IRS COLLECTION DUE PROCESS HEARINGS -- by Norm Lehnhardt, Senior Staff
Paralegal
October 3, 2002
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| IRS COLLECTION DUE PROCESS HEARINGS -- by Norm Lehnhardt, Senior Staff Paralegal October 3, 2002 | ||
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| ### Today's A.L.E.R.T. (America Law Education Rights & Taxation): October 09, 2002 Introduction from Gordon: Do you fear an IRS meeting? Fear no more! The following 'Tour Guide' from the Save-A-Patriot Fellowship (not available at AAA) will walk you through a pleasant visit to a hilariously misnamed 'IRS Collection Due Process Hearing', where you, the Sovereign Sociologist, will enjoy the rare opportunity, 'up close and personal,' to observe a pack of the meanest and most arrogant of all IRS officials -- the obsequious Appeals Officer (taxasaurus denyus) -- competing in its natural habitat for tax scraps and plunder performance bonuses. Try not to disturb them (they might bite), and remember to have pity on these poor tax droids. After all, if they had any real integrity, they'd be out collecting trash, not taxes. Trash collectors fulfill a valuable and much appreciated function in an orderly society. Frankly, I regret to say that the inclusion of the IRS Collections Appeals Officer among such noble scavengers as the humble dung beetle and the simple garden worm would be an offense to the latter. IRS COLLECTION DUE PROCESS HEARINGS -- by Norm Lehnhardt, Senior Staff Paralegal The IRS started granting Collection Due Process Hearings during 2002, wherein previous years SAP members routinely were denied hearings. This does not mean that the hearings granted are fair and follow due process procedures. The IRS is merely trying to give the impression that a member has been given a fair hearing, so as to preclude any liability on their part; for the IRS Restructuring Act of 1998 changed the rules of the game they were used to playing. The IRS Restructuring Act (Public Law 105-206, 112 STAT. 685) became law on July 22, 1998, and various provisions of the Act are the reasons why the IRS is 'granting' hearings. A quick review of the Table of Contents for the Act provides some insight as to why the IRS is now willing to grant hearings. Section 1203 of the Act details Termination of employment for misconduct. It states that IRS employees can be fired for misconduct. Misconduct includes violation of individual Constitution rights -- denial of due process and other civil rights. Sec. 1203 states in pertinent part: Subject to subsection(c), the Commissioner of Internal Revenue shall terminate the employment of any employee of the Internal Revenue Service if there is a final administrative or judicial determination that such employee committed any act or omission described under subsection (b) in the performance of the employee’s duties. Such termination shall be a removal for cause on charges of misconduct. (b) ACTS OR OMISSIONS--The acts or omissions referred to under subsection (a) are-- (3) with respect to a taxpayer, taxpayer’s representative, or other employee of the Internal Revenue Service, the violation of -- (A) any right under the Constitution of the United States; Subtitle E of the Act is entitled: Protections for Taxpayers Subject to Audit or Collection Activities. It contains the following sections: § 3401 which is titled Due process in Internal Revenue Service collection actions; § 3415 Taxpayers allowed motion to quash all third-party summons; and § 3417 Notice of Internal Revenue Service contact of third parties, and others that are less prominent but pertinent. These provisions of the IRS Restructuring Act obviously cause IRS employees some concern. In an attempt to comply with the provisions of the Act and still not incriminate the offending IRS employee, an IRS Memo dated May 2, 2002, was issued instructing IRS employees that 'taxpayers' may no longer record hearings. The Memorandum states that: '[IRS] Counsel determined that IRC § 7521 was not applicable to Appeals [hearings].' This is merely the opinion of an IRS counsel, and must be in accordance with the law, IRC § 7521. Only the Congress has the power to make law. Article I, Section 1 of the United States Constitution which states: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. And Article I, Section 8, Clause 1 and 18 state in pertinent part: The Congress shall have the Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers... Wherefore, we must examine § 7521 to see if IRS counsel opinion is in accordance with the intent of Congress. Section 7521 states in pertinent part: (a)(1) Recording by taxpayer Any officer or employee of the Internal Revenue Service in connection with any in-person interview with any taxpayer relating to the determination or collection of any tax shall, upon advance request of such taxpayer, allow the taxpayer to make an audio recording of such interview at the taxpayer's own expense and with the taxpayer's own equipment. (Emp added) This is the only LAW that applies to 'any in-person interview with any taxpayer relating to the determination or collection of any tax' and Internal Revenue Service employees are obviously subject to it. Procedures [and memo’s] are NOT law, they are only guidelines and are naturally unlawful if not made pursuant to the LAW. With this in mind let’s get ready for our IRS Appeals Hearing. REMEMBER, the No. 1 Rule is to have your recorder on when you enter the IRS building or meeting room. Here are some points to be aware of when going to an IRS Appeals Hearing. A. Before The Hearing 1. Whenever you get an IRS 'Notice of Intent to Levy' or other 'Notices' it is important to check for your appeal rights with the 'Notice.' Typically, you have only thirty days from the date of the letter to request a hearing. If you don’t get the request in by thirty days you will loose your right to appeal to the US District Court AND collection will not be stayed. NOTE: collection is normally stayed while in the appeal process. 2. SAP’s chief caseworker prepared a script to take to an appeals hearing. You will find it to be a very useful 'tool.' Practice with it beforehand. 3. Take a tape recorder to the hearing, and make sure it has fresh batteries. 4. Try to line up witnesses. Many people are afraid of the IRS. Thanks to the IRS Restructuring Act (Public Law 105-206, July 22, 1998) the IRS is now afraid of 'US.' Remember, § 1203 of this Act states that IRS employees can be fired for misconduct, for violations of individuals rights secured by the Constitution, such as denial of due process and other civil rights. B. At The Hearing 1. Before going into the hearing: Have easily accessible: a copy of the script, Section 7521, your Request for Appeals letter and a tape recorder with fresh batteries. 2. Go over the script so that it is fresh in your mind. 3. Highlight the sentence in your Request for Appeals letter that states that you will record the hearing and bring witnesses. 4. After entering the building and passing through the metal detector, turn on your recorder. 5. Your tape recorder should be on when the IRS appeals officers meet you. Leave it on even though he or she orders you to turn it off. Make sure you get their name and IRS ID number. You can make this task simple by asking for their card. 6. Show the appeals officer a copy of your Request letter and read the part that states that 'I plan to bring witnesses and record the hearing.' Ask the Appeals Officer if they received the letter dated (state the date of the letter). This is important to preserve the record for any appeal action. 7. Ask them if they are familiar with § 7521, and then read paragraph (a) of § 7521 which states that you have a right to record. This is also important to preserve the record for any appeal action. 8. Don’t be intimidated! Remember, You called the hearing. The hearing is your right to due process of law. 9. The IRS Appeals Officer may state that due to the May Memo they can’t allow recording any longer. Rebut that allegation with paragraph (a) of § 7521. If they persist, ask to see the law that repealed § 7521. Remember, leave your tape recorder running. Don’t turn it off! 10. The Appeals officer may give you a choice of either having a hearing without it being recorded, or no hearing at all. In that case repeat paragraph (a) of § 7521, and state that you have a right to record and anything short of that will be Denial of Due Process of Law. 11. The IRS will likely terminate the hearing. Hold fast to your position until the IRS terminates the meeting. Don’t give up. Keep maintaining your rights. DO NOT terminate the meeting. Be sure to get everything on tape -- do not turn off the tape recorder no matter what they say. 12. Read the script (if you get that far). Remind the appeals officer that YOU called the hearing. You have a right to a hearing pursuant to § 6330 and Amendment Five of the United States Constitution. If the IRS terminates the hearing you are being denied Due Process of Law. C. After The Hearing 1. Write down everything that happened at the hearing, and request your witnesses to do the same. Do this as soon as possible so that you don’t forget any important details. Turn your original notes into an Affidavit (SAP can help with this). 2. Make a back-up copy of your tape, and keep the original in a safe place. 3. Expect a 'Determination' letter from the IRS that states that you terminated the hearing. Your affidavits and tape recording can be used to rebut the outright lies stated in the determination letter. As time goes on, and the truth is spread far and wide, it becomes harder for the IRS to abuse you -- together we will prevail. ### INFORM AMERICA! RESOURCES #01. WEEKLY TELEPHONE CONFERENCE CALL -- IRS bugging you? Got a tax or SSN question? Property at risk? Trying to stop withholding? Join Gordon on Monday nights and get your most perplexing freedom-related questions answered. Held each Monday night at 9:30PM Eastern (6:30PM on the extreme left coast). Click here for details --> http://www.informamerica.com/news/conference_call.htm #02. RECEIVE TIMELY E-MAIL A.L.E.R.T.S. -- To join our mailing list, click #here http://www.informamerica.com/news/subscribe.htm. Read the latest at http://www.informamerica.com/news. 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