Archive for month: March, 2013

Undoing IRS employee de-facto personal immunity

09 Mar
March 9, 2013

The following is a letter to my Representative, Duncan Hunter

Hello Ms. Alden and Rep. Hunter,

I am thrilled that you were asking questions about the details of our dispute with the government. The IRS has gained profound new responsibilities with Obamacare. It is therefore critical that that particular agency operate within the parameters set forth by Congress. With that in mind, I would like to outline the IRS employee immunity issue a little better.

IRS employee de-facto personal immunity:

The taxpayer remedy statute (the only means that a taxpayer may sue the IRS for wrongful acts taken):

26 USC § 7433 – Civil damages for certain unauthorized collection actions

If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions.

You see the red section above? It establishes that § 7433 provides a taxpayer remedy for negligent, reckless, AND intentional violations of title 26 [the Internal Revenue Code]. The next sentence states that the statute gives the taxpayer a right to sue the United States for violations of the Internal Revenue Code under the terms of the § 7433 statute. The final (purple) sentence is the problematic sentence. Here, the statute takes away the ability of the taxpayer to additionally sue the misbehaving individual. Other United States’ statutes establish that you may not sue the United States (the taxpayer) for punitive (deterring) damages. Punitive damages are not ordinarily allowed for negligence. We are fine with that. But, this statute also undoes punitive damages for intentional violations of the law against the individual. We are definitely not OK with that. If intentional violations of the law are not deterred, they will occur more often. Thus, § 7433 set up the environment whereupon a RICO violation could occur (a pattern of lawlessness).

The Internal Revenue Code (IRC) does have statutes punishing “offenses by officers and employees” (26 U.S.C. § 7214), but a punitive (imprisonment, fines, etc.) action by taxpayers cannot be sustained directly by the taxpayer. Note also how the offenses set forth in § 7214 are acts by the employees against the United States and not against the taxpayer. Critically, the § 7214 suit must be filed by the DOJ or United States Attorney in a separate criminal (as opposed to civil) action. Thus, the taxpayer has no punitive ability. It has been our experience that when the federal government benefits from the illegal acts of its employees, it is often loathe to punish or deter the behavior. This is what the United States attorney said in our lawsuit:

‘Even if the Court were to find that plaintiffs had established a constitutional or statutory right that they claimed the IRS Defendants had violated, which they cannot, the actions taken by the IRS Defendants in investigating and collecting outstanding tax liabilities cannot be said to be “clearly unlawful” to a reasonable officer in that situation.’ (United States Attorney Laura Duffy, 10-cv-02105: Dkt. 63);

It seems that now we cannot expect the federal government to police its own ranks where the interests of the United States are concerned. This is the problem.

Here’s what § 7433 should instead state (BOLD section my addition):

26 USC § 7433 – Civil damages for certain unauthorized collection actions

If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions, except when the acts are proved to be acts taken intentionally and are in clear violation of the law whereby the officer or employee is then personally liable to the taxpayer for punitive or deterring damages.

Kind regards, Brian Kenner

Due process is a right. No exceptions.

09 Mar
March 9, 2013

Representative Duncan Hunter of California’s 50th District

The following is the text of an email I sent to my representative, Duncan Hunter.

Dear Ms. Alden and Representative Hunter,

I have had a couple of days to think about the thoughts the Congressional Research Service (CRC) shared with you by phone. It is not surprising to me that they did not write their observations and conclusions down. I believe their position is dangerous to the republic and unacceptable to the public at large. The CRC would not want to be accountable to them. Their comments reinforce my belief that it is current federal policy to disregard federal law so long as it is in the “best interest” of the federal government. Though I have no problem with the federal government operating in its own best interest, the Constitution constrains the government by providing Americans with due process rights. We have a right to have our peers (a jury) decide if the government’s “best interests” unjustly impinge on our God given rights to life, liberty, and property. Senator Rand Paul was filibustering on the Senate floor this week to protect the same rights. The filibuster wasn’t about drones, it was about due process. Due process is under assault. The comments by CRC staff additionally illustrate it. Attorney General Holder (or any federal employee) does not get to make the decision about whether a person may be killed by a drone (unless the individual poses an immediate threat of harm), without the benefit of first being found guilty of some crime by a jury of his peers.

You related the CRC’s thoughts to me orally so I may have simply misunderstood them. Moreover, your understanding of them could also be in error. Nevertheless, here’s my take-away understanding of their position: (1) CRC staff feels that collection aggressiveness by IRS staff, as it relates to the observance of federal law, is to be expected and encouraged when the IRS must deal with a reluctant tax-paying public. (2) CRC staff additionally expressed skepticism to our particular objection to 26 USC § 7433, because intentional violation of the law by IRS staff has not been a problem thus far. I hope I have provided your office sufficient information to render those positions, if true, doubtful in reality:

The Kenner RICO lawsuit, if proven, would illustrate that intentional violation of the law (for the “best interest” of the federal government) is very much a problem now. Remember, RICO is a crime of systemic lawlessness, and far more serious than just a single violation of the law. Note that I simply could not bring a lawsuit before a federal judge without facts supporting the RICO allegation; I would have been sanctioned for filing a frivolous lawsuit. Federal employees have qualified immunity and thus are entitled to demand that I be specific and detailed in my allegations against them before a lawsuit can go to trial.

We have exceeded that “sufficiency” requirement. Consequently, the federal courts resorted to a flawed jurisdictional argument for dismissal. From the Battaglia dismissal decision (10cv2105 Document 64, pg. 11, ¶3):

“… the [Moskowitz] Court noted that 26 USC § 7433(a) provides the exclusive remedy for recovering damages by a taxpayer against an officer or employee of the Internal Revenue Service for recklessly, intentionally, or negligently disregarding any provision or regulation [the court then disingenuously disregarded the clause of 7433 stating “of this title” (title 26)] The [Moskowitz] Court stated that Plaintiffs may not circumvent this statutory scheme by asserting RICO claims against the IRS or its employees.

Plaintiffs’ allegations fall within 26 USC § 7433(a). … ”

But here’s what the 9th Circuit has to say about the “exclusivity” provision of 26 USC § 7433(a) used by Judges Moskowitz and Battaglia to dismiss the RICO lawsuit:

“Section 7433 creates a private right of action only for tax collection activity that violates some provision of the Revenue Code or the regulations promulgated thereunder. See 26 U.S.C. § 7433(a).” [Emphasis Added]). (See Shwarz v. US, 234 F. 3d 428 (9th Cir. 2000))

The binding precedent above makes the district court’s decision void. The allegations against IRS employees are thus legitimate.

Federal statutes circumscribe our due process protections. These statutes cannot be disobeyed if we are to have our rights to life, liberty, and property protected. Our sufficient RICO allegations establish that there may be a problem with IRS policy as it relates to our rights. If we prove our RICO lawsuit however, then there is proof of a problem within the IRS. Our constitutional lawsuit could additionally prove that, among other things, 26 U.S.C. § 7433(a) and its dues process defeating provisions, is the underlying problem. 26 U.S.C. § 7433(a) defeats due process by defeating deterrence and enabling intentional violation of the law.

With regard to Senator Paul’s filibuster, Senators McCain, Graham, and others just don’t get it. CRC staff are likewise misguided. The federal government is not entitled to the benefit of the doubt where respect for the rule of law is concerned. Our rights set forth in the Constitution are denied that way. We know, we have experienced it. As for drone use on American soil, it was Attorney General Holder’s earlier statements before congress that raised doubt. We know from past experience and the explicit statements of DOJ personnel, that where ambiguity in the law exists, the federal government uses the ambiguity for its own best interest.

Please help us get to trial. Help us further revise 26 U.S.C. § 7433(a) so that it no longer enables federal employees’ intentional violations of the Internal Revenue Code.

Kind Regards, Brian and Kathleen Kenner