh 'g denied, (D.C.Cir. 1999)

U.S. CONSTITUTION, Amendment V

No person shall ... be deprived of life, liberty, or property,

without due process of law; nor shall private property be

taken for public use, without just compensation.

Fed.R.Civ.P.12 - Defenses and Objections...

(b) Every defense, in law or fact, to a claim for relief

in any pleading, ..., shall be asserted in the responsive

pleading...,except that the following defenses may at the

option of the pleader be made by motion:

(1) lack of jurisdiction over the subject matter...

26 U.S.C.§ 6212 - Notice of Deficiency

If the Secretary determines that there is a deficiency in

respect of any tax imposed by subtitle A or B . He is

quihorized [9 send notice of such deficiency to the taxpayer

by certified mail or registered mail. [emphasis added. }.

26 U.S.C. §6213(a)- Restrictions Applicable to

Deficiencies: Petition to Tax Court.

...[A]fter the notice of deficiency authorized in section

6212 is mailed,...,the taxpayer may file a petition with the

Tax Court for a redetermination of the deficiency. Except

as otherwise provided...no assessment of a deficiency in

respect of any tax imposed by subtitle A or B, ,,, and no levy

Qf proceeding in court for its collection shall be made,

begun, or prosecuted ymgi] such notice has been mailed to

the taxpayer. [emphasis added]. Notwithstanding the

provisions of section 7421(a), the making of such assessment

or the beginning of such proceeding or levy during the time

such prohibition is in force may be enjoined in a

proceeding in the proper court, including the Tax Court.

[emphasis added. ]

26 U.S. C. 6511- Limitations on Credit or Refund

Claim for credit or refund of an overpayment of any

tax imposed by title in respect of which tax the taxpayer is

required to file a return shall be filed by the taxpayer within 3

years from the time the return was filed or 2 years from the

time the tax was paid, whichever of such periods expires the

later...

28 USC § 1331 - Federal Question

The district court shall have original jurisdiction of all

civil actions arising under the Constitution, laws or treaties of

the United States.

28 USC § 1361 - Action to compel an officer of the

United States to perform his duty.

The district court shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or

employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.

28 U.S.C.§ 1340 - Internal revenue; customs duties.

The district court shall have original jurisdiction of any

civil action arising under any Act of Congress providing for

internal revenue...

28 U.S. C.§ 1346 - United States as defendant.

(a) The district court shall have original jurisdiction,

concurrent with the United States Court of Federal Claims, of

(1) Any civil action against the United States for the

recovery of any internal-revenue tax alleged to have been

erroneously or illegally assessed or collected, or any penalty

claimed to have been collected without authority or any sum

alleged to have been excessive or in any manner wrongfully

collected under the internal-revenue laws:

26 U.S.C.§6512 -Limitation In Case of Petition To

Tax Court.

If the Secretary has mailed to the taxpayer a notice of

deficiency and section 6212(a)(relating to deficiencies of

income...) And if the taxpayer files a petition with the Tax

Court within the time prescribed in section 6213(a)... no suit

by the taxpayer for the recovery of any part of the tax shall be

instituted in any court except

(1)As to over payments determined by a decision of

the Tax Court which has become final:

(2) As to any amount collected in excess of an amount

computed in accordance with the decision of the Tax which

has become final...

STATEMENT OF THE CASE

This case involves the limited jurisdiction of the U.S.

District Court under 28 U.S.C.§ 1346(a) to determine

whether a taxpayer over paid a 1991 income tax assessment

and is entitled to a refund. The taxpayer timely filed his refund

claim asserting that “the” 1991 tax assessment was overpaid

by $1,939.00. Flora. The IRS refused to act on said claim

because the taxpayer was an IRS employee and his

supervisors wanted to terminate his employment based on an

alleged 1990 tax deficiency of $1,680.

This Court in Flora held the district court has

jurisdiction over a tax refund actions so long as “the tax

assessment” for which the refund is claimed was fully paid

prior to filing the action. /d 177. 28 U.S.C.§ 1346(a)

Although the district court recognized that it has subject

matter when “the challenged [1991] tax assessment was paid”

it erroneously dismissed the taxpayer’s 1990 tax refund action

pursuant to Rule 12(b) (1) because the taxpayer had not paid

the 1995 tax assessment which was never a basis of the refund

claim.A25,32. In essence, the district court denied Mr.

Gardner access to the court for not paying a $1,680 tax

deficiency that was not properly before the court. Only the

U.S. Tax Court has jurisdiction to determine a tax deficiency

for the entire tax year® and Mr. Gardner was denied access to

the Tax Court because the IRS boldly and intentionally

violated the mandatory tax deficiency notice statutes.’

The district court and D.C. Circuit incorrectly

expanded the Flora decision to require payment of all tax

assessments for the same tax year before jurisdiction is

conferred on the district court. A17; Flora 175. This

expanded view of Flora defeats the statutory refund scheme

Congress set forth when it enacted IRC§6511 and is in direct

conflict with this Court’s decisions in Shapiro® and Laing °

which held mailing a notice of the tax deficiency to the

taxpayer is a pre-requisite to a tax assessment and levy. And

° Pfeiffer Company v. United States,518 F.2d 124, 130 (8th

Cir. 1975).

” Judge Sullivan also denied Gardner access to the court by

his Rule 12(b) and Rule 41(b) dismissal of Gardner I, I. & II

“Commissioner v. Shapiro, 424, U.S. 614, 616 (1976).

[certiorari from the District of Columbia Circuit.]

*Laing v. United States, 423 U.S. 161, 184 n.27 (1976).

————eeeEeEeEeEeEeEeEeEeEeEeEeEeEeESEeee—Seeeeaeaaea -

the taxpayer is not required to pay a tax assessment when the

IRS has not complied with the mandatory tax deficiency

notice statutes. Laing 184; Shapiro 616;§6213(a).

The issue of the district court’s subject matter

jurisdiction over Mr. Gardner’s claim that he overpaid the

1991 income tax assessment by $1,939.00 was first raised in

Gardner I and then again in Gardner III. Taxpayer/Gardner

was a federal employee, employed by the IRS Chief Counsel’s

Office in Sacramento, California. His supervisors targeted Mr.

Gardner for removal from his position of Senior Trial

Attorney, based on allegations that he owed the IRS $1,680

based on a Houston, Texas IRS tax audit of his original 1990

tax federal tax return.

Mr. Gardner disagreed with the tax auditor’s

determination and appealed her decision to the IRS Appeal

Office for review. However, consistent with IRS Assistant

Sacramento District Counsel Neal O. Abreu’s statement, that

Mr. Gardner had “no administrative appeal rights” this

taxpayer was not afforded his rights to exhaust his

administrative remedies before the IRS Appeals Office, as

afforded millions of other taxpayers who routinely appeal

proposed IRS tax determinations to the IRS Appeals Office.

The disparate treatment afforded this taxpayer occurred

because of his IRS Sacramento District Counsel Attorney

position. It also occurred because his supervisors did not want

a fair and accurate review of the tax determination, because

they wanted to use the $1,680.00 tax adjustment as a basis for

terminating Mr. Gardner’s employment. And in fact Mr.

Gardner was terminated in November, 1994 for allegedly

improperly filing his 1990 federal tax return based on the

alleged 1990 tax deficiency.

Prior to Mr. Gardner's termination, he timely

amended” his 1990 income tax return, by claiming deductions

that were not included on his original 1990 return. The

additional deductions would have resulted in an $1,939.00

overpayment of the original 1991 income tax assessment. This

1991 tax assessment was paid in full by federal income taxes

withheld by Mr. Gardner’s employer from his wages . Those

federal withholding taxes were deemed advance payments

made on April 15, 1991 which initially resulted in a $5,147.14

income tax refund to Mr. Gardner. [IRC § 6513(b)].A32.

The IRS arbitrarily ignored the supplemental tax refund claim !

and declined to process the amended 1990 tax return or deny

the refund claim.A50.

On March 18, 1996, the taxpayer timely filed tax

refund actions with the U.S. District Court for the District of

Columbia based on the IRS’ failure to issue supplemental

income tax refunds for several tax years including the 1990

tax year which was Count II of his complaint in Gardner /.

A47.

The defendant moved pursuant to Rule 12(b)(1) to

dismiss Count II because the taxpayer had not paid an August

22, 1995 supplemental tax assessment related to the same

1990 tax year.’ The taxpayer never claimed a refund based

*° IRC§ 6511 provides tax returns can only be amended

within 3 years of the date it is filed or 2 years from the date payment

is made.

‘. In Gomez v. Toledo, 446 U.S. 635 (1980) this court held

plaintiff need only allege the elements of his claims and is not re-

quired to anticipate defenses or counterclaims to the complaint.

on overpayment of the 1995 tax assessment. Nor did the

defendant ever counterclaim the alleged $1,680 tax debt as an

offset to the $1,939 refund claim. No federal rule of civil

procedure exists that would defeat a tax refund suit based on

“a” fully paid tax assessment. Based on this Court’s decision

in Flora and the 8th Circuit's decision in Pfeiffer the district

court lacked subject matter jurisdiction to hear the

defendant’s 1995 deficiency claim of $1,680.'? Only the U.S.

Tax Court has jurisdiction to redetermine the tax for the

entire 1990 tax year, the district court’s jurisdiction is limited

to the fully paid 1991 tax assessment for which the refund

claim was made. /d.

In 1997, the IRS commenced levy action against Mr.

Gardner based on the 1995 tax assessment, despite failing to

comply with the mandatory tax deficiency notice requirements

of 26 U.S.C.§6212 and §6213{a). On June 9, 1997, pursuant

to IRC§ 6213(a) Mr. Gardner filed a motion to enjoin the IRS

from all collection action until the required tax deficiency

notice was mailed to “his last known address”. The motion

also stated since compliance with the tax deficiency notice

requirements is a mandatory pre-requisite for the IRS to

assess any tax, no legal tax debt arose because IRC §6213(a)

prohibited the IRS from making the 1995 tax assessment. '*

*° Flora at 166; Pfeiffer 129 & n.10)

*? No levy or proceeding in court for the collection of tax

shall be made, begun, or prosecuted until a tax deficiency notice has

been mailed to the taxpayer.

*“No assessment of a deficiency shall be made, begun, or

prosecuted until a tax deficiency notice has been mailed to the

taxpayer .

Accordingly, the district court had jurisdiction to determine

the claimed over payment of the 1991 tax assessment.

The taxpayer subsequently withdrew his Temporary

Retraining motion when the IRS released the levy. However,

the district court declined to consider the taxpayer’s Motion

for Permanent Injunction. About a month later, the IRS

mailed a second levy notice to Mr. Gardner, who on July 10,

1997 filed another motion for a Temporary Restraining Order.

On July 11, 1997, the district court held it lacked

subject matter jurisdiction over the 1990 tax refund suit

because “Mr. Gardner has not fully paid the 1990 tax

assessment.” A33. However, no claim for refund was ever

made on a “1990 tax assessment” or existed in this case, only

on a “1991 tax assessment which was fully paid and an

alleged 1995 tax deficiency existed. A32. Furthermore, this

Court held in Shapiro'* and Laing ‘* that a taxpayer is not

required to pay a tax assessment when the notice deficiency

procedures of IRC § 6212 and § 6213(a) have been violated.

The district court also denied Mr. Gardner’s motions

for injunctive relief based on lack of subject matter

jurisdiction over violations of the mandatory statutory

deficiency notice statutes. The taxpayer timely filed a Rule

59(e) motion for reconsideration which the district court later

considered moot.A21.

‘Shapiro, at 616.

Laing at 184 n.27.

On December 23, 1997, Mr. Gardner filed Gardner

III which was a separate complaint asserting violations of his

Sth Amendment rights to due process and violations of the

mandatory Deficiency Notice Requirements of 26 U.S.C.§ |

6212 and §6213(a).A19-20. The taxpayer also filed a |

separate motion for a Temporary Restraining Order and

Preliminary Injunction on December 23, 1997 which was

denied for failure to demonstrate the traditional equitable

requirements of irreparable injury and lack of adequate

remedy at law.A20-21,A3.

On February 18, 1998, the taxpayer amended his

complaint to include the traditional equitable grounds for

injunctive relief.A.L The defendant filed a motion to dismiss

Mr. Gardner’s original complaint pursuant to Rule 12(b)(1)

for failure to demonstrate a need for injunctive relief. The

district court subsequently struck Mr. Gardner’s amended

complaint upon the basis that the plaintiff needed leave of

court, despite the fact defendant never answered the

- complaint and Rule 15(a) allows an amendment without

leave.A3.

On January 29, 1999, the district court dismissed Mr.

Gardner’s complaint for lack of subject matter jurisdiction. ‘

The court held the taxpayer “must meet the traditional |

equitable requirements of demonstrating irreparable injury and

lack of adequate remedy at law, which he has not even t

plead.” A20-21. The district court also dismissed Gardner’ s :

complaint for failure to prosecute under Rule 41(b) because {

of his medical absence from the first motion hearing. This |

dismissal permanently barred Mr. Gardner’s recovery of his

$1,939.00 tax overpayment because of the 3 year and 2 year

tax refund claim limitations rules set forth in IRC§ 651 1(a).

On May 19, 2000, the D.C. Circuit reversed the Rule

12(b)(1) and Rule 41(b) dismissals in Gardner II]. However,

the D.C. Circuit declined to reverse its sua sponte summary

affirmance of the jurisdictional dismissal of the taxpayer’s

refund action based on the alleged 1995 tax debt. IRC§

6213(a) clearly provides no tax assessment can occur prior

to mailing a deficiency notice to the taxpayer’s “last known

address”. The precise issues in Gardner I and Gardner III

were the IRS’ failure to comply with the mandatory tax

deficiency notice requirements of IRC §6212 and §6213(a).

Accordingly, the alleged 1995 tax assessment was void by

statute and no tax debt existed which would divest the district

court of subject matter jurisdiction to determine whether the

1991 tax assessment was overpaid and the taxpayer was

entitled to a refund.

REASONS FOR GRANTING THE WRIT

I. D.C. CIRCUIT DECISION DIRECTLY CONFLICTS

WITH LANDMARK DECISIONS OF THIS COURT.

Tax revenue is the life blood of the government and

touches the lives of every citizen. National and fundamental

tax issues that were resolved by this Court in Flora,

Shapiro'’, and Laing'* will be undermined by the D.C.

Circuit’s decision in this case if it is allowed to stand.

The D.C. Circuit’s decision is in direct conflict with

the landmark tax refund case of this Court in Flora, and the

“Shapiro, at 616. (certiorari granted from

the District of Columbia Circuit.)

““raing at 184 n.27.

tax deficiency cases of Shapiro and Laing Each of these

cases determines the jurisdiction of the U.S. District Courts in

refund suits or the U.S. Tax Court in tax deficiency actions.

Since Mr. Gardner filed a refund action in the district court it

should be obvious that the full payment rule of Flora

determines the district court’s jurisdiction over this case.

The lower courts’ failure to subordinate itself to this

Court’s clear and binding decisions without explanation or

any attempts to distinguish these identical cases, are such a

departure from the usual and accepted judicial practice that it

warrants exercise of this Court’s supervisory powers. The

exercise of this Court’s supervisor powers on the issues

presented will undoubtedly assist other courts to correctly

interpret the law.

A. District Court Has Jurisdiction Over The Fully Paid

1991 Tax Assessment Upon Which the Refund Is

Claimed.

The district court’s jurisdiction to hear and decide the -

taxpayer's 1990 tax refund action arises under the laws of the

United States. This Court in Flora held 28 USC§1346(a)(1)

confers subject matter jurisdiction on the district court only

when “the tax assessment” upon which the refund is based

was been fully paid prior to the commence of the action. A6.

Here, the 1991 tax assessment was fully paid prior to filing

the refund claim.A32. Thus, the district court is vested with

jurisdiction over this tax refund action. Flora.

In Gomez”? this Court stated plaintiff need only allege

the elements of his claims and is not required to anticipate

1°Gomez v. Toledo, 446 U.S. 635 (1980).

defenses or counterclaims, i.e. a second tax assessment for the

same tax year that was not paid. Thus the district court’s

jurisdiction is limited to the full payment of the specific 1991

tax assessment upon which the claim is based. Flora:

§1346(a).

Once it is established that the 1991 tax assessment

was paid in full then the court determines whether the

taxpayer overpaid that 1991 tax assessment and therefore, is:

entitled to a tax refundA32.. Accordingly, the district court

had jurisdiction over the tax refund action and no jurisdiction

over the IRS’ 1995 tax deficiency claim. Flora, 175. |

B. District Court Lacks Subject Matter Jurisdiction Over

1995 Tax Deficiency

In tax deficiency cases this Court held in Shapiro and

Laing that a valid notice of deficiency is a mandatory pre-

requisite to assessment that deficiency. This Court also held in

Shapiro and Laing that a taxpayer is not required to pay a tax

assessment when the notice deficiency procedures of IRC §

6212 and §6213(a) have been violated. /d.616; Jd 184 n. 27.

The burden is on the IRS to prove that it complied

with the deficiency notice requirements before a tax debt is

created requiring payment. The IRS provided no evidence

that a valid notice of deficiency was mailed to the taxpayer’s

last known address or that the unpaid 1995 tax assessment

was anything more than an offset to any tax refund due the

taxpayer. An offset, is a defense to payment and has no legal

effect on the district court’s jurisdiction over the 1990 refund

action. Gomez. Only the U.S. Tax Court has jurisdiction over

tax deficiency actions and have authority to redetermine the

unassessed tax for the entire tax year.”°

The lower courts need the guidance of this Court in

reconciling the tax refund principles decided in Flora with the

tax deficiency notice statute reviewed by this Court in

Shapiro and Laing. The D.C. Circuit was unable or unwilling

to distinguish the jurisdictional tax issues and statutes

surrounding this tax refund action with a tax deficiency

action.

C. D.C. Circuit Traditionally Had Difficulty Grasping

Tax Deficiency Concepts.

The D.C. Circuit traditionally had difficulty grasping

the tax deficiency concepts as evidence by this Court

acceptance of certiorari from the D.C. Circuit in Shapiro.

Now the D.C. Circuit has difficulty in applying the deficiency

notice concept in Laing and Shapiro to the tax refund

principles espoused by this Court in Flora. Accordingly,

intervention by this Court would ensure that the lower courts

recognize and preserve the separate jurisdictions of the Tax

Court and District Courts as conferred by Congress.

Intervention by this Court would provide clear guidance to

the lower courts that a valid tax deficiency notice must be

mailed to the taxpayer before a valid tax assessment requiring

full payment under F/ora must be made. Furthermore

granting certiorari would protect the rights of all taxpayers by

- addressing the distinction between a tax refund proceeding

and a tax deficiency proceeding in one precedential decision.

2°Guthrie v. Sawyer, 970 F.2d 733, 736-37 (10th Cir.

1992).

D. Rule 41(b) Dismissal For Medical Absence From

Motion Hearing Was An Abuse of Discretion.

In Link” this Court preserved the issue of whether a

single absence from a court proceeding could ever warrant

dismissal for failure to prosecute under Rule 41(b). In this

case, the D.C. Circuit held the district court abused its

-discretion. Therefore, Gardner I should be reversed for an

abuse of the district court’s discretion as was Gardner II and

III by the D.C. Circuit. Camp v. C&P Tel. Co., 692 F.2d 120,

125 (D.C.Cir. 1982).

Il. IMPORTANT QUESTIONS OF FEDERAL LAW

NOT DECIDED BY THE D.C. CIRCUIT

The fundamental issue of the subject matter

jurisdiction of the U.S. Tax Court and the U.S. District Court

and the scope of their authority to decide multiple tax issues

for a given tax year, was not addressed by the D.C. Circuit.

The effect of the D.C. Circuit’s decision on the

jurisdiction of the district court would have a devastating

adverse impact on the rights of all taxpayers and further blur

the jurisdiction of the District Court and Tax Court in tax

matters.

Jurisdiction in the U.S. Tax Court is based on mailing

a valid deficiency notice to the taxpayer’s last known address.

This requirement would be eliminated by reliance on the D.C.

Circuit decision. The IRS would no longer have to prove it

complied with the mandatory notice deficiency requirements

but could merely assert it was in compliance. That assertion

21 Link v. Wabash RR, 375 U.S. 626,

633-634 (1962)

could be raised at any time by the IRS to defeat a tax refund

claim. It would also give the District Court subject matter

jurisdiction over all tax issues for the entire tax year even

though Congress exclusively granted the Tax Court such

jurisdiction. Flora 166; Pfeiffer at 129.

The D.C. Circuit’s decision in effect repeals the 2

year and 3 year refund claims rules of IRC§ 6511 and this

Court’s decision in Lundy.” Under IRC 6511, the taxpayer

must file a tax refund claim with the IRS within 3 years

(including extensions) from the date the tax return was filed

or two years from the date a payment is made. In the instant

case, the taxpayer filed his claim that he overpaid the 1991 tax

assessment with the IRS based on the 3 years plus extension

tule (4 years from the date the return was filed) and timely

filed this action in the district court.” Thus, the district court

has subject matter jurisdiction under Flora. Id 175.

If the taxpayer’s 1990 tax refund action were

dismissed for non-payment of the 1995 tax assessment, as the

D.C. Circuit has held, the taxpayer would be permanently

barred from ever obtaining a refund for overpayment of the

1991 tax assessment as this Court held in Lundy. Id 857 Both

the 2 year and 3 year claim rules would bar the taxpayer’s

refund claim on overpayment of the 1991 tax assessment.

The taxpayer would be required to pay the 1995 tax

*2 Lundy v. IRS 45 F.3d 856, 858 (4th

Circuit 1995), rev’d on other grounds, 116

S.Ct.647 (1996).

*3 Theodore D. Peyser, Tax Management Port-

folio No. 631, Refund Litigation, p.A-1.; Smith

v. Sperling, 354 U.S. 91, 93, nl (1957).

OER AES NS

assessment and then file a new refund claim with the IRS for

overpayment of that assessment. Under the 2 year rule, any

refund would be limited to payment of the 1995 tax

assessment. The 1991 tax assessment payment would not

merge with payment of the 1995 tax assessment, therefore, a

refund claim on overpayment of the 1991 tax assessment

would be permanently barred because it would not be made

within either 2 years of payment or 3 years from the date the

return was filed. /d. “Nothing in the text of the statute

[§6511] implies that a taxpayer who complied fully with the

complex web of procedures must exhaust his administrative

remedies twice merely because the government decided to

assess an additional tax in response to the taxpayer's

administrative claim.”

On the other hand, under Pfeiffer and Flora each

payment of a tax assessment is a separate cause of action.”

The district court has jurisdiction to decide whether the

taxpayer is entitled to a refund for overpayment of the 1991

tax assessment. Furthermore, when the 1995 tax assessment

is paid, the taxpayer could claim an overpayment from the

IRS within 2 years from the date of that payment. IRC 6511.

These separate causes of actions were recognized by the 8th

Circuit in Pfeiffer and are consistent with IRC§6511 and

Flora..

The D.C. Circuit’s decision converts the mandatory

deficiency notice statutes of IRC § 6212 and § 6213(a) to

24 Keeter v. U.S. 957 F. Supp. 1160, 87,715

(Ed.Cal. 1997)

25 pfeiffer, 129; Flora 166.

merely optional procedures. If we were to accept the D.C.

Circuit’s decision in Gardner I & III, we would sacrifice the

harmony of our carefully structured twentieth century system

of tax litigation. Flora. This Court should grant a writ of

certiorari when its landmark precedential decisions are not

followed or distinguished and could change the tax

administrative system as we now know it.

fi. DIRECT CONFLICTS BETWEEN D.C.

CIRCUIT’S DECISION & OTHER CIRCUITS.

| Direct conflict exists between the Sth”, 8th, 9th?’

Circuits and the D.C. Circuit concerning the interpretation of

the income tax refund tax laws and the scope of the district

court’s jurisdiction. Contrary to the D.C. Circuit’s decision,

the 8th Circuit in Pfeiffer”* held,

The Code stops short of compelling

consolidation of all tax disputes for a given

year in the district court. Jd. /29.

Pfeiffer is consistent with this Court’s decision in Flora and

the statutory refund scheme established by Congress in IRC §

6511 and §6512. The D.C. Circuit decision, on the other

hand, gives the district court jurisdiction over the entire tax

year and requires each tax assessment to be fully paid before

“© Gustin v. U.S., 876 F.2d 485 (5th 1989).

“” Russell v. U.S., 592 F.2d 1069, 1072

(9th Cir.1979).

** pfeiffer Company v. United States, 518

F.2d 124, 130 (8th Cir.1975).

it has jurisdiction over any claim that an assessment was Over

paid.

The Sth the Circuit in Gustin, addressed the district

court’s jurisdiction over tax refund suits when the IRS alleges

a tax deficiency. The Sth Circuit held even if the district court

had no subject matter jurisdiction over. the original refund

complaint, it could and must resolve the issues raised by the

complaint when those issues are presented by a counter claim,

resting on an independent jurisdictional basis. It held the

district court erred when it refused to review the refund claim.

Here, the D.C. Circuit refused to hear the refund claim

based on the mere assertion of a counterclaim amount. Since

no counterclaim was formally made the alleged tax deficiency

had no effect on the court’s jurisdiction over the refund

action. Flora at 177.

The 9th Circuit’s decisions in Russell also held, the

Tax Court has jurisdiction over the entire tax year while the

District Court has limited jurisdiction over the fully paid tax

assessment. The Tax Court’s jurisdiction trumps that of the

District Court if a refund suit is commenced in the District

Court and subsequently a petition is filed in the Tax Court for

a redetermination of the tax for the same tax year.

Intervention by this Court will resolve splits among

the Circuits on these issues and result in a uniform

interpretation of the law.

/ +

IV. DENIAL OF CONSTITUTIONAL GUARANTEE

CALLS FOR EXERCISE OF THIS COURT’S

SUPERVISORY POWERS.

“It is a necessary and well-settled rule that the exercise

of jurisdiction by this Court to protect constitutional rights

can not be declined when it is plain that the fair result of a

decision is to deny rights.” The fundament rights of equal

protection of the laws and due process of law are conferred,

not by legislative grace, but by Constitutional guarantee.

In this, the taxpayer was an employee of the IRS and

because of his employment he was not afforded the same

protections under the law that were afforded other taxpayers.

Neither the district court nor D.C. Circuit protected Mr.

Gardner’s rights to equal protection under the law or rights to

due process of law.

A. Taxpayer Denied Equal Protection of The Laws.

26 U.S.C§ 6213(a) clearly prohibits the IRS from

assessing any tax or levying to collect any tax upti] it has

mailed a notice of the deficiency to the taxpayer. In a rush to

terminate the employment of the sole remaining minority in

the IRS Sacramento District Counsel’s Office and to prevent

Mr. Gardner from challenging the proposed IRS

determination that was a basis for his termination, the IRS did

not afford Mr. Gardner an administrative appeal nor mail him

a notice of its intent to assess a tax deficiency. The tax

deficiency notice would have allowed this taxpayer to file a

29 Rogers v. Alabama, 192 U.S. 230 (1904); Smithsonian

Institute v. St Johns, 214 U.S. 19, 27 (1909).

petition in the U.S. Tax Court to redetermine the taxes for the

entire 1990 tax year. Instead, no tax deficiency notice was

mailed to the taxpayer, no opportunity to contest the

proposed tax deficiency existed, and the IRS assessed and

then levied Mr. Gardner’s bank account. No notice, no

Opportunity to be heard occurred, simply because the

taxpayer was an attorney for the IRS. Mr. Gardner should

not lose his rights as a taxpayer merely because he was an IRS

employee and the lower courts would not enforce his

fundamental rights to notice and an opportunity to be heard.

B. Taxpayer Denied Due Process of Law.

There is no issue more important in this Nation, then

to protect the Constitutional guarantees of due process

afforded its citizens. This Court in Dent” stated the

principles of due process come from the laws of England

where it was designed to protect the subject against the

arbitrary actions of the crown and place him under the

protection of the law. The district court has traditionally

accepted its role to protect individual rights, but not in this

case. The appellate courts traditionally review district court

decisions to ensure the Constitutional and statutory

guarantees made to citizens are protect. However, here, the

panel that reviewed and decided Gardner /I/ refused to

reverse the sua sponte dismissal of the panel that reviewed

and decided Gardner / , and the full court declined to

reconcile the intra Circuit conflict. Those issues were deferred

to this Court for a decision and petitioner respectfully

requests this Court review this case.

*°Dent v. West Virginia, 129 U.S. 114, 123 (1889)

IRC§ 6212 was designed to ensure taxpayers like,

Mr. Gardner received notice of the IRS’ intent to assess a

tax deficiency prior to the actual tax assessment. IRC

§6213(a) was designed to protect Mr. Gardner from the

surprise 1995 tax assessment and afford him the opportunity

to be heard and offer evidence of the proposed tax assessment

prior to the actual 1995 tax assessment. But the protections

the law provides, were not afforded Mr. Gardner.

Nor was the 1995 IRS tax assessment determined void

by the lower courts for violating the mandatory deficiency

notice requirements of IRC §6212. Instead, the 1995 tax

assessment was incorrectly used to divested the district court

of its jurisdiction over the taxpayer’s claim that he overpaid

the 1991 tax assessment when the district court had

jurisdiction of the tax refund suit.§1346(a)(1);. Flora at 177.

C. This Court Exercises Jurisdiction To Protect

Constitutional Rights.

This Court held in Chapman and Navigation that a

court must exercise its jurisdiction over rights arising under

statutes of the U.S. enacted to protect constitutional rights.

Chapman v. Goodnow, 123 U.S. 540, 548 (1887); Navigation

Co v. Homestead, 123 U.S. 552 (1887). 26 U.S.C.§ 6212

and §6213(a) were enacted to protect Mr. Gardner’s Sth

Amendment right that the government can not deprive him of

his property without due process of law. The IRS violated the

fundamental Sth Amendment guarantee to protect Mr.

Gardner from arbitrary government actions. This is the Court

of last resort and is the only place were the Constitutional

guarantee to protect Mr. Gardner’s rights can be redeemed.

Court to exercise its supervisory powers to ensure that Mr.

to ensure that Mr. Gardner receive the full canopy of

protection under the law afforded other citizens. Jd. Full

protection of the law for Mr. Gardner would disavow his

supervisor's statement that he has no rights!

CONCLUSION

The ultimate sanction of an unwarranted dismissal has

deprived taxpayer/Gardner of his fundamental rights. Mr.

Gardner has been arbitrarily denied access to the district court

even though Congress has conferred jurisdiction on the

district court to hear his 1990 tax refund action. 28 U.S.C.§

1346(a); Flora. Mr. Gardner seeks only to have his 1990 tax

refund case adjudicated on the merits. Justice would require

no less than for this Court to redeem the rights guaranteed

Mr. Gardner by our Constitution and federal statutes. Those

guarantees can only be redeemed by this Court granting

certicrari.

Respectfully submitted this 4th day of December , 2000.

ABruce E. Gardner. Esq.

—APPENDIX A.

United States Court of Appeals

For The District of Columbia Circuit

Argued April 13, 2000 Decided May 19, 2000

No. 99-5065

Bruce E. Gardner

Appellant

United States of America.

Appellee.

Appeal from the United States District

for the District of Columbia

(No.97cv03075)

Bruce E. Gardner, appearing pro se, argued the cause and

filed the briefs for appellant.

Annette M. Wietecha, Attorney, United States Department of .

Justice, argued the cause for appellee. With her on the brief

were Gilbert S. Rothenberg, Attorney, and Mary Lou Leary,

United States Attorney at the time the brief was filed.

Loretta C. Argrette, Assistant Attorney General, and Edward

T. Perelmuter, Attomey, entered appearances.

Before: Edwards, Chief. Judge, Henderson and Rogers,

Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: Bruce Gardner, appearing pro se,

appeals the District Court’s dismissal of his complaint for

failure to prosecute and for lack of subject matter jurisdiction.

Mr. Gardner alleges that the Internal Revenue Service ("the

ervice”) unlawfully levied his property without first sending

a notice of federal tax deficiency to his last known address.

The District Court dismissed this complaint sua sponte for

failure to prosecute under Fed. R. Civ. P. 41(b) (“Rule

41(b)“) and, upon defendant’s motion, for lack of subject

matter jurisdiction. On appeal, the Service defends only the

Rule 41(b) dismissal, abandoning any claim that federal

courts lack subject matter jurisdiction over Mr. Gardner’ s

cause of action.

The District Court understandably sought to sanction

Mr. Gardner for failing to appear at a motions hearing. Given

applicable Supreme Court and D.C. Circuit precedent,

however, the District Court’s dismissal in the context of the

instant case constitutes an abuse of discretion. Mr.Gardner’s

nonappearance, while arguably irresponsible, did not justify a

Rule 41(b) dismissal. In addition, the District Court

erroneously found that it lacked subject matter jurisdiction

over the complaint. Accordingly, we reverse and remand for

further proceedings on the merits.

IL. BACKGROUND

Mr. Gardner formerly worked as an attorney in the

Office of Chief Counsel to the Service at the Treasury

Department. He was terminated for his alleged failure to

comply with federal and state tax laws. Mr. Gardner filed

three complaints before the District Court, all related to his

——

compliance with federal and state tax laws; all were dismissed

by the District Court. One of the complaints was a tax refund

action, the dismissal of which this court summarily affirmed

on October 8, 1999. The second complaint, appealed along

with the instant case, seeks damages from a variety of

defendants for allegedly unlawful disclosures of Mr.

Gardner’s’s private tax information. The instant case

involves Mr. Gardner’s pro se complaint, filed December 23,

1997, claiming that the Service unlawfully levied Mr.

Gardner’ bank account for an alleged 1990 tax deficiency of

almost $4,000 without sending him a notice of deficiency and

an opportunity to challenge the assessment in the United

States Tax Court. Mr. Gardner, seeking to enjoin the Service

from levying his property, bases his complaint on 26 U.S.C.§

6212(a) (Supp.IV 1998). Actions based on §6213(a) to

enjoin the Service’s assessment of a tax deficiency before the

Service mails a notice of deficiency to the taxpayer are

exempt from the Anti-Injunction Act of Internal Revenue

code, 26 U.S.C.§ 7421(a) (Supp.IV 1998).

On February 18, 1998, the Service filed a motion to

dismiss for lack of subject matter jurisdiction pursuant to

Fed.R.Civ.P. 12(b)(1) (“Rule 12(b)(1)”), arguing that Mr.

Gardner must meet traditional equitable requirements ( i.e,

demonstrate irreparable injury and the lack of an adequate

remedy at law) as a prerequisite to obtaining injunctive relief

under 6213(a). On the day the Service filed its motion, Mr.

Gardner filed an amended complaint affirmatively pleading

grounds for equitable relief. The District Court struck the

amended complaint from the record, because Mr. Gardner

had not sought leave to file.

After delays that no one attributes to Mr. Gardner, the

District Court scheduled a hearing on January 27, 1999, to

consider the motion to dismiss, along with motions to dismiss

filed in Mr. Gardner’s other two cases. On January 21, Mr.

Gardner moved to continue the motions hearing, contending

that a continuance was necessary because he had the flu and

he had suffered burns during a fire in his home. The District

Court, after a tele-conference held on January 22, denied Mr.

Gardner’s motion. The District Court indicated that it would

accommodate Mr. Gardner’s physical condition during the

hearing. Mr. Gardner failed to appear in court on January 27

and he telephoned the court later that evening to state that he

had slept through the hearing.

On January 28, Mr. Gardner filed a motion to

reschedule the hearing; the motion also offered an explanation

for his absence from the January 27 hearing. He included a

doctor’s note stating that, on January 21, his physician

treated him for syncope and bronchitis, prescribed antibiotics,

and instructed Mr. Gardner to get bed rest. He also made

several claims to the effect that his illness, the fire in his

home, and his intense preparation for the motions hearing had

combined to deprive him of necessary sleep and stamina.

According to plaintiff, he was so disoriented that, until he

heard the evening news on January 27, he was under the

impression that it was January 26.

On January 29, the District Court denied Mr.

Gardner’s motion to reschedule the hearing. The court also

granted defendant’s motion to dismiss on two grounds. First,

the District Court dismissed the complaint under Rule 41(b)

for failure to prosecute the complaint. See Gardner v. United

States, Civ. Act. No. 97-3075, Mem Op. & Order at 2

(D.D.C. Jan. 29, 1999). The court noted that it previously

had denied Mr. Gardner’s motion for continuance and that

Mr. Gardner had stated that he would appear on January 27.

See id. At 1-2. The court also declared that it had not

intended to hear arguments on January 27, because it already

had decided to issue orally its ruling dismissing Mr. Gardner’s

complaint for lack of subject matter jurisdiction. See id. At 2.

The District Court found that it lacked jurisdiction

because Mr. Gardner had failed to demonstrate

irreparable injury and a lack of an adequate remedy at

law. See id. At 4 [emphasis added.]. The court dismissed as

moot Mr. Gardner’s motion for reconsideration of the order

striking his first amended complaint from the record.

Mr. Gardner moved for reconsideration, further

detailing the events leading up to his absence from the

hearing. He stated that on January 12, 1999, he began taking

Nyquil and Chlortrimeton, an antihistamine, and that he was

without heat for one day in January because his house lost

electricity during an ice storm, exacerbating his illness. Mr.

Gardner also revealed that, on January 18, a fire had broken

out in his children’s room and he had sustained third-degree

burns to his hands while dragging a burning mattress from the

house. The court denied Mr. Gardner’ motion for

reconsideration. This appeal followed.

IL DISCUSSION.

A. Rule 41(b) Dismissal

Under Rule 41(b), a court may dismiss an action” [flor

failure of the plaintiff to prosecute or to comply with...any

order of court”. In the instant case, the District Court

dismissed the complaint because Mr. Gardner failed to attend

the January 27, 1999, motions hearing. We review for abuse

of discretion. See Bristol Petroleum Corp. V. Harris, 901

F.2d 165, 167 (D.C. Cir. 1990). While this is a deferential

standard, we have made it clear that, “ under certain

circumstances, dismissal may be an unduly severe sanction for

a single episode of misconduct.” Id. A District Court may

dismiss under Rule 41(b) “only after less dire alternatives

have been explored without success.” 7rakas v. Quality

Brands, Inc. 759 F.2d 185, 187 (D.C.Cir.1985).

The Supreme Court established the framework for

reviewing a sua sponte dismissal for failure to prosecute in

Links v. Wabash Railroad Co, 370 U.S. 626 (1962). In

Links, plaintiffs counsel missed a pretrial conference but did

not inform the court of his impending nonattendance until the

day of the conference. See id. At 627-28. The District Court,

after reviewing the history of the case (including plaintiff's

repeated untimely responses to defendant’s interrogatories),

found that plaintiff s counsel did not provide a reasonable

explanation for his nonappearance and dismissed the

complaint for failure to prosecute. See id. At 628-29.

The Court affirmed the dismissal, failing to find an

abuse of discretion because” (1) the District Court relied only

in part on counsel’s nonappearance, (2) the excuse offered by -

counsel was inadequate; and (3) “it could reasonably be

inferred from his absence, as well as from the drawn-out

history of the litigation, that petitioner had been deliberately

proceeding in dilatory fashion.” Jd. At 633 (footnote and

citation omitted). The Court did not reach “whether

unexplained absence from a pretrial conference would alone

justify a dismissal with prejudice if the record showed no

other evidence of dilatoriness on the part of the plaintiff.” /d.

At 634 (first emphasis added).

As we previously have noted, it is important to recall

that the “lawyer’s default [in Links]... was merely the

culmination of a protracted course of dilatory tactics and

other improper behavior in litigation that had dragged on for

six years.” Camp v. C&P Tel. Co, 692 F.2d 120, 122

(D.C.Cir.1982) (footnote omitted). In contrast, this court has

held “that dismissal is rarely if ever appropriate when there is

but a single instance of attorney-misconduct,” as in the instant

case. Id. This is because the sua sponte dismissal of a lawsuit

on the merits is “‘a drastic step, normally to be taken only

after unfruitful resort to lesser sanctions.”* Jd. At 123

(quoting Jackson v. Washington Monthly Co., 569 F.2d 119,

123 (D.C.Cir. 1978)); see also Bristol Petroleum Corp..; 901

F.2d at 167 (“[D]ismissal is in order only when lesser

sanctions would not serve the interests of justice.”).

There are three basic justifications for dismissal

because of attorney misconduct: (1) prejudice to the other

party: (2) failure of alternative sanctions to mitigate the

severe burden that the misconduct has placed on the judicial

system; and (3) deterrence of future misconduct. See Shea v.

Donohoe Constr. Co., 795 F.2d 1071, 1074 (D.C.Cir. 1986).

These justifications are not easily met. Prejudice, for

instance, must be “so severe[] as to make it unfair to require

the other party to proceed with the case.” Jd. Similarly, a

malfeasant party places a severe burden on the judicial system

if “the court [is required] to expend considerable judicial

resources in the future in addition to those it has already

litigants in the presentation of their cases.” Id. At 1075-76.

The final rationale, deterrence, justifies dismissals when there

is some indication that the client or attorney consciously fails

to comply with a court order cognizant of the drastic

ramifications. See id. At 1078.

Defendants have alleged no prejudice from Mr.

Gardner’s failure to appear at the January 27 conference.

And given the District Court’s observation that it would not

hear argument at the hearing and its intention to resolve the

case on jurisdictional grounds despite Mr. Gardner’s failure

to appear, his nonappearance cannot be said to have

interfered with the orderly administration of th trial court’s

business. Cf.id. At 1076-77 (concluding that “repeated

failure to attend status conferences” in that case did not

constitute prejudice to the judicial system). Of the

enumerated justifications for sua sponte dismissal, then, only

the last, deterrence, has any application to the instant case.

Mr. Gardner’s situation, however, is not one to which

the deterrence rationale speaks with great eloquence. There

are three reasons for this: first, this was Mr. Gardner’s only

failure to comply with an order of the District Court; second,

there is no evidence that Mr. Gardner acted in bad faith by

failing to appear at the hearing; and third, the trial court

provided no warning to Mr. Gardner of the consequences of

nonappearance. We also note that there is nothing in the

record to indicate that the District Court considered

alternative sanctions for Mr. Gardner’s misbehavior.

The District Court did not identify any prior instance

of misconduct on Mr. Gardner’s part. Indeed, the court

observed that Mr. Gardner’s absence was “atypical.” That

Mr. Gardner had never before failed to comply with the

District Court’s orders argues in favor of reversal. See

Trakas, 759 F.2d at 188. In fact, Mr. Gardner provided a

supportable explanation for why he failed to attend the

hearing. Finally, the trial court did not warn Mr. Gardner that

the case would be dismissed if he failed to appear. “Absent

such advance warning [of the consequences], dismissal to

drive lesson home , we think, is more akin to overkill than

judicial discretion.” Camps, 692 F.2d at 125. In short,

dismissal in this case was unwarranted.

We appreciate the difficulty faced by the District

Court in this case. Mr. Gardner had file three complaint

before the court. One of the complaints consisted of 44

counts and named as defendants the United States, the

Service, the State of California, and several individual Service

employees, among others. Prior to dismissing the complaint

in the instant case, the District Court had denied Mr.

Gardner’s motion for a continuance, and had been assured

that Mr. Gardner would attend the January 27 hearing. In

this circumstance, we cannot doubt that Mr. Gardner’s failure

to appear was an annoying occurrence. Nonetheless, given

that this was Mr. Gardner’s only “failure... to prosecute

or to comply with...any order of court,” Fed.R.Civ.P.

41(b), we find that the District Court abused its

discretion in dismissing his case. [emphasis added]. Here

we do not have a case of an unexplained absence from the

motions hearing, or any evidence that Mr. Gardner

deliberately sought to delay adjudication of the merits of his

complaints. Moreover, the record does not show that the

District Court considered the availability of a lesser sanction.

While the District Court’s decision in the instant case may not

“‘comprehend[] a pointless exaction of retribution.”” Camps,

692 F.2d at 123 (quoting Jackson, 569 F.2d at 123), it does

cross the line to abuse of discretion. See, e.g., Berry v.

District of Columbia, 833 F.2d 1031, 1037 (D.C.Cir. 1987)

(reversing dismissal where attorney failed to file a pretrial

brief by specified date, failed to attend a status conference,

and failed to file a pleading specifically requested by the

court); Tolbert v. Leighton, 623 F.2d 585, 587 (9th Cir.

1980) (finding abuse of discretion where the only evidence of

dilatoriness was attorney’s failure to attend a pretrial

conference, the court had not warned that nonappearance

would result in a dismissal, and the case was still “young”).

We emphasize that we do not call into question the

District Court’s denial of both Mr. Gardner’s motion for a

continuance and his motion to reschedule the hearing,

because those decision are not before us. Nor does our

disposition of this case review Mr. Gardner tax refund

complaint, the dismissal of which this court summarily

affirmed on October 8, 1999 [emphasis added.]. We hold

only that, given the particular facts of this case, the District

Court abused its discretion in dismissing Mr. Gardner’s

complaint for failure to prosecute.

B. Subject Matter Jurisdiction

The District Court also dismissed Mr. Gardner’s

complaint under Rule 12(b)(1), holding that Mr. Gardner was

required to plead equitable grounds for relief in order to

obtain an injunction under 26 U.S.C.§ 6213(a). Before this

court, the Government does not defend the District Court's

Rule 12(b)(1) dismissal. Accordingly, there is no longer any

dispute between the parties as to whether a federal court may

entertain jurisdiction over Mr. Gardner’s complaint. This

does not moot the issue, however. We are a court of limited

jurisdiction and must be satisfied through our own inquiry of

our power to hear this dispute. See Mansfield, Coldwater &

Lake Michigan Ry. v. Swan, 111 U.S. 379, 382 (1884). In

contrast to the issue of personal jurisdiction, parties may not

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waive or concede a federal court’s subject matter jurisdiction.

See Jackson v. Ashton, 33 U.S. (8 Peters) 148, 148-49

(1834) (reversing for lack of subject matter jurisdiction even

though appellee had “no objection to the court’s proceeding

in the case.”).

Mr. Gardner seeks an injunction preventing the

Service from levying his bank account to assess an alleged

deficiency in his 1990 federal tax return. The Anti-Injunction

Act, a provision of the Internal Revenue Code, states,

“[e}xcept as provided in section []... 6213(a), ... no suit for

the purpose of restraining the assessment or collection of any

tax shall be maintained in any court by any person, whether or

not such person is the person against whom such tax was

assessed.” 26 U.S.C §. 7421(a). The District Court must

dismiss for lack of subject matter jurisdiction any suit that

does not fall within one of the exceptions to the Anti-

Injunction Act. Mr. Gardner seeks to bring his suit within

one of §7421(a)’ exceptions, arguing that the Service violated

§6213(a) by levying his bank account without first mailing

him a notice of deficiency. For the purposes of deciding

whether we have jurisdiction over Mr. Gardner’s complaint,

we will accept as true his allegation that the notice of

deficiency was never mailed to him.

Section 6213(a) established the Services’ authority

and responsibility to send a notice of deficiency to a taxpayer

prior to initiating proceedings to assess the deficiency. With a

notice of deficiency in hand, a taxpayer may file suit in Tax

Court challenging the assessment, and the Service is

prohibited from enforcing the assessment until the Tax

Court’s decision regarding the petition for review becomes

final. See id. §6213(a). If the taxpayer does not file suit in

All

Tax Court in the time allotted after receipt of the notice of

deficiency, the Service may, among other things, impose a

levy upon the taxpayer’s property, after notice, to recover

unpaid taxes. See id. §6331(a){(1994).

There is some dispute among the circuits whether a

taxpayer must allege traditional grounds for equitable relief to

establish a prima facie claim under §6213(a) (i.e., irreparable

harm and lack of an adequate remedy at law.). The District

Court, following the Ninth Circuit, dismissed the complaint,

because Mr. Gardner failed to allege any equitable grounds

for relief. See Mem. Op. & Order at 4 (citing Elias v.

Connett, 908 F.2d 521, 523 (9th Cir. 1990)). The Ninth

Circuit is in the lead among those circuits that imply this

requirement in §6213(a) claims, with the circuit’s’s reasoning

set out in Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313 (9th_

Cir. 1982).

In Cool Fuel, the District Court had granted summary

judgment for the Service where a taxpayer alleging a violation

of §6213(a) had not met the requirements for equitable relief.

The Ninth Circuit affirmed, finding both a presumption that

equitable grounds be met for a court to issue an injunction

and “that section 6213 does not abolish equitable tents to

support injunctive relief.” Jd. (Relying on Weinberger v.

Romero-Barcelo, 456 U.S. 305 (1982)). The court

emphasized §6213(a)’s permissive language. See Cool Fuel,

685 F.2d at 313 (noting that §6213(a) provides that an

assessment based on a notice of deficiency “may be enjoined”

by a court). Because a taxpayer retains the right to institute a

refund suit after payment of taxes, and the taxpayer in Cool

Fuel could afford to pay the disputed tax prior to an

adjudication of the alleged deficiencies, the court found that

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an equitable remedy was not available. The Third and

Eleventh Circuits have followed the Ninth Circuit’s rule. See

Flynn v. Eggers, 786 F.2d 586, 591 (3rd Cir. 1986); Lovell v.

United States, 795 F.2d 976, 977 (11th Cir. 1986).

The Tenth Circuit, Guthrie v. Sawyer,, 970 F.2d 733,

736-37 (10th Cir. 1992), reached a different result. Having

reviewed the circuits’ competing opinions, we think that the

Tenth Circuit clearly has the best of the argument.

Accordingly, we hold, in accord with Guthrie, that

[t{he purpose of the statutory exception [in §6213(a)]

is to preserve the taxpayer’s right to litigate his tax

liability in Tax Court before paying the tax. If the

‘availability of a refund suit after payment prohibits the

taxpayer from obtaining an injunction to protect his

right to litigate first, that right is virtually meaningless.

Under this approaches, this right would available only

upon a showing that the taxpayer could not pay the

tax. We have difficulty believing that Congress

intended to give with one hand and take back with the

other ;

970 F.2d at 736.

The result that we reach is not contrary to the

principles announced in Romero-Barcelo. In that case, the

Supreme court merely observed that courts should “not

lightly assume that Congress has intended to depart from

established [equitable] principles.” 456 U.S. at 313. In

Romero-Barcelo, however, the Court expressly distinguished

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), in

which the Court held that “Congress had foreclosed the

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exercise of the usual discretion possessed by a court of

equity” when it passed the Endangered Species Act, 16 U.S.

C. §§1531-1544. Romero-Barcelo, 456 U.S. AT 313 (citing

Tennessee Valley Authority, 437 U.S. at 173). According to

the Romero-Barcelo Court, the difference was that in Hill,

the statute providing the basis for the challenge “contain[ed]

a flat ban] on the challenged activity. 456 U.S. at 314.

Similarly, here §6213(a) flatly prohibits the activity

challenged by Mr. Gardner. See 26 U.S. §6213(a) (providing

that the Service shall begin “no levy or proceeding” to collect

on a notice of deficiency until a period after the notice has

been mailed to the taxpayer). This statutory scheme, in

combination with the Guthrie Court’s reasoning, convinces

us that Congress did not intend that litigants need establish

equitable grounds for injunctive relief under §6213(a).

We decline to follow Cool Fuel for a third reason.

The Cool Fuel court cited Bob Jones University v. Simon,

416 U.S. 725, 742 n.16 (1974), to support its finding that

“congressional history [of §6213(a)] is barren of indicated

intent to abandon historical principles of equity

jurisprudence.” 685 F.2d at 313. Bob Jones University

involved an interpretation of the Anti-Injunction Act,

however, not §6213(a). In fact, the Court explicitly noted

that “[nJone of the exceptions in §7421(a) is relevant to this

case.” Bob Jones University, 416 U.S. at 732 n.6. Therefore,

it is of no moment that the Court in Bob Jones University

held that traditional equitable principles were applicable to an

action under the Anti-Injunction Act that did not fall into any

of the enumerated exceptions. Of greater note, we think, is

the Supreme Court’s failure to discuss traditional grounds for

equity jurisdiction when holding that taxpayers to whom the

Service had not mailed notices of deficiency are entitled to

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bring suit under §6213(a). See Laing v. United States, 423

U.S. 161, 183-85 & 184 n.27 (1976).

Ill. CONCLUSION

For the reasons articulated herein, we reverse the

District Court’s decision and remand for proceedings on the

merits.

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_._ APPENDIX BO

United States Court of Appeals

For The District of Columbia Circuit

No 99-5080 September Term,

1998

96cv00523

Bruce E. Gardner &

Benita D. Sparks-Gardner,

Appellants,

United States Court of Appeals

Vv. For District of Columbia Circuit

Filed

United States of America, Oct 8, 1999

Appellee. CLERK

BEFORE: Silberman, Henderson, and Tatel, Circuit Judges

ORDER

Upon consideration of the motion for summary

reversal, the response thereto, and the reply, it is

ORDERED that the motion for summary reversal be

denied, and, on the court’s own motion, the District Court’s

July 11, 1997, July 21, 1997, January 29, 1999, and March 3,

1999, orders dismissing appellant’s complaint and denying

reconsideration be summarily affirmed. Appellant’s filing of a

motion for summary reversal placed the merits of this appeal

before court. The merits of the parties’ positions are so clear

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as to warrant summary action. See

vy. Stanley, 819 F.2d 294, 297 (D.C.Cir. 1987) (per curiam);

Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir. (Per

curiam), cert. denied, 449 U.S. 994 (1980). The District

Court correctly determined that appellant could not seek

a refund without first making full payment of his income

tax liability for the year [emphasis added] . See Flora v.

United States, 357 U.S. 63 (1958), aff'd on reh’g, 362 U.S.

145 (1960).

The Clerk is directed to withhold issuance of the

mandate herein until seven days after disposition of any timely

petition for rehearing or petition for rehearing en banc. See

Fed.R.App.P.41(b); D.C.Cir.Rule 41.

Per Curiam

Initialed, Initialed, Initialed

Al7

__ ALPEN CO .......

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRUCE E. GARDNER, )

Plaintiff, )

) Civil Action No. 97-3075

V. ) (EGS)

)

UNITED STATES, ) FILED

Defendants. ) JAN 29 1999

) Nancy Mayer-\Whittington. Clerk

_) US. DISTRICT COURT

EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE,

INTRODUCTION

On January 21, 1999, plaintiff filed a motion to

continue the motions hearing that was scheduled for January

27, 1999. In his motion and during a telephone conference

with opposing counsel on January 22, 1999, plaintiff

communicated to the “Court that he was suffering from the

flu and had slightly burned his hands while extinguishing a

fire. The Court denied plaintiff's motion during the telephone

conference, but only after considering that several of the

defense counsel reside in the State of California and had

incurred substantial costs in traveling to Washington, D. C

for the hearing and after determining that plaintiff seemed

healthy enough to appear in court.

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During the telephone conference, the Court noted that

plaintiff's injuries did not require him to seek the medical

services of a doctor or travel to a hospital. Plaintiff did not

sound congested or wheezy and, in the view of the Court,

was not unclear in his thoughts. In an effort to accommodate

plaintiff, the Court told plaintiff that he could remain seated

during the arguments and that adequate water would be

provided for him at counsel table. At that time, plaintiff

indicated he would be present in court. Thereafter, the Court

decided to issue an oral ruling on pending motions and

dispense with argument.

When plaintiff failed to appear for argument on

January 27, 1999, the Court stated that it would issue written

rulings on all motions and that, in addition to other reasons

for dismissal, plaintiffs complaint would be dismissed

pursuant to Fed.R.Civ.P. P. 41(b) for failure to prosecute.

Later that evening, plaintiff telephoned the Court and stated

that he was on medication that caused him to oversleep and

miss the motions hearing. Despite plaintiff s contact with the

Court, the Court dismissed the case pursuant to Rule 41(b) as

well as for the reasons set forth below.’

FACTUAL BACKGROUND

In conjunction with Civ. No. 96-523, plaintiff filed

this complaint against the Untied States, alleging that

administrative actions taken by the defendant deprived

plaintiff of his property without due process of law.

1.Piaintiff’s note-The court was presented with a doctor’s note on January

28, 1999 with a motion to reset the hearing date for the next day. The court

rejected the motion and doctor’s note from the record by returning them to

plaintiff.

Al9

Specifically, plaintiff claims that defendant failed to provide

notice of an alleged 1990 tax deficiency, therefore not

affording plaintiff an opportunity to challenge the alleged

deficiency prior to the tax assessment. Defendant United

States has filed a motion to dismiss pursuant to Fed.R.Civ.P.

12(b)(1), arguing that plaintiff has not met his burden of

demonstrating a need for injunctive relief.

DISCUSSION

I. Motion To Dismiss

The Anti-Injunction provision of the Internal Revnue

Code, 26 U.S.C.§7421,' generally bars suits to enjoin the

assessment or collection of taxes. Section 7421(a), however,

is subject to several exceptions, one of which is that it does

not forbid suits to enjoin the assessment of a deficiency, or a

levy or proceeding in court for its collection, if the taxpayer

has not been mailed a notice of deficiency and afforded an

opportunity to secure a final Tax Court determination. See

423 U.S. 161, 185 n.27 (1976).

“[O]nce a taxpayer satisfies one of the exceptions to the Act,

he is no longer jurisdictionally barred from seeking an

injunction... The taxpayer, however, must, in addition to

satisfying an exception to the-Act, also allege sufficient

grounds to warrant equitable relief.” Elias v. Connett, 908

F.2d 521, 523 (9th Cir. 1990) (citations omitted). The effect -

1. 26 U.S.C.§7421(a) states that “[e]xcept as provided in sections

6015(d), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6672(b),

6694(c), 7426(a) and (b)(1), 7429(B), AND 7436, no suit for the

purpose of restraining the assessment or collection of any tax shall

be maintained in any court by any person, whether or not such person

is the person against who such tax was assessed.”

A20

on the plaintiff is that although he may be able to prove that

he did not receive notice from the United States, this

exception merely allows him to seek an injunction. He still

must meet the traditional equitable requirements of

demonstrating irreparable injury and lack of adequate remedy

at law, which he has not even plead. For these reasons,

defendant’s motion to dismiss is GRANTED.

Il. Motion for R sdecati

Plaintiff has filed a motion for reconsideration of the

order striking plaintiff's first amended complaint from the

record. Plaintiff merely argues that a motion to dismiss is not

a responsible pleading and that he had an absolute right to

amend compliant without leave of court. Given the

recommendation of granting defendant’s motion to dismiss,

plaintiff s motion for reconsideration is DENIED AS MOOT.

III. Motion for a Status Hearing

Plaintiff has also filed a motion for a status hearing on

the status of the February 1998 complaint for a permanent

injunction against the IRS. Given the motions hearing held

on January 27, 1999, this motion is DENIED AS MOOT:

CONCLUSION

For the foregoing reasons, defendant’s motion to

dismiss is granted, and the above-captioned case is

DISMISSED WITH PREJUDICE.

1/29/99 c

Date EMMET G. SULLIVAN

, United States District Judge

A21

APPENDIX D

EXCERPT FROM DECISION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRUCE E. GARDNER, et al )

Plaintiffs )

) Civil Action No. 96-523

v. ) (EGS)

)

UNITED STATES, ) FILED

Defendants. ) JAN 29 1999

) Nancy Mayer-\Whittington. Clerk

__) US.DISTRICT COURT

MEMORANDUM OPINION & ORDER

EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE,

INTRODUCTION

On January 21, 1999, plaintiff filed a motion to

continue the motions hearing that was scheduled for January

27, 1999. In his motion and during a telephone conference

with opposing counsel on January 22, 1999, plaintiff

communicated to the “Court that he was suffering from the

flu and had slightly burned his hands while extinguishing a

fire. The Court denied plaintiff s motion during the telephone

A22

conference, but only after considering that several of the

defense counsel reside in the State of California and had

incurred substantial costs in traveling to Washington, D. C

for the hearing and after determining that plaintiff seemed

_healthy enough to appear in court.

During the telephone conference, the Court noted that

plaintiff s injuries did not require him to seek the medical

services of a doctor or travel to a hospital. Plaintiff did not

sound congested or wheezy and, in the view of the Court,

was not unclear in his thoughts. In an effort to accommodate

plaintiff, the Court told plaintiff that he could remain seated

during the arguments and that adequate water would be

provided for him at counsel table. At that time, plaintiff

indicated he would be present in court. Thereafter, the Court

decided to issue an oral ruling on pending motions and

dispense with argument.

When plaintiff failed to appear for argument on

January 27, 1999, the Court stated that it would issue written

rulings on all motions and that, in addition to other reasons

for dismissal, plaintiff s complaint would be dismissed

pursuant to Fed.R.Civ.P. P. 41(b) for failure to prosecute.

Later that evening, plaintiff telephoned the Court and stated

that he was on medication that caused him to oversleep and

miss the motions hearing. Despite plaintiff's contact with the

Court, the Court dismissed the case pursuant to Rule 41(b) as

well as for the reasons set forth below.’

1 .Piaintiff’s note- The court was presented with a doctor’s note on

January 28, 1999 with a motion to reset the hearing date for the next day.

The court rejected the motion and doctor’s note from the record by

returning them to plaintiff.

A23

FACTUAL BACKGROUND

On March 18, 1996 plaintiff and his wife filed this

complaint, in which they sought to recover refund of federal

income taxes allegedly owed to them for the year 1989, 1990,

1991, and 1993. In Count II plaintiffs claimed that they were

entitled to a refund of their 1990 income tax, which,

according to them, had been erroneously assessed and

collected. On July 11, 1997, this Court granted defendant's

motion to dismiss on the grounds that the plaintiffs had not

paid the assessed tax in full, thereby failing to fulfill one of the

requirements of subject matter jurisdiction.

On July 17, 1997, plaintiffs moved for reconsideration

of the Court’s Order dismissing Count II and filed a motion in

which they sought to withdraw all remaining counts. On July

21, 1997, the Court granted the motion to withdraw the

remaining counts, reformed the caption to include only

plaintiff and not plaintiff's wife, and dismissed the case.

Plaintiff has filed a motion for reconsideration pursuant to

Fed.R.Civ.P. 60(b)(1), (4) & (6).' Defendant filed its

response to plaintiff's motion for reconsideration of the

dismissal of count II of July 25, 1997.

DISCUSSION

I. Legal Standard

“(T]he District court’s grant or denial of relief under

operation of the judgment.”

A24

Rule 60(b), unless rooted in an error of law, may be reversed

only for abuse of discretion.” Computer Professional v. U.S.

Secret Service, 72 F.3d 897, 903 (D.C.Cir. 1996).

IL aa

Plaintiff moves to vacate the Court’s July 11 order

pursuant to Fed.R.Civ.P. 60(b)(1), arguing that the court has

jurisdiction over this tax-refund case pursuant to 28 U.S.C.

§1346(a)’ and Flora v. United States, 362 U.S. 145 (1960),

and that the court was mistaken in holding that it did not.

Plaintiff s argument ignores the majority opinion in Flora,

which held that §1346(a)(1), correctly construed, requires full

payment of the assessment before an income tax refund suit

can be maintained in a federal District Court. Id. At 177.

Thus, although the federal District Courts have original

jurisdiction over tax-refund cases, they lack subject matter

jurisdiction until the challenged tax assessment was paid and

that the court did not consider this documentation in its

earlier ruling. Therefore, plaintiff's motion to vacate

pursuant to Fed.R.Civ.P. 60(b)(1) is DENIED.

Il.

Plaintiff also moves to vacate the Court’s July 11

order pursuant to Fed.R.Civ.P. 60(b)(4), arguing that the

court’s failure to exercise jurisdiction renders the July 11

order void. Courts have held that “[a] judgment is void, and

therefore subject to relief under Rule 60(b)(4), only if the

2. 28 U.S.C. 1346(a)(1) provides that the District Courts shall have

jurisdiction, concurrent with Court of claims, of “[a}ny civil action against

the United States for the recovery of any internal-revenue tax alleged to

have been erroneously or illegally assessed or collected, or any penalty

claimed to have been collected without authority or any sum alleged to have

been excessive or in any manner wrongfully collected under the internal-

revenue laws...”

AS _

court lacked jurisdiction or in circumstances in which the

court’s action amounts to a plain usurpation of power

constituting a violation of due process.” Houlst v. Houlst, 57

F.3d 1, 6 (1st Cir. 1995); see also Combs v. Nick Garin

Trucking, 825 F.2d 437, 442 (D.C.Cir. 1987) (“Relief under

Rule 60(b)(4) is not available merely because a disposition is

erroneous. Rather, before a judgment may be deemed void

within the meaning of the rule, ‘it must be determined that the

rendering court was powerless to enter it.””) citations

omitted). In this case, the court ruled that it did not have

jurisdiction, thus effectively preventing the issuance of a void

order. Therefore, plaintiff's motion to vacate pursuant to

Fed.R.Civ.P. 60(b)(4) is DENIED.

IV. Motion to Vacate Pursuant to Fed.R Civ. P. 60(b)\(6)

Finally, plaintiff moves to vacate the Court’s July 11

order pursuant to Fed.R.Civ.P.. P. 60(b)(6), arguing that the

interests of justice dictate that the Court provide equitable

relief. The D.C. Circuit has stated that Rule 60(b)(6) may not

be used as a substitute for an appeal. “Therefore, a party

who has not pursued an appeal may obtain relief under rule

60(b)(6) only if there are ‘circumstances... so extraordinary as

to bring him within Klapprott’ or Rule 60(b)(6).’”” Twelve

3. 335 U.S. 601 (1949). In Klapprott, the defendant’s citizenship and

certificate of naturalization was revoked pursuant to the entry of a default

judgment. Four years later, the defendant sought to vacate the judgment on

the ground that the judgment had been entered while he was wrongfully

imprisoned by the government. The Supreme Court, reversing both the

District court and the court of appeals, hailed that the defendant was entitled

to a trial on the merits of the case. The Court paid particular attention to the

“extraordinary” circumstances surrounding the case: The basis of the

defendant’s petition was not that he had neglected to act in his own defense,

but that in jail as he was, weakened from illness, without a lawyer in the

A26

John Does v. District of Columbia, 841 F.2d 1133, 1141

(D.C.Cir. 1988); see also Savage v. District of Columbia, No

94-7191, 1994 WL 704380, at * (D.C.Cir. Nov. 23, 1994)

(Appellant “ has not demonstrated that ‘extraordinary

circumstances’ are present in this case to warrant Rule

60(b)(6) relief.”). Plaintiff in the instant case has not

demonstrated any extraordinary circumstances that would

warrant relief under Fed.R.Civ.P. 60(b)(6) and could have

filed an appeal of the Court’s dismissal, which he has not. ”

Therefore, plaintiffs motion to vacate pursuant to Fed.R.

Civ.P. 60(b)(6) should be DENIED.

CONCLUSION

For the foregoing reasons, plaintiff's motion to vacate is

DENIED, and the above-captioned case is DISMISSED

WITH PREJUDICE.

1/29/99 -S-

EMMET G. SULLIVAN

United States District Judge

denaturalization proceedings or funds to hire one, disturbed and fully

occupied in efforts to protect himself against the gravest criminal charges,

he was no more able to defend himself in the New Jersey court than he

would have been had he never received notice of the charges.

2 . Plaintiff’s note- Plaintiff initially filed a motion for reconsideration on

July 17, 1997 pursuant to Rule 59(e) which the District court never

addressed. Subsequently, plaintiff filed a Rule 60(b) motion to set a side the

prior judgment. The District court has confused the unaddressed Rule 59(e)

motion with the decided Rule 60(b) motion.. Furthermore, since the court

never ruled on the rule 59(e) motion, the time period to appeal the court’s

decision to the D.C. Circuit had not yet expired.

A27

mee ss) | 8

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRUCE E. GARDNER )

Plaintiff, ) Civil Action No.

BENITA D. SPARKS-GARDNER _) 1:96CV00523 (EGS)

Plaintiffs )

V. )

)

UNITED STATES OF AMERICA, ) FILED

) JUL21 1997

Defendant. _) NANCY MAYER-WHITTINGTON,

U.S. District Court

ORDER

This matter is before the Court upon Plaintiffs’

Unopposed Motion to Withdraw Counts I, Ill, & IV from

their complaint.

UPON CONSIDERATION of the entire record in

this case, including Plaintiffs’ Unopposed Motion to

Withdraw Count I, III, and IV, any opposition, exhibits, or

declarations filed and for good cause shown, it is by the

Court this 18th, day of July, 1997, hereby:

ORDERED that Plaintiffs’ Motion to Withdraw

Counts I, Il, & IV from their complaint is GRANTED.

A28

IT IS FURTHER ORDERED that the caption shall be

reformed to Bruce E. Gardner, Plaintiff v. United States,

defendant. **°

DATE -S-

EMMET G. SULLIVAN

UNITED STATES DISTRICT JUDGE

Noticed:

Bruce E. Gardner Richard Gilman, Esq.

P.O. Box 6183 U.S. Department of Justice

Washington, D.C. 20044 P.O. Box 227

Washington, D.C. 20044

** There being no further issues before the Court, this

case is DISMISSED. When the defendant has filed its

response to plaintiff's motion for reconsideration of the

dismissal of Count II, the Court will address that motion.

=i-

EMMET G. SULLIVAN, U.S. District Judge

A29

{Rss EY SoS ce renee ete eee

ow.) Se ee

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRUCE E. GARDNER, and

BENITA D. SPARK-GARDNER

)

Plaintiffs, )

) Civil Action No. |

v. ) 96-0523 (EGS)

)

UNITED STATES OF AMERICA; ) FILED

Defendant. ) JUL 11 1997

) Clerk

) US. DISTRICT COURT

_) District of Columbia

ORDER

Pending before the Court is defendant’s motion to dismiss

Count II of plaintiffs’ complaint on the grounds that the

Court lacks subject matter jurisdiction. Also, pending before

the Court are plaintiffs’ motions for a permanent injunction

and for a temporary restraining order relating to Count II

which seeks an order enjoining the defendant from plaintiffs’

bank account funds.

Plaintiffs filed this action on March 18, 1996, seeking

recovery of taxes paid for 1989, 1990, 1991 and 1993. Count

II involves Plaintiff Bruce Gardner’s 1990 federal income tax

A30

return and corresponding claim for refund.’

Mr. Gardner filed his 1990 federal income tax return

on or about May 21, 1991. That return reflected an

overpayment and Mr. Gardner received a tax

refund [emphasis added]. On or about April 15, 1995, Mr.

Gardner amended his prior tax refund claim by notifying

defendant of an additional tax refund owed to him in the

amount of $1,939.00. On August 22, 1995, following an

audit with respect to his 1990 federal income taxes, an

assessment was made against Mr. Gardner which totaled

$1,680.00. Mr. Gardner has not paid this tax assessment.

On or about June 9, 1997, plaintiffs moved for a

Temporary Restraining Order concerning a levy issued

against Mr. Gardner’s bank account for the 1990 tax liability.

The levy was released on June 9, 1997, and at a hearing on

June 10, 1997, plaintiffs withdrew the motion for a

Temporary Restraining Order. Plaintiffs subsequently filed a

Motion for Permanent Injunction seeking an order

permanently enjoining defendant from taking any action

against Mr. Gardner with respect to the 1990 tax

assessment.[Note Added+ No 1990 tax assessment was in

issue in this case.] On July 9, 1997, Mr. Gardner received

notice of a second levy on his account. Plaintiffs filed a

second motion for a Temporary Restraining Order on July 10,

1997.

1.Count I involves Plaintiff Gardner’s 1989 federal income tax return and a

claim for refund for that year. The government has also filed a motion to

dismiss this Count. Count III and Count I'V involve plaintiff Gardner’s

1991 and federal income tax return and claim for refund, and plaintiffs’

1993 federal income tax return and claim for refund, respectively.

A31

Count II of plaintiffs’ complaint challenges the denial

of Mr. Gardner’s 1990 income tax refund claim of

$1,939.00. However, Mr. Gardner has not fully paid the

1990 tax assessment(sic). Before an individual can seek a

refund in this Court for overpayment of taxes, he must fully

pay his outstanding liability. See Flora v. United States, 362

U.S. 145, 150-51 (1960) (“We conclude that the language of

§1346(a)(1) can be more readily construed to require

payment of the full tax before suit than to permit suit for

recovery of a part payment.”); United States v. Williams, __

U.S. __, 115 S.Ct. 1611, 1619 (1995) (“Section 1346(a)(1) is

a post t deprivation remedy, available only if the taxpayer has

paid the government in full.” (Citing Flora, 362 U.S. at 150-

51)); CLR. vLundy, __ U.S. _, 116 S.Ct. 647, 656

(1996) (noting that the Supreme Court in Flora held that “28

U.S.C §1346(a)(1) requires full payment of the tax

assessment before taxpayer can file a refund suit in District

Court”); District of Columbia v. Berenter, 466 F.2d 367,

375-76 (D.C.Cir. 1972) (“[T]he Supreme Court [in Flora]

held that a taxpayer must pay the full amount of am assessed

income tax deficiency before he may challenge its correctness

in a refund suit.”). [emphasis added] A failure to do so

deprives the Court of subject matter jurisdiction. See Flora,

363 U.S. at 150-51.

Plaintiffs insist that because the 1990 tax assessment

(sic) is invalid, Mr. Gardner has no 1990 income tax

liabilities that should be paid before this Court has jurisdiction

over this matter. However, plaintiffs’ argument begs the

question. Whether the assessment is invalid would be one of

the issues to be decided by the Court. The law clearly

provides that before the Court can determine the validity of

the tax assessment, the tax liability pursuant to the tax

A32

assessment must be fully paid. See Flora, 362 U.S. at 150- -

51; Williams, _ U.S. at __, 115 S.Ct. At 1619 (1995);

Lundy, __ U.S. at ___, 116 S.Ct. At 656; Berenter, 466

F.2d at 375-76. Accordingly, it is hereby

ORDERED that defendant’s motion to dismiss Count

II is GRANTED;; it is further

ORDERED that plaintiffs’ motions for injunctive

relief are DENIED.

DATE: 7/10/97 -S-

EMMET G. SULLIVAN

U.S. DISTRICT JUDGE

A33 —

__ APPENDIX G_

BRUCE E. GARDNER

Attorney At Law

P.O. BOX 6183

Washington, D.C. 20044-6183

(202) 271-0552

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRUCE E. GARDNER, }

1410 Kingsgate Street } Civil Action No. 1:97CV03075

Mitchellville, Maryland } (EGS)

20721 }

} COMPLAINT FOR VIOLATION

Plaintiff, } OF NOTICE REQUIREMENTS OF

} 5th Amendment USCA,

v. } 26 U.S.C.§§6212, 6312(a)

}

THE UNITED STATES )

OF AMERICA }

} Demand Jury Trial

Defendant. }

} VERIFIED COMPLAINT

FIRST AMENDED COMPLAINT’

1. Plaintiff, Bruce E. Gardner, is a citizen of the

United States and was a resident of Washington, D.C. when

the complaint was originally filed; defendant is the United

States of America.

1. The bold face portion of this complaint reflects the amends made

to the original.

A34

2. This is a suit arising from arbitrary administrative

actions taken by the defendant's agent, the Internal

Revenue Service (IRS), to deprive plaintiff of his property in

violation of his guaranteed U.S. Constitutional Sth

Amendment to due process of law. The IRS failed to give

plaintiff notice of an alleged 1990 income tax deficiency,

therefore, not affording him an opportunity to challenge the

arbitrary taking of his property prior to the recordation

of the invalid 1990 tax assessment and illegal tax levy and

seizure.

3. Subject matter jurisdiction is founded on 28

U.S.C.§ §1331, 1340, 1361, 1346(a), and 26 U.S.C.§§

6212(a), 6213(a). Sections §6212(a) and 6213(a) of the

Internal Revenue Code (IRC) override the anti-injunction

statute of 26 U.S.C.§7421, therefore, allowing the

defendant's actions to be enjoined. Laing v. United States,

423 U.S. 161, 184 n.27 (1976).

4. In pertinent part §6213(a) provides for an

injunction against IRS tax collection activities when

defendant has not mailed an 26 U.S.C.§6212 notice of tax

deficiency to plaintiff's "last known address",

notwithstanding 26 U.S.C. §7421(a). D'Andrea v.

Commissioner, 263 F.2d 904, 907 (D.C. 1959) [Last

known address of taxpayer is address on power of

attorney filed with IRS.]

5. A substantial likelihood of success on the merits

of this case exists because the:

(a) defendant can not legally assess taxes

without first issuing a notice of deficiency to a taxpayer's

“last known address" (IRC §6213(a), IRC §6502),

A35

(b) defendant did not mail said notice to

plaintiff's last known address as required by the Sth

Amendment and IRC §6212, and

1990 income tax was made on August 22, 1995, 129 days

after the expiration of the statute of limitations for

making the tax assessment. (IRC §6501(a), (e)(4)). .

6. Irreparable harm flows from the defendant's

arbitrary violations of plaintiff's Sth Amendment U.S.

Constitutional rights. Jolly vy. Couglin, 76 F.3d 468, 482

(2nd Cir. 1996) [constitutional violation per se result in

irreparable injury]. The government's arbitrary action

and total disregard of plaintiff's Sth Amendment rights to

due process of law can not be adequately compensated

monetarily. Schnell v, City of Chicago,, 407 F.2d 1084,

1086 (7th Cir.1969).

7. A permanent injunction is appropriate here,

because defendant violated

_ (a) plaintiff's U.S. Constitutional rights,

(b) federal laws regarding collection of

federal income taxes and

Accordingly, the relief sought would not cause any

substantial harm to defendant not contemplated by

Congress.

8. The public has a compelling interest against

arbitrary government actions and the public has a

guaranteed right to be afforded due process of law prior

to deprivation of property by the government. Fuentes v.

Shevin, 407 U.S. 67 (1972). The U.S. Senate Finance

A36

Commiitee Oversight Hearing on the IRS (9/97) heard

the atrocities committed by the IRS against its citizens.

The testimony at the hearings exposed the IRS' practice

of arbitrarily violating the U.S. Constitution, federal

laws, and its own policies. The public interest as

exemplified by the creation of the U.S. Constitution

prohibits arbitrary government acts by the IRS, in

administering the tax laws.

9. Defendant in bad faith exercised its taxing

power over plaintiff in order to assist plaintiff's former

IRS employer in its wrongful termination against

plaintiff. Some of the allegations in the adverse personnel

action concern deductions taken by plaintiff on his 1990

federal income tax return. Plaintiff a former, GS 14-step

6, General Attorney (Tax) with the IRS' Chief Counsel's

Office was wrongfully removed from his position based

on the verified deductions claimed on his 1990 federal tax

return.

10. This is an action to enjoin the defendant from

continuing in force and effect both a purported assessment

and /evies against the property of plaintiff allegedly to be

applied to federal income taxes due for the calendar year

1990 and for a mandatory injunction ordering the return to

plaintiff of his property, including money, seized pursuant to

such levies

No Notice of Tax Defici Mailed t

11. No valid income tax assessment or legal

collection action can occur without first mailing a notice

of the tax deficiency to a taxpayer's “last known

A37

address".

12. On or about April 15, 1991 plaintiff mailed his

1990 U.S. Individual Income Tax Return (Form 1040) to

defendant's Austin, Texas Service Center. The address

reflected on the return was P.O. Box 262771, Houston,

Texas 77207-2771 (Houston address).

13. Plaintiffs 1991 and 1992 Form 1040 were

respectively mailed to defendant's Ogden, Utah Service

Center on April 15, 1992 and April 15, 1993 and each

notified defendant that his new address was P.O. Box 2165,

North Highlands, CA 95660 (North Highlands address).

14. Plaintiff's 1990 Form 1040 was examined by the

IRS's Houston, Texas IRS office.

15. By December of 1993 the IRS was concerned

about the expiration of the April 15, 1994 statute of

limitation period in which it had to assess plaintiff's 1990

income taxes. Defendant informed plaintiff of its intent to

issue a notice of deficiency for the 1990 tax year.

16. On or about December 28, 1993, plaintiff agreed

in writing (Form 872) with defendant to extend the 1990 tax

assessment period from April 15, 1994 to April 15, 1995, and

waive his statute of limitation defense, as long as, defendant

did not mail a notice of deficiency for the 1990 tax year to

him prior to April 15, 1995.

17. Form 872 contained both plaintiff's former

Houston address and his current North Highlands address.

A38

18. On November 28, 1994, plaintiff notified IRS by

certified letter numbered P 002 126 260, to mail all future

written correspondence regarding his 1990 Form 1040 to

3101 First Avenue, Sacramento, California (Sacramento

address). Pomeroy vy. United States, 864 F.2d 1191, 1193-

1194 (Sth Cir.1989). Exhibits 1 & la.

: 19. Defendant was also notified by the power of

attorney form (Form 2848) enclosed with his letter to "Send

all originals of notices and all other original written

communications regarding this tax year [1990] to his

representative at the stated address contained therein with a

copy to the taxpayer.” (Sacramento address) Exhibit 2.

D'Andrea v. Commissioner, 263 F.2d 904, 907

(D.C.Cir.1959) [IRS notified of new mailing address.]

20. On December 13, 1994, defendant received

written notification of where plaintiff wanted all future

written communications mailed in accordance with Crum

vy. Commissioner, 635 F.2d 895, 899-900 (D.C.Cir. 1980).

Exhibit 3.

21. Neither plaintiff's representative nor plaintiff

received a notice of deficiency from defendant on or before

April 15, 1995 or at any other time during the 1995 calendar

year.

22. Defendant did not mail a notice of deficiency for

the 1990 tax year to plaintiff's Sacramento address.

23. Defendant is prohibited from collecting 1990

income taxes from plaintiff since it did not mail a notice

of the 1990 tax deficiency to his Sacramento address.

A39

United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert.

denied, 469 U.S. 830 (1984). Abeles vy. Commissioner, 91

T.C. 1014, 1026, 1028 (1988)

IRS Made Arbitrary 1990 Supplemental Tax Assessment.

24. No 1990 supplemental income tax assessment

can be made against plaintiff unless preceded by mailing

a valid notice of deficiency to plaintiff's “last known

address".

25. On August 22, 1995, IRS made a supplemental

"quick assessment" in the amount of $1,680.00 against —

plaintiff for a purported 1990 income tax deficiency. Ex 4.

26. The 1990 supziemental income tax assessment

was not preceded by mailing a notice of deficiency to

plaintiff's “last known address".

27. The IRS' supplemental 1990 tax assessment

was arbitrary and not supported by any provisions of

federal tax laws.

28. The issuance of a statutory 1990 notice of

deficiency by the IRS is a jurisdictional prerequisite for

admission to the United States Tax Court.

29. The IRS failed to send by registered or certified

mail the 1990 statutory notice of deficiency to plaintiff, as

A40

required by IRC §6212.

30. The IRS's failure to send a notice of the 1990

supplemental income tax deficiency to plaintiff deprived him

of his right to challenge the proposed 1990 income tax

deficiency in the United States Tax Court prior to its

assessment.

31. Plaintiff was denied his 5th Amendment due

process rights of notice and an opportunity to be heard prior

to the seizure of his property by the government. Laing,

: j 90-2 USTC 50,438;

supra;

Jensen y. United States, 835 F.2d 196 (9th Cir.1988).

32. Statutory injunctive relief pursuant to IRC

6213(a) and otherwise, is appropriate against the IRS'

arbitrary tax levy and seizure of plaintiff's property

because the IRS never mailed a notice of deficiency to

plaintiff's “last known address".

Limitations

33. The statute of limitations for all tax assessments

regarding the 1990 tax year expired on April 15, 1995. IRC

§6501 (c)(4).

34. On August 22, 1995, IRS made a "quick"

supplemental 1990 income tax assessment against

plaintiff for the 1990 tax year.

35. This quick tax assessment was made after the

expiration of the mutual agreement between IRS and

plaintiff to extend the statute of limitations to April 15,

A4l

19985.

36. The IRS' quick supplemental 1990 income tax

assessment against plaintiff was made 129 days after the

expiration of the statute of limitations. —

37. The IRS' quick supplemental 1990 income tax

assessment against plaintiff was barred by the statute of

limitations. IRC§6501(a).

38. The IRS' quick supplemental 1990 income tax

assessment against plaintiff was arbitrary and capricious

and not supported by the law.

39. The quick IRS supplemental 1990 income tax

assessment made against plaintiff was invalid. No legal

collection activity can be based on a invalid supplemental

1990 income tax assessment. IRC §6502(a).

Levy & Sei (Plaintiff's P -y Was Arbit

40. The perquisite for levy and seizure of property

rests on a valid tax income assessment which is made

within the statute of limitation period. IRC §6502.

41. Defendant is permanently barred from

collecting taxes for the 1990 tax year from plaintiff based

on the invalid 1990 supplemental income tax assessment

and the statute of limitation bar.

42. Defendant by notice dated December 11, 1997

informed plaintiff that it would take money from his

bank account in the amount of $3,931.60 based on the

A42

August 22, 1995 supplemental income tax assessment for

the 1990 tax year. Said notice of levy was received by

plaintiff on December 16, 1997. Exhibit 5.

43. Citibank informed plaintiff in a letter dated

December 17, 1997 that on January 5, 1998 it would

turnover his property to defendant pursuant to the IRS

levy. Exhibit 6.

44. After December 16, 1997, Plaintiff no longer

had access to the $3,931.60 that was levied and later

seized by the IRS on January 5, 1998.

45. Defendant's determination to levy and seize

plaintiff's property as herein set forth, was arbitrary,

capricious, an abuse of discretion, in excess of statutory

authority, and contrary to plaintiff's statutory and

constitutional rights. |

46. Plaintiff has suffered irreparable injury as a

result of defendant's unconstitutional acts, bad faith,

omissions, and total disregard of the law.

WHEREFORE, plaintiff prays for:

1. permanent injunction enjoining defendant from

collecting on or seeking to enforce by lien, levy, sale, or

otherwise, the purported August 22, 1995 income tax

assessment made against plaintiff for the 1990 tax year;

2. an order directing defendant and any agency or

employee thereof to return all property heretofore seized

pursuant to the August 22, 1995 tax assessment;

A43

3. a release of all of the levies; and

4. Costs and such other relief as this Court deems

appropriate.

I, declare that to the best of my knowledge and belief under

penalties of perjury that all of the foregoing information

contained in this complaint are true and correct.

Respectfully Submitted,

February 18, 1998 -S-

Bruce E. Gardner,Esq.

P.O. Box 6183

Washington, D.C. 20044

(202) 271-0552

A44

——APPENDIX H

PAUL S. BESSON

ATTORNEY AT LAW

311 N STREET S.W.

Washington, D.C. 20024

(202) 863-0143

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRUCE E. GARDNER, }CASE NUMBER:

P.O. Box 6183 } 1:96CV00523 .

Washington, D.C. 20044. }

Plaintiff, }JUDGE:

Vv } Emmet G. Sullivan

BENITA D. SPARKS-GARDNER & }

BRUCE E. GARDNER }DECK TYPE

8522 Scotswood Way }Civil General

Antelope, CA 95843 }

' }DATE STAMP

} 03/18/96

UNITED STATES OF AMERICA } COMPLAINT FOR

Washington, D.C. } TAX REFUND

- } DEMAND OF

oy } JURY TRIAL

COMPLAINT >

1. Plaintiff, Bruce E. Gardner, an individual and

citizen of the United States residing in the District of

Columbia.

2. Plaintiff, Benita D. Sparks-Gardner, an individual

and citizen of the United States residing in Sacramento,

A45

\ —

California.

3. The Defendant is the United States of America.

4. This is a suit arising under the laws of the Internal

code for the refund of income taxes and interest erroneously

and illegally assessed against and collected from the

Plaintiff(s).

5. Jurisdiction is conferred upon the Court by title 28,

§§1340 and 1346(a)(1) of the United States Code, which

provides that the District Court shall have original jurisdiction

of any civil action arising under any act of Congress

providing for internal revenue and for the recovery of any

internal revenue tax alleged to have been collected without

authority or any sum alleged to have excessive or in any

manner wrongfully collected under the Internal Revenue

laws, and on title 26, United States Code Antelope, CA

958437422 which provides for tax refund suits after a refund

claim has been filed with Secretary of the Treasury.

COUNT ONE

(Calendar Year 1989)

6. On or before April 15, 1990, Plaintiff, Bruce E.

Gardner timely filed a federal income tax return for the 1989

calendar with the Regional Service Center in Austin, Texas

and paid the taxes reported due on said return.

7, Plaintiff filed a Form 1040X as a claim for refund,

for additional amounts paid with respect to his 1989 income

tax return. A copy of said claim is attached hereto as Ex A.

8. More than six months have elapsed since the filing

of said Claim for Refund, and said Claim has not been

allowed by the Internal revenue Service.

A46

9. As grounds for recovery, Plaintiff herein

incorporates by reference the averments contained in his

claim for Refund for calendar year 1989, Exhibit a hereto.

10. Plaintiff has overpaid his federal income taxes for

the calendar year 1989 and is entitled to recover from

defendant the sum of $589.00 plus, interest, no part of which

has been repaid to Plaintiff.

11. Plaintiff is the sole owner of his Claim against the

Defendant and have made no assignment of said Claim.

COUNT TWO

(Calendar Year 1990)

12. On or before April 15, 1991, Plaintiff, Bruce E.

Gardner timely filed a federal income tax return for the 1990

calendar year with the Regional Service Center in Austin,

Texas and paid the taxes reported due on said return.

13. Plaintiff filed a timely claim for refund by

submitting Form 1040X as a claim for refund on or about

April 15, 1995, for additional amounts paid with respect to

his 1990 income tax return. A copy of said claim is attached

hereto as Exhibit B.

14. More than six months have elapsed since the filing

of said Claim for Refund, and said Claim has been neither

allowed or disallowed by the Internal Revenue Service.

15. As ground for recovery, Plaintiff herein

incorporates by reference the averments contained in his

claim for Refund for calendar year 1990, Exhibit B hereto.

A47

16. Plaintiff has overpaid his federal income taxes for

the calendar year 1990 and is entitled to recover from

defendant the sum of $1,939.00 plus, interest, no part of

which has been repaid to Plaintiff.

17. Plaintiff is the sole owner of his Claim against the

Defendant have made no assignment of said claim.

COUNT THREE

(Calendar Year 1991)

18. On or before April 15, 1992, Plaintiff, Bruce E.

Gardner timely filed a federal income tax return for the 1991

calendar with the Regional Service Center in Ogden, Utah

and paid the taxes reported due on said return.

19. Plaintiff filed a timely claim for refund by

submitting Form 1040X as a claim for refund on or about

April 15, 1005, for additional amounts paid with respect to

his 1991 income tax return. Ac copy of said claim is attached -

hereto as Exhibit C.

20. This claims for refund, Exhibit C hereto, was

formally disallowed by the Internal Revenue Service of May

12, 1995. A true and correct copy of the Legal Notice of

Disallowance of Claim is attached hereto as Exhibit d.

claim for Refund for calendar year 1991, Exhibit C hereto.

33. Plaintiff has overpaid his federal income taxes of

the calendar year 1991 and is entitle to recover from

defendant the sum of $218.00 plus, interest, no part of which

A48

has been repaid to Plaintiff.

23. Plaintiff is the sole owner of his Claim again the

Defendant and have made no assignment of said Claim.

COUNT FOUR

(Calendar Year 1993)

24. On or before August 15, 1994, Plaintiffs, Benita

D. Sparks-Gardner and Bruce E. Gardner timely filed,

pursuant t:. a valid extension of time to file, a joint federal

income tax return for the 1993 calendar year with the

Regional Service Center in Ogden, Utah and paid the taxes

reported due on said return.

25. Plaintiffs filed a timely claim for refund by

submitting form 1040X as a claim for refund on or about

April 18, 1995, for additional amounts paid with respect to

their 1993 income tax return. A copy of said claim is

attached hereto as Exhibit E. ‘

26. More than six months have elapsed since the filing

of said Claim for Refund, and said Claim has been neither

allowed or disallowed by the Internal revenue Service.

27. As grounds for recovery, Plaintiffs herein

incorporate by reference the averments contained in their

claim for Refund for calendar year 1993, Exhibit E hereto.

28. Plaintiffs have overpaid their federal income taxes

for the calendar year 1993 and are entitled to recover from

defendant the sum of $3,794.00 plus, interest, no part of

which has been repaid to Plaintiffs.

A49

29. Plaintiffs are the sole owner of their Claim against

the Defendant and have made no assignment of said Claims.

WHEREFORE, Plaintiff(s) prays for:

1. Judgment against the Defendant on Count One,

Count Two, count Three, and Count Four in the total amount

of $6,540.00 and interest as provided by law:

2. Plaintiffs’ attorney’s fees, costs, and costs in this

action to paid by Defendant pursuant to title 28, United

States Code 2414(b) and title 26, United States Code 7430;

and

3. Such other relief as this Court deems appropriate.

Plaintiff demands trial by jury.

Dated: March 18, 1996 -S-_

Paul S. Besson

Attorney At Law

~ Bar ID# 420990

311 N Street S.W.

Washington, D.C.

20024

(202) 863-0143

~ AS50

—_APPENDIX I

United States Court of Appeals

For The District of Columbia Circuit

No. 99-5080 September Term, 1999

Bruce E. Gardner and, 96cv00523

Benita D. Sparks-Gardner

Appellants UNITED STATES COURT OF

APPEALS

Vv. For District of Columbia Circuit

United States of America,, FILED

= Appellee DEC 28 1999

CLERK

BEFORE: Silberman, Henderson, and Tatel,

Circuit Judges

ORDER

Upon consideration of appellants’ petition for

rehearing filed November 22, 1999, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: -s-

Robert A. Bonner

Deputy Clerk

A51

__APPENDIX J _

United States Court of Appeals

For The District of Columbia Circuit

No 99-5065 September Term, 1999

96cv03075

Bruce E. Gardner,

Appellant, File On:

United States Court of Appeals

Vv. For District of Columbia Circuit

Filed

United States of America, JUL 21 2000

Appellee. CLERK

BEFORE: Edwards, Chief Judge; Silberman, Williams,

Ginsburg, Sentelle, Henderson, Randolph, Rogers,

Tatel, and Garland, Circuit Judges Circuit Judges

ORDER

Upon consideration of appellant’s petition for rehearing filed

June 27, 2000, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT

Mark J. Langer, Clerk

BY: -s-

Robert A. Bonner

Deputy Clerk

A52

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.