Need Help-Again

[wirlwind]

Okay, my husband got a certified letter form alabama Dept. of revenue about a hearing that has been scheduled on Sept. 3. On April 26, I sent them a CPN for the entire amount they say that we owee. (they prepared a tax return for us). I sent a VOD letter before the CPN. On May 5, I got a letter from the Administrative Law Divisioin that they were scheduling a hearing for us, and we would get a certified letter in 30-60 days notifiying us of the time and palce, and give us their answer. July 5 would have been 60 days. The date of the answer we recieved is August 6. That is over 90 days.. below are copies of the letters I got from them, and also the Alabama Taxpayers Bill orf rights which says something about the time factor in giving their answer and schedulaing the hearing. Based on the fact thst it took 90 days to hear from them again and schedule the hearing, and their is no mention that remedy has been given, and from what the taxpayers bill of rights says about the time frame, can I move for dismissal?



Here goes:

XXXX XXXX § STATE OF ALABAMA

0000 XXXXXXXX Road DEPARTMENT OF REVENUE

XXXX, XX 00001, § ADMINISTRATIVE LAW DIVISION

Taxpayer, § DOCKET NO. INC. 04-410

V. §

STATE OF ALABAMA §

DEPARTMENT OF REVENUE.



NOTICE OF HEARING



Pursuant to the provisions of Code of Ala. 1975, §40-2A-9, a formal hearing is set in this case for 11:00a.m., September 3, 2004 at the Revenue Department’s Birmingham Taxpayer Service Center, 2024 3rd Avenue North, Birmingham, Alabama. The matter in dispute is as follows:



A disputed final assessment of 2000 income tax entered by the Department against XXXX XXXXXX. A copy of the Revenue Department’s Answer is enclosed.



The hearing will be conducted by an Administrative Law Judge and will be recorded by a court reporter. You may represent yourself, but if you wish to be represented by an attorney or other authorized representative, a power of attorney must be executed with this office.



If you have any questions, you may contact this office at 4118 Gordon Persons Building, Montgomery, Alabama 36104 or phone (334) 242-1075.



Entered August 9. 2004.





BILL THOMPSO N

Chief Administrative Law Judge

bt.dr

cc: J. Wade Hope, Esq.

David R. Storm (w/enc)

Kim Peterson

Administrative Law Division Legal Division



August 6. 2004

oN.





XXXXX XXXXXX

0000 XXXXX Road

XXXX, XX 00001



Taxpayer,



v.





STATE OF ALABAMA DEPARTMENT OF REVENUE.

§



§



§



§



§



§



ANSWER

Docket No. INC. 04-410

Facts:



A final assessment for individual income tax was entered against the Taxpayer, XXXX XXXXXX, on April 1, 2004, in the amount of $0,000.00 for the calendar year 2000. The final assessment is based upon the Taxpayer’s failure to file an individual income tax return for the tax year 2000 despite having sufficient income to require him to file an inccme tax return pursuant to Code of Alabama 1975, §40-18-27. Based upon information received from the Internal Revenue Service, it was determined that the Taxpayer had received interest income, miscellaneous income, and retirement income totaling at least $00,000.



The Taxpayer in response to the preliminary assessment did not specify any specific objections to the preliminary assessment. The Taxpayer simply disclaims any

liability in general terms and challenges the authority of the Department. Following the receipt of the Taxpayer’s response, the Department entered the final assessment.



The Taxpayer’s Notice of Appeal challenges the authority of the Department to enter an assessment against him. The Notice of Appeal appears to be part of a scheme designed to protest the tax. The Notice provides very little facts or basis to dispute the amount of the tax due for the year 2000 in the final assessment. It is respectfully submitted that the final assessment is prima facie correct in the absence of any evidence disputing the correctness of the figures entered and is due to be affirmed.







J. WADE HOPE (HOPOO4)

Assistant Attorney General,

State of Alabama, and Assistant Counsel,

Department of Revenue

P.O. Box 220001

Montgomery, AL 36132-0001

(334) 242-9690



mt

ADOR - Office of the Commissioner Rule 810-14-1-24 Page 1 of2







ALABAMA DEPARTMENT OF REVENUE



OFFICE OF TILE COMMISSIONER



TAXPAYERS Bill OF RIGHTS

AND UNIFORM REVENUE PROCEDURES





810-14-1 -.24. Appeals to the Administrative Law Division - Authority of Administrative Law Judge.



(1) Notice of Appeal - Form A notice of appeal to the Administrative Law Division must specify the taxpayer’s name and address, the act or refusal to act that is the subject of appeal, the grounds for the appeal, and the relief sought. If the notice of appeal does not contain sufficient information, the taxpayer may be required to provide such additional information as directed by the Administrative Law Judge. In such cases, the Department’s time for filing an answer shall be suspended and the Department shall be allowed such time to file an answer as directed by the Administrative Law Judge.



(2) Department’s Answer to Notice of Appeal



(a) The Administrative Law Division shall notify the Legal Division that a notice of appeal has been filed, and the Legal Division must file an answer to the notice of appeal with the Administrative Law Division within thirty (30) days from receipt of such notice or as otherwise allowed by the Administrative Law Judge. The Administrative Law Judge may, for good cause, allow the Department up to sixty (60) days additional time to file an answer. Any request for additional time must be made in writing to the Administrative Law Division within the time allowed for filing an answer, with a copy to the taxpayer or the taxpayer’s representative. The request must set out the specific reasons why additional time is necessary. Additional time to file an answer may also be granted, without a written request, at the discretion of the Administrative Law Judge.



(b) A request for additional time by the Legal Division shall suspend the time for filing an answer, and the Department shall thereafter have such time to answer (not to exceed 60 days) as allowed by the Administrative Law Judge.



(3) Failure to Comply with Statute or Order - Authority of Administrative Law .Judg.e. The Administrative Law Judge has general authority over all matters before the Administrative Law Division. If a taxpayer or the Department fails to comply with any statute or regulation concerning appeals to the Administrative Law Division or with any “preliminary order” issued by the Administrative Law Judge, the Administrative Law Judge shall have discretion to dismiss the appeal, grant all or part of the relief sought by the taxpayer, or take any other action appropriate under the circumstances. Such action shall be designated an “order dismissing appeal” or “order granting relief to taxpayer,” as appropriate under the circumstances, from which either party may appeal as allowed by Sections 40-2A-9(b) and 40-2A-9(g), code of Alabama 1975. The order of the Administrative Law Judge shall be upheld by the circuit court unless the court finds an abuse of discretion by the Administrative Law Judge or that the order is otherwise unreasonable.



(4) Appeal of Case Voluntarily Dismissed by Taxpayer A taxpayer may request the Administrative Law Judge to dismiss an appeal before the Administrative Law Division at any time before entry of an “opinion and preliminary order” or, if no “opinion and preliminary order’ has been entered, prior to entry of a “final order’ in the case. If an appeal is voluntarily dismissed, the dismissal shall be designated a “final order dismissing appeal,” which may be appealed to the circuit court within thirty (30) days as provided by Section 40-249(g), code of Alabama 1975. All other applicable requirements for an appeal to the circuit court must be satisfied.





(a) The intent of this paragraph is to allow a taxpayer to dismiss any appeal to the Administrative Law Division without prejudice any time prior to entry of an order on the merits by the Administrative Law Judge. The taxpayer will then be allowed thirty (30) days after entry of the “final order dismissing appeal” to appeal the substance of the mailer in dispute, i.e. final assessment, refund, etc., to circuit court.





(5) Opinion and Preliminary Order The Administrative Law Judge may, in the appropriate circumstances, issue an “opinion and preliminary order’ setting forth findings of facts and conclusions of law and directing the Department or the taxpayer to take additional action as necessary under the circumstances (for example, recalculate tax or refund, produce additional records, etc.). In such cases, a subsequent “final order’ will be issued from which either party may appeal.



(6) Appeal A “preliminary order” as provided by Section 40-2A-9(b), Code of Alabama 1975,or an “opinion and preliminary order” as provided in paragraph (5) above are not appealable orders. Only a “final order” designated as such may be appealed, or an “order dismissing appeal” as provided in paragraph (3) above; or a “final order dismissing appeal” as provided in paragraph (4) above, may be appealed to circuit court.



(7) ApplIcation for Rehearing



(a) Either party may file an application for rehearing within fifteen (15) days after entry of a “final order.” Either party may also file an application for rehearing within fifteen (15) days after entry of a “preliminary order’ or “opinion and preliminary order’ if the party asserts in good faith that the facts or conclusions of law set out therein are incorrect, or that the action required by the “preliminary order” or “opinion and preliminary order’ is unreasonable.



(b) A timely filed application for rehearing of a “final order’ shall suspend the time for taking an appeal to circuit court. In such cases, an appeal to circuit court may be taken within thirty (30) days after entry of a “final order on application for rehearing.” If an application for rehearing is filed relating to a “preliminary order’ or an “opinion and preliminary order,” then the Administrative Law Judge shall issue a “order on application for rehearing.” Such order is not appealable to circuit court, and no appeal may be taken until a “final order” is entered in the matter.



(Act 92-186) (Adopted through APA effective August 19, 1993)







I know it is long. All opinions and ideas will be appreciated. Time is kind of critical too.

Oh, and if I represent my husband, does he have to signa power of attorney over to me and does it have to be presented to the court before the hearing?



Thanks,

Donna

[Ice]

If they are "required by law" to perform within those bounds.. then yes. They had their chance and they blew it. Notice words like "must". Who "must" do what? And if they don't do that ... then what?



You're on the right track... at least you're thinking and not playing dead like the "sleepers" out there. (I actually had a woman say to me that she was "afraid" of what the IRS might do !! My simple reply was: "What would you do if you weren't afraid?")

[wirlwind]

Ice,



Thanks. I'm going to go ahead and get a motion for dismissal done and then get it filed , and then send a copy to the ADR. If it in't dismissed and we do end up going to the hearing, then I am going to take another CPN and present it to them in front of the Judge and court reporter. Then I will see if they will not accept it.



In the motion for dismissal should I mention that I have already tendered a CPN? That I already consider the debt discharged per HJR-192, or should I just file it on the time factor?



Thanks,

Donna

[Ice]

hmmm... Motion to Dismiss... or Motion for Default Judgment? Think about it... they did "default", didn't they?



You could throw everything you want in your motion... or "petition". But, you may cloud the issue with too much. Keep it simple and see what happens? You can always bring in the rest of it later.

[wirlwind]

I guess they did. Is the default judgment done like the Motion to Dismiss? I've never done this, so I'm not sure what format to use. Also, I will need to submit the letter that they sent me saying that they would respond in 30-60 days- would that be submitted into evidence when I send the Motion for a Default Judgement?



I've known that I would have to go to court someday, and I guess I am ready to tackle it, but it does scare me. This is new territory for me.



Thanks,



Donna

[Ice]

All court docs are pretty much the same.... just titled different. You may want to submit a Judicial notice of the law that states they MUST respond or whatever as well as file a copy of their letter into the evidence file... with an affidavit in support stating all the facts as to their NOT having performed per the Law.

[weaponx71]

After reading the familygaurdian.com site for quite some time, something struck me as odd.



You say the filed a tax return for you.

That in itself is a huge no no. If you look through the gaurdian site, I believe now you can haul the Secretary of Treasurey into this.

For some reason I keep thinking that ultimately if they file a return for you then HE accepts full responsibility.

But I also think that the code evens says that the CANT do that.



the familygaurdian has the codes.



Maybe browse over that as well, I say the more you can haul into it and bring to the surface the more ammo you will have and the better chances you have of winning.



I will browse, but please browse the site for yourself and see what you can find.



WeaponX

[Ice]

Are you speaking of the "Substitute Return" stuff? See, a substitute return can only take the place of one that is already there... if there isn't one there then they cannot file one. At least I believe that is how the discussion went.



Was that what you were referring to weaponx?

[wirlwind]

We didn't file. They did it all on their own. I sent all the letters asking them the about the jurisdiction stuff and all, and got the form letters back. When I sent the CPN then we got an actual signed letter within a few days.



Donna

[rushpat]

Weaponx, keep in mind that the famguardian site deals primarily with the federal tax, and this issue is the state tax. We would probably do well to see what the Alabama codes say about this. Most likely, it is the same, as all states that have an income tax base them, to different degrees, on the IRC.



Whirlwind, you might want to try to find out who signed that substitute form and if it was under penalty of perjury. If they didn't, then it is an incomplete form.



Also, does Alabama returns require a copy of the federal return for that year? I know my state does. If you didn't file federal for that year, then there is no way you can file a state return if it requires a copy of the federal return as well.