Alabama State tax response-help please

wirlwind · #1 04-16-2004, 08:36 PM

I got another response fromt eh Alabama dept of revenue.& this is a form 40.& It came by certified mail.

&

State of Alabama& Seal

vs. STATE OF ALABAMA

STORM, DAVID R. DEPARTMENT OF REVENUE

XXXX& XXXXXX XX& NOTICE OF FINAL ASSESSMENT

XXXXXXXXXXX, AL XXXXX

TYPE OF TAX: INDIVIDUAL INCOME FILE#:XXXXXXXXX

SOCIAL SECURITY NUMBER: XXXXXXXXXX SECTION&: 7375

ASSESSMENT NUMBER: XXXXXXXX& FORM: 40

TAX PERIOD ENDING: 12/31/2000

Under provision fo the Code of Alabama 1975, as amended, the Department of Revenue hereby enters final assessment of the tax liability described:

ADDITIONAL TAX DUE..........................$3038.00

& PENALTY........................................... .........$1519.00

& INTEREST.......................................... ..........$ 523.95

& BALANCE NOW DUE................................$5,080.95

You have the right to appeal this assessment to wither the Administrative Law Division of the Revenue Department or Circuit Court.& The appeal must be made within thrity days of the final assessment date and pursuant to the provisions of Act 92-186.& See the reverse die for an additional explanation of your appeal rights.

Entered& xxxxxxxxxxxx State of Alabama Department of Revenue

By-(signature)

& Assistant Commissioner of Revenue

Keep this part for your records.

-----------------------------------------------------------------------------------------------

RETURN THIS PART WITH PAYMENT OR SEE CREDIT CARD PAYMENT OPTION ON REVERSE SIDE.

And then the bill follows.

On the back are the Final appeal rights (This is lengthy)
FINAL ASSESSMENT APPEAL RIGHTS
The Alabama Taxpayers' Bill of Rights and Uniform Revenue Procedures Act guarantees you certain rights of appeal regarding your final assessment.& If you intend to appeal your final assessment, you must do so within thirty days from date of issuance.
An appeal may be made in one of the following two ways; upi miust choose one way and follow the instructions exactly.
1.& You may appeal your final assessment to the Administrative Law Division of the Department of Revenue.& To do so, you must notifiy the Administrative Law Judge in writing of you intent to appeal.& The written appeal notice should contain your name, address, telephone number, type of tax, and the tax period(s) being appealed.& Your notice of applea must also contain a detailed statement of the specific reasons for your appeal.& Your appeal may be dismissed if you fail to specify your objections to the final assessment in your notice of appeal. Attach a photocopy of the final assessment to your notice of appeal within thrity (30) days of the final assessment date.& If you mail your appeal throught the U.S. mail it will be considered as timely filed if it is postmarjked wiothin the thrity day time periodunless the 30 day time period falls on a weekend or U.S. holday, in such cases the next working day would apply.
Then address of Administrative Law Judge is given.
2.& In the alternative, you may elect to appeal your final assessment to the circuit court.& This may be done in either Montgomery County, Alabama, or in the circuit court of the Alabama county in which you reside or have your prinicipal place of business.& The written appeal should contain your name, address, telephone number, type of tax and tax period(s) being appealed.&
If you choose to appeal to circuit court, you must file your written notice of appeal within thirty days of te final assessment date with both the Secretary of Alabama Department of Revenue, and the clerk of the circuit court in the county where you file your appeal.& Mail the Revenue Department's copy to the following address:
& Address
Additionally, if you elect to appeal to the circuit court, you must either pay the assessment in full or post a supersedeas bond with the court in double the amount of the assessment.& However, if you jhave as total net worth of $20,000 or less, you may qualify for a special exceptionm, which provides for the filing of an appeal withour either paying the assessment or posting a bond first (Sections 40-2A-9(g)(1), Code of alabama,1975).& For more information on this exception, you should contact the circuit court clerk in the county& in which you plan to make your appeal.
If you do not wish to appeal this final assessment, your payment for the total amount should be attached to the notice and forwarded to the address shown on the final assessment.& .& A final assessment which is not appealed is as conclusive as a judgment of a circuit court.& The Department may then proceed with collection by either execution, (not a misspelling-do they really kill people?????) garnishment, or levy as provided by Section 40-29-23 Code of Alabama 1975.
&
That is the letter we got.& They sent us a copy of a tax return that they had prepared for us initiallty a couple of months ago.& I used a letter that Randy had forwarded to me that expressed that it wasn't a refusal to pay and that I wanted any further correspondence to prove their lawfula authority anmd jurisdiction to assess the alleged debt for me, to prove lawful authority that gives them the right to prepare a tax return on my behalf (my husbands really).& There were some disclaimers of Liability recited after that.& They did respond back within the 30 day window- (with a threat to kill my husband if he doesn't respond or pay his taxes!).
Does anybody have any ideas how to respond to this?& All ideas would be appreciated.
Thanks,
Donna

&

rushpat · #2 04-16-2004, 09:16 PM

Hmmm.... if you are really getting threaten with physical harm, I'd say it is time to move!

Seriously, you may consider conditionally agreeing to the paying of fees and signing of the forms they want upon them meeting some conditions that prove their claim.

You could do like Tora and myself and quote the section of the Privacy Act of 1974 about their authority to demand information from you and whether it is mandatory or voluntary and if it can be used against you (see the the California FTB thread):

Quote:

Per the Privacy Act of 1974 (e) (3)(A) and, Title 31 1.35(b) (2), states that your agency is required to:

?inform each individual whom it asks to supply information on the form which it uses to collect the information or on a separate form which can be retained by the individual, the authority (whether granted by statute, or by Executive order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary.? (Underline emphasis added).

For the protection of my person?s commercial well being, please provide me with the authority by which your agency is authorized to solicit a (Insert YEAR HERE) (insert STATE HERE) tax return from me, and whether disclosure of such tax information is mandatory or voluntary. This request is made in accordance with the Privacy Act of 1974 5 U.S.C. section 552a (e)(3)(A) and Title 31 1.35(b) (2).

You can also request formal verification of the debt that you allegedly owe, according to the Fair Debt Collection Practices Act:

Quote:

Also, per the Fair Debt Collection Practices Act, hereinafter ?FDCPA? (as amended by Public Law 104-208, 110 Stat. 3009 (Sept 30, 1996)), Section 807, False or Misleading representations:

?A debt collector may not use false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: ? (11) The failure to disclose in the initial written communication with the consumer ? that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action? ? (Underline emphasis added)

Please provide the Code section that exempts you and your company and your Letter from the requirement to comply with Section 807(11) of FDCPA (15 USC 1692e).

Further, Section 809 of FDCPA, Validation of debts, states, in pertinent part:

?(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector??

This letter is not a refusal to pay, but simply a request for the name and address of the original creditor and notification that the alleged unpaid debt is in need of validation and verification. Kindly mail to me: (1) the name and address of the original creditor; and (2) verification of the alleged unpaid debt, as that term, i.e. ?verification?, is commonly defined in law dictionaries, i.e.:

?Verification. Confirmation of correctness, truth, or authenticity, by affidavit, oath, or deposition. Affidavit of truth of matter stated and object of verification is to assure good faith in averments or statements of party.? Black?s Law Dictionary (Sixth Edition)

Please note that the above request for verification can be satisfied only by your provision of a copy of verified proof of claim of loss from the original creditor, admissible as evidence in a court of law, i.e. in the form of affidavit, oath, or deposition, verifying that I have some contractual obligation to pay your company the alleged unpaid debt claimed in your Letter.

If you feel that you and your company are exempt from this FDCPA requirement (15 USC 1692g), please provide the Code section that affords you and your company such exemption.

Your failure to satisfy this request within a reasonable time constitutes your and your company?s absolute waiver of any and all claims against me in this matter, and your tacit agreement to compensate me for all costs and attorney fees, should such be necessitated / incurred as a result of your, and your company?s violation of FDCPA in this matter.

You should be aware that sending unsubstantiated demands for payment through the United States mail might constitute mail fraud under federal law.

That was pretty much the guts of my recent correspondence with the theft board of California. I've heard that it was effective on the IRS. We'll see what happens with the state tax agencies.

I also gave them 21 days to respond. That is coming up next week. Then, I'll send a notice of default with option to cure (10 more days), then a final notice with final option to cure (final 10 days), then an affidavit of non-response and have it filed in the county recorders office here and in California (I have a contact out there). They'll get a copy of it too.

If they start threatening Garnishment, jump online and look up the Alabama state codes and find the part about garnishment rules and VERIFY that you must have a court order or judgment for a garnishment. I found it in about 1 hour on Georgia's statute website. If they send NOTICES of LEVY, keep in mind that those aren't real levies, but only notices. See Williamson VS Boulder Dam Credit Union (kudos to ICE on that one).

If I were you, I would send any correspondence back within 3 days and include and affidavit that you sent it back within 72 hours of receipt. You see, some people look at these things as hidden contracts, and you can reject or redraft any contract within 72 hours.

There should be more than just the 72 hour info on the attached affidavit. If you need more help on this, let me know.

Also, a certificate of service, to be witnessed and signed by the postal worker, claiming they witnessed all of the items go into the mailing bag would be good, so they can't claim they didn't get anything. I would send registered, return receipt. The extra $5 is worth it.

Whether this works or not is anyone's guess, but it is better than nothing.

Oh, and I attached a copyright notice and my letter gave them limited use of my trademarked name to get the information that was requested, but if they continued with any collection activity without getting the info to me first, then the authorized use was rejected and the terms applied. Also, violation of the FDCPA would have them criminally liable.

Did anyone sign the form you received?

wirlwind · #3 04-16-2004, 11:41 PM

Rushpat,

Thanks for the info.& I copied the FTB thread,& -all 45 pagers of it-which I have been following.So far they haven't threatened garnishment.& Their first threat was execution followed by garnishment and then levy.& (HaHa).& I did go and look up the Alabama statutes and they send a notice of garnishment

The 72-hour window of opportunity is out.& this is due by april 30 to remain in honor.& I've had so many other things going with attorneys for CC debts etc- I kind of put this on the back burner.& Right now I need something to buy some time.& I'm not going to ask for the appeal.& I don't want it on their terms.& I want it on mine.& they did ignore my first letter, and answered none of my questions and certainly didn't prove that they had the jurisdiction to do anything.& If I ask for an appeal I would feel like that I was admitting that I am a taxpayer, and I know I am not.& Therefore I don't feel compelled to jump through their hoops.&

thanks for the info.& I'm going to work on composing another letter .&

Donna

#4 04-16-2004, 11:43 PM

[quote= wirlwind]

regarding your final assessment

Did you ever get to see the "original" assessment? Probably not.

What was it based on? Okay, "we" know what it was, those old w-2's. Fine. Problem is to be "reliable" as "evidence," they MUST be "certified/authenticated copies," OR originals.
1.& You may appeal your final assessment to the Administrative Law Division of the Department of Revenue.&
Does Alabama's code read like Virginia's, meaning IF you appeal you MUST PAY FIRST? (Yeah, here in VA, ANY type of appeal MUST be preceded by payment, in full. THEN you try to get "justice.")
The written appeal notice should contain your name, address, telephone number, type of tax, and the tax period(s) being appealed.&
Wait. Don't they already have THAT information? Why are they wanting if from you. I mean, it's one thing to attach a copy of what THEY are "alleging" the "type of tax, etc" to be. It's another for them to try to coerce YOU into spelling it out for them.
Your notice of applea must also contain a detailed statement of the specific reasons for your appeal.&
Well, duh. How about:
1) Failure to advise me that I'd waived all constitutional rights regarding self-incrimination, privacy of papers, and on and on and on.
2) Where in the hell is the "due process" in all of this?
3) Where is the proof that you have the authority to collect the debt?
4) Where is the proof of debt?
5) Where is the verification of debt, i.e., who, specifically, has personal and requiste knowledge of this and will stand in court, point a finger in your face, and testify that YOU owe the money?
6) Throw "laches" in there just for fun. After all, this thing has probably been dragging on for a while. Why the hell do these people wait for, like, "forever" before they "really get serious"? IF "they" "know" and can "prove" you owe the "debt" from the first time they allegedly assess and bill you, why not DO something then?& Could it be the obvious that it's simply to let the penalties, etc., continue to build?
7) Where are the certified/authentic copies of the WRITTEN ORDERS OF DELEGATION from the Tax Commissioner to whatever-agent allegedly performed the alledged assessment?
And on and on. I'll have more tomorrow. After reading this, I'm so mad I could spit nails!
Your appeal may be dismissed if you fail to specify your objections to the final assessment in your notice of appeal.
See how arrogant these bastards are? Why do they think you'd "file an appeal" if you weren't planning on "specifying your objections"?& They're wanting you to "file an appeal" so you will put, in writing, what would be your "defense." Here in Virginia that's the way it works: Explain to the good Commissioner what your objections are, then HE gets to run to the judge and get a determination of what is, quite literally, your chances of winning, THEN they take it from there.
Okay. We're talking Alabama, I know. But I'm betting that most states are all the same.
Attach a photocopy of the final assessment to your notice of appeal within thrity (30) days of the final assessment date.&
Why? Don't THEY have the original or a copy of their own? Not just no, but hell no!
If you mail your appeal throught the U.S. mail it will be considered as timely filed
Oh, really? "Mailing" is NOT the same as "filing," not by "legal definition." (Again, here in VA, yeah, there's a section that says for income taxes, it IS the same, but the courts have ruled that they are NOT the same. Make THEM PROVE to you that it IS the same. If not, they'll come back and say you failed to "file."
Then address of Administrative Law Judge is given.
Definitely find the thread about "is he a judge or not." I'd want to see everything that exist about this "Administrative Law Judge."
2.& In the alternative, you may elect to appeal your final assessment to the circuit court.&
Personally, as with the "administrative remedy," HELL no. Think three words:
BURDEN OF PROOF!
If YOU appeal, YOU are the plaintiff and YOU have the "burden of proof." If THEY want it in court, let THEM assume burden of proof. Then they MUST introduce ALL of your "timely replies," requests/demands, etc, i.e., all of YOUR attempts at trying to "resolve" the matter. All they've done is piss and moan around and now want to coerce YOU into giving THEM the "easy out."
Don't you think if this was such a slam-dunk that they'd have already dragged you into court?
BURDEN OF PROOF!
THEY alleged the debt. THEY have to prove it. (Well, they might break down your down in the middle of the night......)
If you choose to appeal to circuit court, you must file your written notice of appeal within thirty days of te final assessment date with both the Secretary of Alabama Department of Revenue, and the clerk of the circuit court in the county where you file your appeal.&
See how the sneaky rat-bastards really are? Maybe it's "standard" to give "copies" of everything to both parties in a lawsuit. Honest to God, I don't know, and don't care. I know that "usually" the person being sued gets only the summons. After that comes the "discovery," etc. etc. They want YOU to do THEIR work for THEM? Right. When you can pry the money from my cold dead fingers!
Additionally, if you elect to appeal to the circuit court, you must either pay the assessment in full or post a supersedeas bond with the court in double the amount of the assessment.&
Damn it! THERE it is. See? PAY FIRST, JUSTICE LATER? Hell with that! Four years these a-holes have been playing this game with me. I don't know much about any of this stuff and I'm the first to admit it, but I damned sure know all about "bullies." And the irs and state tax agencies operate on the same level as bullies.
Again, IF you owed the money and IF they had the proof, don't you think THEY would have really "done" something to collect it? The fact they're doing this, as far as I'm concerned, simply reinforces that THEY know they KNOW nothing.
However, if you jhave as total net worth of $20,000 or less,
1) My net worth is NONE of your damned business, and
2) Didn't you bastards just do an assessment on me, and NOW you're telling me you don't know what my "net worth" is? Oh, assess this, you bastards!
For more information on this exception, you should contact the circuit court clerk in the county& in which you plan to make your appeal.
Oh, really? Well, gee, y'all have been so helpful, I thought maybe you would've included those "laws" as well. (Sorry. Just a facetious sidebar.)
If you do not wish to appeal this final assessment, your payment for the total amount should be attached to the notice and forwarded to the address shown on the final assessment.&
Or what?
A final assessment which is not appealed is as conclusive as a judgment of a circuit court.&
And where in hell is THAT written? Or is this the "unrebutted affidavit" stuff? Hmmm. But your "affidavits" (all those letters, signed under penalty of perjury) that have gone unanswered mean nothing, right?
The Department may then proceed with collection by either execution, (not a misspelling-do they really kill people?????)
And I would NOT let them off the hook for the use of the word "execution"?& I'd make THAT a focal point in my attack!& I.E., "Are you bastards threatening me with physical harm?"& Crap, I'd be so mad I'd take it to the local cops and let THEM read it!
garnishment, or levy as provided by Section 40-29-23 Code of Alabama 1975.
Now you're at the heart of the matter. ALL they're doing, again, is trying to bully you into paying.
Remember, from the first letter you got from them (request for information, whatever), they acknowledged there was never, ever going to be a "failure to file" charge, i.e., no "criminal" charges. They went straight to "civil" matters. (Pissed off local commissioner of the revenue when I talked to her and made her realize this.)
So, if their "due process of threats and intimidation" doesn't work (i.e., coerce YOU into assuming burden of proof, which you and I both know the judge is going to shoot down and you'll lose, period), they have nothing left but, well, "civil remedies."
Now, to garnish or levy, they must do what?
Get a court order.
To get a court order, they must what?
Go to court.
To go to court, they& must what?
Drag you in there.
If they drag you in there, they have to "prove" their case.
They don't have a "case." They have no "legal" evidence.
Yes, by all means, DO make "timely reply" to this POS threat-letter. Go through it, word-by-word. Clearly state your "objections." Offer NOTHING.
Keep everything childishly simple. Sentences short, to the point.
Hell, you know how to do this.
DO submit an affadivit, affirming/swearing to the truth of this: You've received NO assessment, NO "proof of debt," NO verification of debt," etc.
And DO make sure to mention the "execution" thing.
They sent us a copy of a tax return that they had prepared for us initiallty a couple of months ago.&
Was it signed, under penalty of perjury? If not, it's not even good for scrap paper. If it was, whoever signed it is in a world of hurt because THAT'S the person who has "sworn" to have personal knowledge of "everything."
I used a letter that Randy had forwarded to me
Don't I have a way of bringing out the best in people?
They did respond back within the 30 day window-
And what was their response? A cleverly disguised admission that they can't "prove" their case, so they resort to the ONE thing they DO have: Power.& And what are they trying to do? To get YOU to PAY FIRST without THEM having to prove a damned thing.
Bullies. I hate 'em. Always have. Always will. And these agents are bullies.
(with a threat to kill my husband if he doesn't respond or pay his taxes!).
I'd definitely see the police about that.
Donna, you're going to be fine.
They've admitted that IF you do nothing, THEN they'll proceed with garnishment/levy.
Start researching those topics NOW so you will see, for yourself, without a court judgment, they can't even do that!
Doesn't mean they won't try!& Stand your ground. Fight 'em with the ONE thing against which they cannot defend themselves:
TRUTH
They can and will argue "law" and "case law" and stuff all day. They can NOT argue with YOUR TRUTH.
You got heart. You can't help but win.
Randy

#5 04-16-2004, 11:44 PM

[quote= wirlwind]

I'm not going to ask for the appeal.& I don't want it on their terms.& I want it on mine.&

Kick ass, Donna!

Randy

wirlwind · #6 04-17-2004, 12:13 AM

Randy,

Thanks so much for you advice, and also for the way you have of keeping people grounded.& I love your straightforward, no holds barred posts.& And thanks for the encouragement.& that is another reason why I love this site.& Everybody is so supportive.& We are all swimming through shark infested water, but it is like we are all holding the same rope and finding our way together.& Even though I have never met anyone on this site in person, I feel so close to so many people here.

Thanks again Randy, and thanks again Sui Juris, for making this site possible.&

Donna

#7 04-17-2004, 12:48 AM

I'm not going to ask for the appeal.& I don't want it on their terms.& I want it on mine.& they did ignore my first letter, and answered none of my questions and certainly didn't prove that they had the jurisdiction to do anything.&

~~~~~~~~~~~~~~~~~

They never answer any of your questions in a letter. You have to&ask&your&questions&in an administrative review hearing.& That's where you will get your questions answered or not answered and you will have evidence&in&case you have to sue them.

I would take them&up on every appeal&I had available and continue&to ask what their authority&is, and keep detailed records of those appeals.& Ask them what their authority is&to solicit information from you.& Keep a record of what they say and what they don't say.You need&evidence if you ever have to go to court.&

The Privacy Act is&powerful question to ask them and you don't have to tell them what you are going to ask them before the hearing.&

&

&If I ask for an appeal I would feel like that I was admitting that I am a taxpayer, and I know I am not.& Therefore I don't feel compelled to jump through their hoops.&

Jerseee · #8 04-17-2004, 04:26 AM

Donna,

Keep it simple. Why not give them what they want? Give them a good faith payment and ask those questions at the same time.

Give them your remedy. This is what the essence of HJR 192 is all about. Anyone demanding payment for any "purported obligation". If they have a problem with that, then ask why are they refusing a legal payment?

what say you?

rushpat · #9 04-17-2004, 07:42 AM

Their standard answer would probably be: "we only accept authorized negotiable instruments and yours doesn't qualify", or something like that. The issue is to force them to either accept it or tell why they won't.

When they say cash, check, money order etc, they are in violation of HJR192 and Public Policy 73-10. Also, the refusal to accept payment means that the debt is discharge under UCC 3-603(b). The toughest part is to convince them that they can't get any farther than this.

If you want to hear something interesting, listen to this file, it is only 3 minutes long:

http://www.suijuris.net/seminars/how...-%20sample.mp3

#10 04-17-2004, 11:02 AM

Hey, Rushpat....

Clicked the link. Great stuff 'cause here's what's been bothering the heck outta me for a long time, from Code of VA. On one hand, we have the "laws" which are the "Code of Va." On the other, we have the "common law of England" and "rights, etc. of Parliament..."

§ 1-1. Contents and designation of Code.

The laws embraced in this and the following titles, chapters, articles and sections of this act shall constitute, and be designated and cited as the "Code of Virginia," hereinafter referred to as "the Code" or "this Code."

§ 1-10. The common law.

The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly. 

§ 1-11. Acts of Parliament.

The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, insofar as the same are consistent with the Bill of Rights and Constitution of this Commonwealth and the Acts of Assembly.

§ 1-12. Commencement of statutes.

A. All laws enacted at a regular session of the General Assembly....

Me again:

In descending order of applicability, we&clearly have:

1) Laws enacted by the&General Assembly which have "altered" the common law.
2) Bill of Rights and Constitution of Virginia.
3) Common&Law/Parliament&

Now, the first thing I noticed must be a typo, right? After all, there's no mention of the "federal" Constitution and Bill of Rights. But leaving THAT aside 'cause I hate to confuse agents with the facts....

Now, how can I find the "law is copyrighted" stuff? (I'm betting it's in the front of the physical copies of the law books, right?)& The "laws are copyrighted" "argument" does carry profound weight. (I'll get busy with google in the meantime.)

Thanks.

Randy