Anyone please post or link full case "lost at C"

[phreeman2003]

Please, post the entire case for this cite: Ayres v. Agents for IMF, IRS (D.Colo. 7/24/98) 82 AFTR2d 5688, 92 US Tax Cases para 50637

[Shoonra]

98-2 U.S. Tax Cas. para. 50,637;
82 A.F.T.R.2d 5688


JAMES H. AYRES, Petitioner/Claimant,
v.
[b]AGENTS FOR INTERNATIONAL MONETARY FUND INTERNAL REVENUE SERVICE[b]; and THEIR PRINCIPAL GOVERNOR OF THE FUND, Real Party in Interest/Respondents/Libelants.

Civil Action No. 95-WM-1957

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

July 23, 1998

COUNSEL: JAMES H. AYRES, petitioner, Pro se, Colorado Springs, CO USA.

For AGENTS FOR INTERNATIONAL MONETARY FUND INTERNAL REVENUE SERVICE, and their principal governor of the fund, respondents: Philip Blondin, U.S. Department of Justice, Washington, DC U.S.A.

JUDGES: Walker D. Miller, Judge, United States District Court.

OPINION: ORDER
by Miller, J.


This matter is before me on the United States' Motion to Dismiss, plaintiff's Motion to Dismiss Phantom Action, and plaintiff's motion for summary judgment. For the reasons set forth below, the United States' motion is granted and plaintiff's motions are denied.

Background

In 1992, the Internal Revenue Service (IRS) filed two notices of federal tax liens on plaintiff's property with the Clerk and Recorder's office of El Paso County, Colorado for unpaid income taxes. The IRS also sent plaintiff a notice of levy in December 1992.

In response to the liens and levy, plaintiff brings this action, pro se, against the IRS, the International Monetary Fund (IMF), and their respective agents (collectively "defendants"), seeking a return of all property allegedly taken by defendants, the removal of all tax liens on his property, an injunction against any further liens, damages equal to twice the amount of the liens, "special" damages of $10,000,000, punitive damages of another $10,000,000, and a referral of the matters involved in this action to a criminal prosecutor. The complaint is styled as an in rem proceeding in admiralty, as plaintiff asserts that the tax liens are in fact maritime liens. n1

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n1 The complaint is curiously styled. Plaintiff brings claims against defendants, positioning himself as a plaintiff, while simultaneously purporting to answer and assert cross-claims in an in rem proceeding pursuant to Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims. However, there is no proof that any admiralty proceeding has been brought against plaintiff.
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The United States, asserting itself as the true defendant, moves to dismiss the action for insufficiency of service of process, lack of subject matter jurisdiction, failure to state a claim, and because some of the relief sought is barred by the Anti Injunction Act.

Standard of Review

Dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is proper "when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff." Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir. 1996).

Analysis

A. Proper Defendant

Plaintiff brings this action against agents of the IMF and the IRS and "their principal Governor of the Fund." In his response to the Court's October 16, 1995 Order to Show Cause, plaintiff asserts that the IMF, at the direction of the "Governor of the Fund," is responsible for the tax liens and levy against his property. Plaintiff further claims that the IMF directs the activities of the IRS and that the Secretary of the Treasury also acts as the "the Governor" of the IMF. As authority for these assertions, plaintiff cites 26 U.S.C. §§ 6321, 7805 and 7809 and 31 U.S.C. §§ 1101 and 1102. However, those sections of the United States Code provide no authority for plaintiff's contentions about the duties and powers of the IMF. "Furthermore these 'facts' cannot be accepted as true because judicially noticeable statutes provide otherwise. The Fund is an international organization which is governed by the representatives from its member nations, and not solely by the United States." Bell v. Agents for International Monetary Fund, 76 A.F.T.R.2d 7543 (E.D. Cal. 1995). Plaintiff has pled no facts showing that the IMF is involved with the liens on or levy of his property. Therefore, the IMF is not a proper party to this action and must be dismissed.

Regardless of whether the United States is named as a party in a complaint, HN2a suit is considered one against the United States "if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, . . . or if the effect of the judgment would be to restrain the Government from acting, or compel it to act." Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (internal citations and quotations omitted); Aviles v. Lutz, 887 F.2d 1046, 1048 (10th Cir. 1989).

The relief that plaintiff seeks would both restrain the IRS from acting and compel it to act. In addition, the judgment sought would require the United States to pay damages to plaintiff. Therefore, the United States is the proper party to this action, even though plaintiff specifically states to the contrary in his complaint. n2

- - - - - - - Footnote - - - - - - - - -
n2 Neither the Department of the Treasury nor the IRS is a suable entity. 26 U.S.C. § 7422(f)(1) ("A suit ... [for recovery of any tax alleged to have been erroneously or illegally assessed or collected] ... may be maintained only against the United States and not against any officer or employee of the United States. ..."); Castleberry v. Alcohol, Tobacco & Firearms Division, Treasury Dept., 530 F.2d 672, 673n.3 (5th Cir. 1976); Krouse v. U.S. Gov't Treas. Dept. Int. Rev. Serv., 380 F. Supp. 219, 221 (C.D. Cal. 1974). Therefore, plaintiff's suit may not be maintained against the Treasury or the IRS.
- - - - - - - - End Footnotes- - - - - - - -


B. Jurisdiction Over Plaintiff's Challenge to the Validity of the Tax Assessments

Plaintiff alleges that this is an action in admiralty, citing, as his basis for jurisdiction, Fed.R.Civ.P. 9(h), 22 U.S.C. § 286(g), 26 U.S.C. §§ 7323(a) and 7401, and 28 U.S.C. §§ 2461 and 2463. Those statutes, however, provide absolutely no basis for subject matter jurisdiction over plaintiff's claims, nor do they support plaintiff's assertion that this is an admiralty cause of action. n3

- - - - - - - - Footnote - - - - - - - - - -
n3 Fed.R.Civ.P. 9(h) states the rule for pleading admiralty claims, but provides no basis for jurisdiction. 22 U.S.C. § 286(g) merely states the rules for jurisdiction and venue for actions brought by or against the IMF, but gives the district court no grounds for jurisdiction of a dispute in which the IMF is not a party. 26 U.S.C. §§ 7323(a) and 7401 likewise lend no support for the assertion that his court has jurisdiction over plaintiff's claims. While § 7323(a) states that an action to enforce forfeiture for failure to pay taxes must be brought in the district court in the district in which the property is seized, no such forfeiture has been pled here. Section 7401 requires that the Secretary of the IRS initiate actions for collection or recovery of taxes, or of any penalty or forfeiture; it is clear that it is inapplicable as the IRS has not brought any such action. Finally, 28 U.S.C. §§ 2461 and 2463 provide no basis for jurisdiction. Section 2461(a) merely creates a default forum in which the Government may proceed to enforce a civil fine, penalty or forfeiture where the relevant statute does not supply a procedure; the Internal Revenue code provides a specific procedure for the enforcement of tax liabilities. Section 2461(b) allows the Government to proceed under the admiralty rules in forfeiture actions unless a federal statute provides otherwise. Here the IRS has not brought an action for forfeiture and the Internal Revenue Code provides its own procedures for forfeiture actions. Therefore, section 2461(b) gives the court no subject matter jurisdiction over this action. Similarly, "§2463 was not intended to confer jurisdiction on the federal district courts over property levied upon and seized under the Internal Revenue Laws." Lonsdale v. U.S., 919 F.2d 1440, 1443 (10th Cir. 1990).
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[Shoonra]

JAMES H. AYRES, Petitioner/Claimant, v. AGENTS FOR INTERNATIONAL MONETARY FUND INTERNAL REVENUE SERVICE; and THEIR PRINCIPAL GOVERNOR OF THE FUND, Real Party in Interest/Respondents/Libelants.

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A district court has no subject matter jurisdiction to hear a claim against the United States where the government has not expressly waived its sovereign immunity. United States v. Mitchell, 463 U.S. 206, 212, 77 L.Ed.2d 580, 103 S.Ct. 2961 (1983); Malone v. Bowdoin, 369 U.S. 643, 648, 8 L.Ed.2d 168, 82 S.Ct. 980 (1962). "Sovereign immunity is not waived by general jurisdictional statutes ...." Lonsdale v. U.S., 919 F.2d 1440, 1443 (10th Cir. 1990). "Rather, the taxpayer must find an explicit waiver of sovereign immunity." Id. Thus, plaintiff's claims must rest on specific statutes that expressly waive the government's immunity from suit.

The Internal Revenue Code expressly authorizes the IRS to impose a lien on all real or personal property of a taxpayer who neglects or refuses to pay the tax after demand. 26 U.S.C. § 6321. The IRS also has the power to collect delinquent taxes through the means of levy on all of the property on which the IRS has imposed a lien, following notice and demand to the taxpayer. 26 U.S.C. § 6331. A taxpayer has several ways to challenge a tax assessment which forms the basis of an IRS lien or levy. The taxpayer has an administrative remedy pursuant to 26 U.S.C. § 6326 to challenge the filing of a lien. In addition, the taxpayer may pay the taxes assessed and bring an action in federal district court to recover taxes erroneously assessed or collected, after the taxpayer has filed a claim for a refund with the IRS. 26 U.S.C. § 7422. The requirement that the taxpayer make a refund claim with the IRS is a jurisdictional prerequisite to a suit challenging the validity of a lien or levy. Angle v. United States, 996 F.2d 252, 253 (10th Cir. 1993).

Although 26 U.S.C. § 7422 is an express waiver of sovereign immunity, plaintiff may not take advantage of that statute because he has failed to allege any facts implying that he made a claim for a refund with the IRS in a timely fashion prior to bringing this suit. Moreover, plaintiff has failed to allege that he paid the tax liabilities in full prior to filing such a claim. Therefore, insofar as plaintiff seeks to challenge the IRS's assessment or collection of taxes, the court is without subject matter jurisdiction to hear plaintiff's claims. n4

- - - - - - - Footnote - - - - - - - -
n4 In addition, none of the statutes that plaintiff cites as a basis for subject matter jurisdiction -- Fed.R.Civ.P. 9(h), 22 U.S.C. § 286(g), 26 U.S.C. §§ 7323(a) and 7401, and 28 U.S.C. §§ 2461 and 2463 -- is an express waiver of sovereign immunity. See Lonsdale v. U.S., 919 F.2d at 1443-44.
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C. Anti-Injunction Act

Plaintiff seeks removal of all tax liens on his property, a cessation of the IRS's levy against his property, and an injunction against any further liens. The United States asserts that plaintiff fails to state a claim for such relief and that such relief is barred by the Internal Revenue Code's Anti-Injunction Act, 26 U.S.C. § 7421(a).

Insofar as the plaintiff is challenging the validity of the tax liens, he has a cause of action under 28 U.S.C. § 2410. However, in such a suit the taxpayer may not challenge the merits of the underlying tax assessment that forms the basis of the lien. Overton v. U.S., 925 F.2d 1282, 1285 n.1 (10th Cir. 1991); Schmidt v. King, 913 F.2d 837, 839 (10th Cir. 1990). The taxpayer may only contest the procedural regularity of the lien. Lonsdale v. U.S., 919 F.2d at 1443. Plaintiff has not alleged any facts from which one could infer such procedural irregularities. Accordingly, plaintiff fails to state a claim under 28 U.S.C. § 2410.

Except in limited circumstances not applicable to the case at bar, n5 the Anti-Injunction Act bars any and all suits brought "for the purposes of restraining the assessment or collection of any tax ...." 26 U.S.C. § 7421(a). "The statute applies not only to the actual assessment or collection of a tax, but is equally applicable to activities leading up to, and culminating in, such assessment and collection." Lowrie v. U.S., 824 F.2d 827, 830 (10th Cir. 1987). The injunction that plaintiff seeks against further liens on his property would restrain the collection of taxes and therefore is clearly barred by the Anti-Injunction Act. Accordingly, the court is without subject matter jurisdiction to hear plaintiff's claim for an injunction and that claim must be dismissed.

- - - - - Footnote - - - - - - - - - -
n5 The statutory exceptions to the Anti Injunction Act are proceedings under 26 U.S.C. §§ 6212(a) & (c), 6213, 6672(b), 6694(c), 7426(a) & (b)(1), and 7429(b). 26 U.S.C. § 7421(a). Plaintiff has pled no facts from which one could infer that any of these statutory exceptions is applicable.

"A judicial exception to the Anti Injunction Act permits an injunction if the taxpayer demonstrates that: 1) under no circumstances could the government establish its claim to the asserted tax; and 2) irreparable injury would otherwise occur." Lonsdale, 919 F.2d at 1442. There is no irreparable injury if the taxpayer has an adequate remedy at law. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 8 L.Ed.2d 292, 82 S.Ct. 1125 (1962). The taxpayer has the burden of showing that the IRS's claim is baseless. Church of Scientology of Cal. v. U.S., 920 F.2d 1481, 1485 (9th Cir. 1990). Plaintiff has failed to plead any facts which demonstrate that the IRS claim to the taxes owed is baseless, and he has an adequate remedy at law because he can pay the assessed taxes and then bring a civil refund action. Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir. 1983). Therefore, plaintiff may not avail himself of the judicial exception to the Anti Injunction Act.
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D. Plaintiff's Claims for Damages

A taxpayer may bring claims for damages for the improper failure to release a lien or for damages due to the unauthorized collection of taxes after all administrative remedies have been exhausted. 26 U.S.C. §§ 7432 and 7433. However, damages under those sections are limited to the actual direct economic damages suffered as a result of the improper actions of the IRS plus the cost of the damages action, and, in the case of damages due to unauthorized collection, they may not exceed $ 100,000. 26 U.S.C. §§ 7432(b) and 7433(b). n6 Plaintiff has not alleged any facts from which one could infer that he exhausted his administrative remedies; the extent of his allegations on that issue are that he returned the notices of liens and levy to the IRS. Moreover, plaintiff has not pled facts sufficient to state a claim under sections 7432 or 7433 such as that he followed any procedure provided by federal statute for challenging the tax assessment that underlies the liens. Therefore, there are no facts from which one could infer that the IRS improperly failed to release a lien on plaintiff's property. In fact, plaintiff's only challenge to the liens and levy is to assert that the government was not permitted to file notices of tax liens on his property and levy against his property without first bringing an action against him to prove the validity of the underlying tax assessment. However, as discussed above, the IRS has the express right to impose liens on the property of a taxpayer who neglects or refuses to pay the tax after demand, as well as to collect delinquent taxes through the means of levy on the property on which the IRS has imposed a lien, following notice and demand to the taxpayer. 26 U.S.C. §§ 6321, 6331.

- - - - - - Footnote - - - - - - - - - -
n6 Plaintiff seeks "special" damages of $10,000,000 and punitive damages of $10,000,000. There is no statutory basis for recovery of damages of this sort against the IRS, much less an express waiver of the government's sovereign immunity to suit. Therefore, the court is without jurisdiction to hear plaintiff's claims for special and punitive damages.
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Therefore, plaintiff fails to state a claim against the IRS for damages and his claims for damages equal to twice the amount of the liens on his property, special damages, and punitive damages must be dismissed.

Motion to Dismiss Phantom Action

Plaintiff moves to dismiss what he deems to be an action against him that has never been filed. In support thereof, plaintiff has attached two exhibits, one of which is a certificate of the Clerk of the Court that no civil or criminal actions were pending against plaintiff between January 1, 1950, and June 27, 1995. The second attachment appears to be plaintiff's credit report describing each of two federal tax liens filed on his property as a "court item." From the two documents, plaintiff deduces that two "phantom" actions remain pending against him. He seeks dismissal of those actions on the basis that he has never been served in accord with Fed.R.Civ.P. 4.

Because no action has been filed against plaintiff, there is no basis for his motion to dismiss.


Referral to Criminal Prosecutor

Plaintiff requests that the actions of the IRS be referred to a criminal prosecutor. Even were it within my powers to do so, there is no basis for such relief on the facts pled.


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[Shoonra]

AYRES decision, {continued from previous message}




Conclusion

Even accepting well pled allegations as true and construing them in the light most favorable to Plaintiff, the complaint fails to state a claim entitling him to relief. The United States is the proper party to this action, not the IRS, the IMF, or their respective agents. Insofar as plaintiff seeks to challenge the validity of the taxes assessed against him underlying the liens on his property, plaintiff's claims are barred by sovereign immunity. Plaintiff has failed to state a claim under 28 U.S.C. § 2410 to challenge the procedure by which the IRS filed notices of liens or the levy against his property. There is no subject matter jurisdiction to hear plaintiff's claims for an injunction against the IRS's assessment and collection of taxes against plaintiff, because the Anti-Injunction Act bars all such claims. Plaintiff fails to state a claim for damages under 26 U.S.C. §§ 7432 or 7433. Plaintiff's claims for special and exemplary damages are barred by sovereign immunity. Finally, there is no basis for referral of the matters involved in this action to a criminal prosecutor.

In light of the foregoing, plaintiff's motion for summary judgment is moot.

Accordingly, it is ORDERED as follows:

1. United States' Motion to Dismiss is GRANTED and this action is DISMISSED with prejudice, pursuant to Fed.R.Civ.P. 12(b)(6);

2. Plaintiff's Motion to Dismiss Phantom Action is DENIED;

3. Plaintiff's Motion for Summary Judgment is DENIED as MOOT; and

4. The United States may file a bill of costs with the Clerk of the Court on or before August 10, 1998


Dated this 23rd day of July, 1998.

BY THE COURT:
Walker D. Miller, Judge
United States District Court


{END}

[phreeman2003]

That is all.

[phreeman2003]

Shoonra, where did you find it someplace other than westlaw or lexis. Am I missing a good internet database of caselaw?

[David Merrill]

Walker D. Miller is a glorified magistrate who wrote that in lieu of Judge Wiley Young DANIEL wanting to blurt such attornment absurdities.

Walker D. Miller was promoted only to fill the shoes of a suitor with initials WM in order to create the illusion that judgment, which was properly filed a true judgment res judicata was from the district court and not from The Preamble Union of People.

Thank you Shoonra for clarifying that. I knew Jim and we discussed the process often while his case was being ignored for years. Now you have really shown me how long until they found Miller stupid enough to blather on against the fact that all revenue causes have been in admiralty since long before Delovio v. Boit (1815).

But I have to hand it to you Shoonra; this time you found somebody to do your lying for you. I bet that opinion was even rendered long after Miller had waited for Jim to die.

A suitor (court of competent jurisdiction) in Oregon sent me the complete Are You Lost at C? book. I have attached Jim's Memorandum of Law. That is all I have on the current disk. I have the entire thing archived somewhere but it is almost identical to the book as Jim was working with the authors at the time, prior to 1996. However the gift leads me to believe that for a few bucks you can order up the book somewhere.

With my nearly identical case, I filed it with an In Forma Pauperis complaining that the clerk was demanding FRNs, the currency issued by the Fed and IMF, the respondent. Because of that complaint, when I did file, the Thirty One Day Government Shutdown (corporate restructure) commenced the day afterward.

Beware, Shoonra lied to us about NFTLs.

http://www.suijuris.net/forum/106610-post62.html
Shoonra falsifying

Here she has managed to find a flunky federal judge to lie for her.


Regards,

David Merrill.

[Shoonra]

Originally Posted by phreeman2003

Shoonra, where did you find it someplace other than westlaw or lexis. Am I missing a good internet database of caselaw?

I got this from Lexis, and the same text is available on WestLaw. Neither is free.

SFBFKADVP is seriously nuts. Judge Walker D. Miller has a been a full-fledged federal judge since being appointed by Clinton & confirmed by the Senate in 1996. Miller graduated at the top of his class from Univ. of Colorado Law School in 1963, and had been casenote editor of the school's law review. He got a Master of Comparative Law from the Univ. of Chicago in 1965. From 1966 to 1969 he was an assistant prof at the Univ. of Kansas Law School.

For SFBFKADVP to quibble about Judge Miller's bona fides after he's touted such bogus "decisions" as the Credit River and the Boulder Dam charades is proof that he's got something wrong with him. Earlier this week DiM was abusing me because a SEVENTH Circuit decision I had cited could not be found in a list of TENTH Circuit cases. For DiM to suggest that I had anything to do with this case is a sign that he needs his meds adjusted.

[David Merrill]

Originally Posted by Shoonra

I got this from Lexis, and the same text is available on WestLaw. Neither is free.

**** For Brains FKADVP is seriously nuts. Judge Walker D. Miller has a been a full-fledged federal judge since being appointed by Clinton & confirmed by the Senate in 1996. Miller graduated at the top of his class from Univ. of Colorado Law School in 1963, and had been casenote editor of the school's law review. He got a Master of Comparative Law from the Univ. of Chicago in 1965. From 1966 to 1969 he was an assistant prof at the Univ. of Kansas Law School.

For **** For Brains FKADVP to quibble about Judge Miller's bona fides after he's touted such bogus "decisions" as the Credit River and the Boulder Dam charades is proof that he's got something wrong with him. Earlier this week DiM was abusing me because a SEVENTH Circuit decision I had cited could not be found in a list of TENTH Circuit cases. For DiM to suggest that I had anything to do with this case is a sign that he needs his meds adjusted.

Okay, so I was under the impression Miller was a magistrate before he was switched onto the case I mentioned. The objective was to match up the initials with the real judge. I doubt Wiley Young DANIEL was ignorant enough to make such an opinion, that is why he was removed, after years from Jim's case.

I did not suggest Shoonra had anything to do with the case. I would tell you details but the fellow has been living in peace for eight years now. I shouldn't prod his privacy. It is a little sad that the peace of judicial remedy is so disturbing to Shoonra that she cannot refrain from name-calling.



Regards,

David Merrill.


P.S.

Earlier this week DiM was abusing me because a SEVENTH Circuit decision I had cited could not be found in a list of TENTH Circuit cases.

I admit that I corrected that mistake within about a half hour.

[rottweiler]

phreeman2003, the file "AreYouLostAtC" is 9.46 MB which is too large to attach to a post. If you PM me a email address I will send it to you.
In the meantime here is a text version.
http://www.citizensoftheamericancons...r%20courts.htm

The article III district court of the United States needed for jurisdiction over a libel of review is like Bigfoot. If you happen to spot it please let me know.

This case is actually a gold mine for me, how did you ever find out it existed?

Originally Posted by phreeman2003

Please, post the entire case for this cite: Ayres v. Agents for IMF, IRS (D.Colo. 7/24/98) 82 AFTR2d 5688, 92 US Tax Cases para 50637