Using Title 5

[weishaupt1776]

seems that there is some buzz regarding the use of
5 USC 702 and 5 USC 556(d)

Barry Smith has brought this case to the forefront in regards to the IRS correcting records concerning one's status:

"If an administrative determination of status has the effect of subjecting a person to legal obligations, whether embodied in statute or previously formulated administrative commands, or otherwise affecting legal rights, such a determination possesses the elements of a reviewable order." Hope Natural Gas Co. v. Federal Power Commission, 1943.C04.40077 <http://www.versuslaw.com> ¶ 116; 134 F.2d 287 (4th Cir. 1943) quoting from Columbia Broadcasting System v. United States, 316 U.S. 407 (1942) Justice Frankfurter dissenting.

The gist of it is that you will have a reviewable order in a court now, by exhausting this admin remedy

More from Barry Smith:

This post is for all the people who have had their Individual Master File decoded, found junky stuff about their status there, and have been unable to make the IRS correct the erroneous entries.
It seems like somebody doing data entry for the Treasury’s delegate, the IRS, made an administrative determination that you are a citizen and resident of the United States, that you have “income” effectively connected with the U.S., that you are an “employee”, etc. These determinations affect your “legal rights” and therefore would seem to possess “the elements of a reviewable order." Both of the above cases got before the court on jurisdictional statutes having to do with review of agency actions that do not apply to IRS matters. I went searching for a statute that would give a Federal court a jurisdictional basis for reviewing the IRS’s administrative determinations and came to Hughes v. United States, 1992.C09.47124 <http://www.versuslaw.com> ; 953 F.2d 531 (9th Cir. 1992). Hughes tried to use 5 U.S.C. § 702 as a jurisdictional statute. § 702 reads as follows:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

Hughes, in an effort to forestall any further tax collection activities against them, brought suit against the United States and the Commissioner of Internal Revenue seeking declaratory and injunctive relief and damages. In spite of their arguments attempting to ward off dismissal based on the Anti-Injunction Act, the court still dismissed their case saying, “The Anti-Injunction Act (the Act) provides that, with certain exceptions, "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 court admitted, “Section 702 waives the government's sovereign immunity, and thus permits the exercise of jurisdiction, in actions seeking non-monetary relief with respect to agency action.” but still dismissed the plaintiff’s case because, “…the Anti-Injunction Act, 26 U.S.C. section 7421, and 28 U.S.C. section 2201, [prohibit] injunctive and declaratory relief against collection of federal taxes…”

So, it seemed to me that further research on the use of 5 U.S.C. § 702, not to enjoin the collection of taxes, but rather to review the IRS’s “administrative determination of [your] status” holds promise.

As I write this I am mindful of the Privacy Act of 1974, 5 U.S.C. § 552a and 26 U.S.C. § 7852(e). I am beginning to be convinced that Section 702 provides a route more likely to bear fruit than the Privacy Act of 1974 and the limitations 26 U.S.C. § 7852(e) impose upon that statute