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not a levy

not a levy

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Published by Colton Robert
we have all been lies to
we have all been lies to

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Published by: Colton Robert on Dec 14, 2012
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Page 1 of 21
A NOTICE OF LEVY IS NOT A LEVY
The apparent defense to this action raises substantial and critical questions ofConstitutional significance as to whether a notice of levy by the IRS amounts to a levy.Jurisdiction of this court is clearly proper, and a case against Union Planters Bankwould not be ripe if a levy has been perfected. Plaintiff submits arguments, including theplainly expressed Congressional intent, that warrants of distraint are required to effectan IRS levy. Additionally, better-reasoned case law requires warrants of distraint.Levies in the 1939 version of the Internal Revenue Code required warrants of distraint.In addition, continuing levies on wages were not permitted under earlier versions of theCode. Would Congress extend so destructive a power as the ability to effect continuinglevies on wages and withdraw the requirement of warrants of distraint and not say so?Particularly in light of the decision in
Sniadach v. Family Finance Corp 
., 395 U.S. 337(1969), that wages are special in the context of prejudgment garnishment under the14th Amendment, so extensive a power must offend 5th Amendment due process. Thiscourt must decide 1) whether there has been a valid levy; 2) if not, whether there hasbeen a valid exercise of the fiduciary responsibilities of the Defendant, because it is onlywhen there has been a valid exercise of the taxing power that more limited due processstandards apply, so the question of Plaintiff's dispute with the Defendant is valid in thatcontext. The court must then decide, if there was a valid levy and a valid exercise of thetaxing power, whether 3) the limits of 5th Amendment due process have been exceededby the prejudgment exercise of the power, particularly in light of
Sniadach 
; additionally,Plaintiff would contend that even if the court agreed with Defendant on all of the above,that the court would have to consider whether allowing the government so extensive apower to seize property without any local control and without a sworn affidavit, violatesthe 4th Amendment prohibition on unreasonable seizures.Plaintiff contends that by stealthy encroachment the Defendant and the IRS seek toerase the Congressionally mandated requirement that warrants of distraint issue beforethe IRS may seize property. The Fourth Amendment to the United States Constitutionrequires:
The right of the people to be secure in their persons, houses, papers, and effects, againstunreasonable searches and seizures, shall not be violated, and no Warrants shall issue, butupon probable cause, supported by Oath or affirmation, and particularly describing theplace to be searched, and the persons or things to be seized.United States Constitution, Bill of Rights, Article IV. (Emphasis added.)
 It is the duty of courts to protect the people from stealthy encroachment on their rights.In violation of federal law, no warrants of distraint were issued in this case. No onemade "Oath or affirmation" of probable cause concerning the alleged indebtedness, as
 
Page 2 of 21
the Constitution's warrant requirement mandates. A careful reading of the notice of levyshows the IRS does not even claim that it was a levy. Plaintiff asserts he is not subjectto liability for the alleged tax, that no proper assessment has been made, that he hasnot received the requisite notice and demand, and that no "seizure" has been made.Small wonder the IRS has not sworn to the debt as required by law. Allowing a notice oflevy to operate as a levy violates the 4th and 5th Amendments to the
United StatesConstitution
, the limitation on delegation of the lawmaking powers under theseparation of powers doctrine, and the clear intent of the legislators in the crafting andpassing of legislation concerning levies.Defense counsel has the burden of proving that there was a levy. Thus far, defensecounsel has failed in its obligation to advise the court of the applicable law. Calling thiscase "frivolous", as defense counsel has threatened to do, works a fraud on this court.Plaintiff asserts his right to a trial in part to determine exemplary damages for this legallyunauthorized levy on his property for which Defendant has frivolously failed to presentits affirmative defense to which Plaintiff could respond. Plaintiff will assume Defensecounsel's obligation to advise the court of the law.Damages and punitive relief is appropriate because Plaintiff will be irreparably harmedwithout it and because Plaintiff has a high likelihood of success on the merits, given theclearly expressed Congressional intent at the time of passage of I.R.C. Sec. 6331, theplain language of Sec. 6331, and the Constitutional clauses which would be violated byholding a notice of levy to be a levy.
I. A NOTICE OF LEVY IS NOT A LEVYA. The 6th Circuit Court of Appeals (and other courts) holds that a notice of levydoes not effect a levy; Congress specifically expressed its intent to continue levyand distraint procedures which recognize this law.
Better reasoned and on point case law, and particularly the law of the 6th Circuit, holdsthat a notice of levy is not a levy and does not accomplish the distraint required byI.R.C. Title 26 Section 6331.
United States v. O'Dell 
, 160 F.2d 304 (1947);
Williamson v. Boulder Dam Credit Union 
, Justice Court, Boulder Township, Nevada,
Case#97A017, decided May 19, 1998, copy attached to original complaint in this action, arecent case which made a fresh and more thorough examination of the question ofwhether a notice of levy effects a levy and held it does not.
Boulder 
is one of the few contemporary, competent efforts to more thoroughly reviewthe relevant precedent, but even
Boulder 
, which held that a notice of levy is not a levy,and did not have the clearly expressed intention of the legislature before it to consider. Itis now more obvious than it was at the time of the
Boulder 
opinion that a notice of levyis not a levy.
 
Page 3 of 21
While
O'Dell 
was decided prior to implementation of the 1954 Code, Congressionalintent was to continue the existing law relating to distraint and levy:
Sec. 6331. Levy and distraintThis section continues in effect the provisions of existing law relating to distraint andlevy (see secs. 3690 and 3692 of the present Internal Revenue Code).
U.S. CodeCongressional and Administrative News
, Vol. 3 (1954).
 As to those "provisions of existing law" and whether a notice of levy effects a levy,
United States v. O'Dell 
, 160 F.2d 304 (1947), is directly on point. There it was held thata Collector's notice to a trustee in bankruptcy that there were unpaid taxes due from thebankrupt, and that all money and other property in his hands belonging to the bankruptwas seized and levied upon for payment of the taxes did not constitute a seizure of suchproperty but was only a statement or notice of claim'Nothing alleged to have been done amounts to a levy, which requires that theproperty be brought into legal custody through seizure, actual or constructive,levy being 'an absolute appropriation in law of the property levied upon.' Levy isnot effected by mere notice. No warrants of distraint were issued here.'(Emphasis added)
O'Dell 
,
supra 
, 160 F.2d at 307.The 7th Circuit followed
O'Dell 
in
Givan v. Cripe 
, 187 F.2d 225 (1951):“As we read the allegations of the petition, it asserts a threat to distrain ratherthan an actual distraint… The facts here, insofar as the procedure is concerned,appear to be quite similar to those in
United States v. O'Dell 
, 6 Cir., 160 F.2d,304, 307. There it was held that a Collector's notice to a trustee in bankruptcythat there were unpaid taxes due from the bankrupt, and that all money and otherproperty in his hands belonging to the bankrupt was seized and levied upon forpayment of the taxes did not constitute a seizure of such property but was only astatement of notice of claim… We think the same is true in our case. So far asthe petition shows, there was no seizure, but only a threat of seizure - the petitionalleges that the Collector threatens to issue a warrant of distraint.” (Emphasisadded)
Givan v. Cripe 
, 187 F.2d at 227-228.
O'Dell 
has never been overruled and is still the law in the 6th Circuit.In
Freeman v. Mayer 
, 152 F. Supp 383 (1957), the court held that a levy for delinquenttaxes pursuant to the 1939 Internal Revenue Code, required execution of warrant fordistraint:“The distress authorized by Sec. 3690 is different from anything known to thecommon law, both because it authorizes a sale of the property seized, andbecause it extends to other personalty than chattels. By its very nature it requires

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