26 USC 6065 - to whom does it apply, and why?

Regarding the question about 27 USC 6065 ""

On 2014-10-23 21:09, The Furniture Store wrote:

Doesn't it apply to all returns?  And if that is the case why do none of the Substitute For Return forms that I have received have a Jurat attached to them, signed by the preparer?  Please go forward with this subject.  Thanks, David

IRC 6065 "Verification of Returns"says this:

Except as otherwise provided by the Secretary, any return, declaration, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury.

IRC 7806 "Construction of title"says this:

(a) Cross references

The cross references in this title to other portions of the title, or other provisions of law, where the word “see” is used, are made only for convenience, and shall be given no legal effect.

(b) Arrangement and classification

No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title, nor shall any table of contents, table of cross references, or similar outline, analysis, or descriptive matter relating to the contents of this title be given any legal effect. The preceding sentence also applies to the sidenotes and ancillary tables contained in the various prints of this Act before its enactment into law.

I don't know about you, but 6065 and 7806 make perfect sense to me.  However I promise the IRS, DOJ, and Courts don't agree that they mean precisely what they say.

You could argue that 6065 applies to "any ...document required to be made under any provision of the IR laws or regulations" unless the Secretary stipulates otherwise.  That would include of course an assessment by an assessment officer.  I have never seen an assessment, and I have never seen a 4340 computer printout offered in lieu of an assessment signed under PoP by a person I knew was a duly constituted assessment officer.

You could argue that the IRC requires in numerous provisions that the "Secretary shall" make some list or document, and so 6065 must apply to all those. 

Well, maybe so, but the SD New York USDC in Morelli v Alexander opined otherwise, as shown in red in the opinion below.  Furthermore, the regulation 6065-1 goes on and on about how it applies to tax returns.

Section 6065 was enacted to permit the taxpayer to submit a verified return rather than a notarized return, see, e.g., Cohen v. United States, 201 F.2d 386, 393 (9th Cir.) (construing § 6065's predecessor provision), cert. denied, 345 U.S. 951, 73 S.Ct. 864, 97 L.Ed. 1374 (1953), and does not apply to notices issued by IRS agents.^[3] See Pursell v. United States, 1995 WL 273175 at *6 (E.D.Cal.1995); Mueller v. Esselstrom, 1995 WL 462219 at *2-3 (C.D.Cal.1995); In re White, 168 B.R. 825, 833 (Bankr.D.Conn. 1994)

That opinion also addresses the fact that the IRS does not have to file a Substitute Return.

The above-cited Mickey Cohen opinion provided this elucidation about the predecessor to 6065:

We think the congressional intent in enacting § 3809 was merely to simplify the task of both taxpayer and the Bureau of Internal Revenue by permitting a verified return to be substituted for a notarized return in certain situations.¹² Section 3809(a) was apparently intended to take the place of 26 U.S.C.A. § 145(c),¹³ which was repealed. The statutes in question describe different offenses. 18 U.S.C.A. § 1001 prohibits knowing and wilful oral or written false statements made in a matter within the jurisdiction of any department or agency. 26 U.S.C.A. § 3809 is concerned with the verification of a written return, statement or other document which is not believed to be true and correct as to every material matter.

12.

The pertinent committee report states as follows: 
"Section 4. Verification of Returns. 
"This section gives the Commissioner authority to eliminate the oath in the case of corporate, fiduciary, partnership, estate, and gift-tax returns, and other returns or statements. The present law eliminates the oath in the case of individual income-tax returns and employment-tax returns. These changes will not only relieve the taxpayers of the burden of notarizing their returns but will expedite the processing by the Bureau of returns which might otherwise have to be sent back for compliance with the oath requirement." Sen.Rep.No.685, 81st Cong., 1st Sess., Part II, § 4 (1949).

So, I guess if you don't like the IRS and Courts ignoring the obvious, technical letter of the law by letting IRS operatives sign little or NOTHING under penalties of perjury, you'll just have to take it up with the Supreme Court or Congress.  But HEY, if you want to argue it in your case, be my guest.  And please let me know how it turns out for you.

I just feel sorry for any poor bastard who reads the IRC and thinks it means exactly what it seems to say.  One of my buddies says we should read it with common sense (meaning the income tax applies to everyone earning income over a certain amount, and everyone receiving revenue over a certain amount must file a tax return), and that the intent of Congress in 6065 is obvious.  He did not want to admit that technically if the Secretary didn't prescribe otherwise, government employees must sign under PoP every document the IRC requires them to make. And he must have remembered reading this opinion from nearly 40 years ago:

• "When general words follow an enumeration of persons or things, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. That rule is one of limitation, restricting general terms, such as "any other" and "and the like," which follow specific terms, to matters similar to those specified." See, e.g., United States v. La Brecque, 419 F.Supp. 430, 434 (D.N.J.1976).

In light of this opinion, and the location of 6065 among similar provisions, the student should probably conclude that 6065 only applies to tax returns and similar reports from the taxpayer to the IRS.

You might ask yourself whether your tax mess would turn out any different if the IRS agents signed all their documents under Penalties of Perjury, and whether that would just become a big waste of time.  You'll probably conclude that no, it would not do any good, and yes, it would be a waste of time.

Maybe instead of worrying about these technical distractions it would make more sense to figure out how to maximize your wealth and minimize your tax burden, focusing first on the wealth, and second on how LAWFULLY to keep the IRS, the mafia, your local cops, the FBI, burglars, robbers, thugs, and runaway lovers and spouses from getting it. 

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Bob Hurt            Blog 1 2   f  t  2460 Persian Drive #70 Clearwater, FL 33763 Email Call: (727) 669-5511 Law Studies: Donate   E-Letter Subscribe Learn to Litigate with Jurisdictionary

 http://scholar.google.com/scholar_case?case=15231457593792647952&q=%2226+USC+%C2%A7+6065%22&hl=en&as_sdt=40003

920 F.Supp. 556 (1996)

John D. MORELLI, Plaintiff,
v.
Eugene ALEXANDER, Arthur L. Brunwasser and Carol M. Landy, Defendants.

No. 95 CV 7057.

United States District Court, S.D. New York.

April 4, 1996.

557*557 John D. Morelli, Garnerville, NY, pro se.

Mary Jo White, United States Attorney, Daniel S. Alter, Asst. U.S. Atty., New York City, for Defendants.

MEMORANDUM DECISION

PARKER, District Judge.

This action for mandamus is before this Court on Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Pro se Plaintiff John D. Morelli ("Morelli") brings this action under 28 U.S.C. § 1361 to compel Defendants, Eugene Alexander, Arthur L. Brunwasser and Carol M. Landy, agents of the Internal Revenue Service ("the Agents"), to strictly comply with the Internal Revenue Code and regulations.

Morelli charges that the Agents violated various duties under the Internal Revenue Code when they sent him several official notices without signing them under penalty of perjury, 26 U.S.C. § 6065,^[1] when they failed to prepare a tax return for him, 26 U.S.C. § 6020, and when they sent him a defective Notice of Intent to Levy, 26 U.S.C. § 6031.

DISCUSSION

A. Mandamus Jurisdiction

A motion under Rule 12(b)(1) challenges subject matter jurisdiction. The federal courts are, of course, courts of limited jurisdiction. See Owen Equip. & Erection Co. v. Kroger,437 U.S. 365, 374, 98 S.Ct. 2396, 2402-2403, 57 L.Ed.2d 274 (1978). A federal court is presumed to lack jurisdiction in a particular case unless jurisdiction is established. See W.G. v. Senatore, 18 F.3d 60, 64 (2nd Cir.1994). Here, Morelli asserts that the Court has subject matter jurisdiction under the Mandamus Statute, 28 U.S.C. § 1361, which provides:

558*558 The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

28 U.S.C. § 1361.^[2]

Mandamus is a drastic remedy available only in extraordinary situations. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189-90, 66 L.Ed.2d 193 (1980). Mandamus is available only when three conditions are met: (1) the plaintiff has a clear right to the relief sought, (2) the defendant has a plainly defined and peremptory duty to perform the act in question, and (3) no other adequate remedy is available. See Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir.1989). Where the party seeking relief under § 1361 fails to demonstrate the existence of any of the necessary criteria, mandamus is not available. See, e.g., Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir.1983).

1. The Agents Failure to Verify the Notices

Morelli argues that the Agents violated their duty under 26 U.S.C. § 6065 by failing to sign the notices that they sent to Morelli. Section 6065 states:

Except as otherwise provided by the Secretary, any return, declaration statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury.

Morelli has incorrectly interpreted this provision. Section 6065 was enacted to permit the taxpayer to submit a verified return rather than a notarized return, see, e.g., Cohen v. United States, 201 F.2d 386, 393 (9th Cir.) (construing § 6065's predecessor provision), cert. denied, 345 U.S. 951, 73 S.Ct. 864, 97 L.Ed. 1374 (1953), and does not apply to notices issued by IRS agents.^[3] See Pursell v. United States, 1995 WL 273175 at *6 (E.D.Cal.1995); Mueller v. Esselstrom, 1995 WL 462219 at *2-3 (C.D.Cal.1995); In re White, 168 B.R. 825, 833 (Bankr.D.Conn. 1994). Accordingly, Morelli has failed to satisfy the second prong for mandamus jurisdiction which requires that there exist a plainly defined and peremptory duty to be performed. See Mueller,1995 WL 462219 at *2-3 (action to require IRS agent to sign Notice of Intent to Levy failed to satisfy jurisdictional requirements of 28 U.S.C. § 1361). Further, other adequate remedies are available to Morelli, such as paying the assessed taxes and seeking a refund pursuant to 26 U.S.C. § 7422. See Mueller, 1995 WL 462219 at *3. See also Davidson v. C.I.R., 589 F.Supp. 158, 161-62 (S.D.N.Y. 1984) (injunction restraining IRS from enforcing a levy denied because payment of the tax assessed followed by a suit for refund constitutes an adequate remedy). Morelli therefore also fails to satisfy the third requirement for mandamus jurisdiction.

2. The Agents' Failure to Make a Substitute Return

Section 6020(b)(1) authorizes the Secretary to make a substitute tax return for any person who fails to make one on his own. Morelli requests the remedy of mandamus which would have the effect of ordering the Agents to prepare a tax return for him. However, section 6020 does not require the IRS to prepare a return for the taxpayer before issuing a notice of deficiency. See, e.g., Schiff v. United States, 919 F.2d 830, 832-33 (2nd Cir.1990), cert. denied, 501 U.S. 1238, 111 S.Ct. 2871, 115 L.Ed.2d 1037 (1991); United States v. Stafford, 983 F.2d 25, 27 (5th Cir.1993); Geiselman v. United States, 961 F.2d 1, 5 (1st Cir.), cert. denied, 506 U.S. 891, 113 S.Ct. 261, 121 L.Ed.2d 191; 559*559 Roat v. C.I.R., 847 F.2d 1379, 1381 (9th Cir. 1988). Consequently, the Agents have no duty to file a return for Morelli, and the Court lacks mandamus jurisdiction over this claim as well.

B. Morelli's Challenge to the Adequacy of the Notice of Intent Is Barred by the Anti-Injunction Act

Morelli's final argument is that the Notice of Intent, dated January 18, 1993, fails to comply with the substantive requirements of 26 U.S.C. § 6331(d)(4).^[4] We do not reach the merits of this claim because Morelli's action to seek review of the Notice is barred by the Anti-Injunction Act, 26 U.S.C. § 7421. See Randell v. United States, 64 F.3d 101, 106 (2nd Cir.1995). The purpose of § 7421 is to protect the government's need to assess and collect taxes as expeditiously as possible with a minimum of pre-enforcement judicial interference, and to require that the taxpayer's legal rights be determined in a suit for refund.^[5] See Randell, 64 F.3d at 106. Section 7421 has been broadly construed to include not only assessment and collection, but also "activities which are intended to or may culminate in the assessment or collection of taxes." Linn v. Chivatero, 714 F.2d 1278, 1282 (5th Cir.1983). See also Weiner v. I.R.S., 986 F.2d 12, 13 (2nd Cir.1993) (taxpayer suit seeking apology or explanation of errors that caused improper levy barred by 26 U.S.C. § 7421); Bianco v. I.R.S., 1994 WL 538020 at *2 (S.D.N.Y. 1994) (claim regarding the state of taxpayer's records and requests for corrections barred by 26 U.S.C. § 7421). Therefore, the Anti-Injunction Act divests this Court of jurisdiction to hear Morelli's claim for preenforcement review of the Notices he received under 26 U.S.C. § 6331.

CONCLUSION

For the reasons stated, Defendants' motion to dismiss is granted.

The clerk shall enter judgment.

SO ORDERED.

[1] Morelli was sent a Notice of Federal Tax Lien, three Notices of Intent to Levy, a Notice of Deficiency, and an Overdue Tax Return Notice.

[2] Morelli sues the Agents in their "personal and individual capacities" rather than in their official capacities in an apparent attempt to prevent the Department of Justice from representing the Agents. However, 28 U.S.C. § 1631 refers only to the official acts of government officers and therefore does not give this Court jurisdiction over their personal conduct. See Cook v. Arentzen, 582 F.2d 870, 876 (4th Cir.1978); Mueller v. Esselstrom, 1995 WL 462219 at *3, n. 2 (C.D.Cal. 1995).

[3] 26 U.S.C. § 6331(d)(4), which prescribes what must be included in a Notice to Levy, does not require the signature of an IRS official.

[4] Section 6331 allows the IRS to levy the property of a deficient taxpayer provided that the taxpayer is given at least thirty days notice of the Secretary's intent to levy. Section 6331(d)(4) requires that the Notice of Intent to Levy include a brief nontechnical statement informing the taxpayer of, inter alia, (A) the provisions of the internal revenue code relating to levy and sale of property, (B) the procedures applicable to the levy, (C) the administrative appeals available to the taxpayer with respect to such levy, and (D) the alternatives available to prevent such levy (including installment agreements under section 6159).

The Notice of Intent to Levy, dated July 12, 1993, satisfies each of the criteria listed under § 6331(d)(4), but the Notice dated January 18, 1993, neglects on its face, to include the information required under § 6331(d)(4). The fourth sentence of the third paragraph of the January 18, 1993 Notice, however, states that a publication with additional information concerning the levy procedures was enclosed with the Notice of Intent to Levy. Morelli does not deny receiving this publication but charges that the intent of 6331(d)(4) is not satisfied unless the required information is included in the Notice itself.

[5] A limited exception to the Anti-Injunction Act, not applicable to the facts in the present case, exists if (1) it is clear that under no circumstances could the Government ultimately prevail on the tax liability issue, and (2) the taxpayer would suffer irreparable injury if the government were not enjoined. See Randell, 64 F.3d at 106-07(citing Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)).