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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA



CHAKA FATTAH, JR., : CIVIL ACTION
Plaintiff :
:
v. : No. 14-1092-TJS
:
UNITED STATES OF AMERICA, et al., :
Defendants

PLAINTIFFS BRIEF IN SUPPORT OF HIS REPLY TO DEFENDANTS MOTION
TO DISMISS CLAIMS UNDER PRIVACY ACT AND 26 U.S.C. 7431, 7433 and
DEFENDANTS MOTION FOR SUMMARY JUDGMENT AS TO CLAIM FOR
REFUND OF PENALTIES

Defendants went to extraordinary lengths in its motion that border on fantasy, as well
as lack of both basic logic and common sense. However, Plaintiff has addressed Defendants
claims in significant detail, with authority at the District Court, Circuit Court, and U.S.
Supreme Court levels of the Federal Court System. If not all, most of Defendants Claims fail.
The following response was drafted using the same numbering and/or lettering as used by
Defendants in their brief (Doc. 14-1).
Defendants brief for its motion (Doc. 14-1) attempts to use skepticism and a lack of
information or knowledge of the facts to attempt to sway this Court at the beginning of their
Brief. Defendant brief for its motion states He alleges the agents served him with a
subpoena. and he alleges various news outlets carried news reports - and photographs -
about a raid by federal agents, including the FBI and the IRS. Plaintiff submits the two
subpoenas referenced in the Amended complaint (Doc. 11 12) as Exhibit 1 for this filing.
Plaintiff requests that the Court take judicial notice of the fact that the Washington
Times article Lawmakers son target of federal search is published online, See http://
www.washingtontimes.com/news/2012/feb/29/lawmakers-son-target-of-federal-search/ (last
visited May 27, 2014) and is identical to Pages 2 & 3 of Exhibit 3 of the Amended Complaint
(Doc. 11) and the fact that the March 1, 2012 philly.com and Philadelphia Inquirer story
U.S. probe said to focus on Fattah sons company, paid by firm with ties to Phila. schools
See http://articles.philly.com/2012-03-01/news/31114005_1_agents-firm-investigation (last
visited May 27, 2014); see also Fed. R. Evid. 201. Plaintiff notes that the U.S. probe
said story shows a picture of plain clothes federal agents walking across the street
towards Plaintiffs then office at Two Logan Square, Philadelphia PA 19103. Plaintiff notes
the picture was taken (according to the site) by David Swanson, Staff Photographer for the
Philadelphia Inquirer. Plaintiff notes that the Philadelphia Inquirer sent staff photographer Ed
Hille to Plaintiffs residence to take the pictures prior to 6:15 a.m. on February 29, 2012. The
photographers names appear in news stories referenced here and in the Amended Complaint.
Plaintiff respectfully requests that the Court also take judicial notice of the fact that the
original philly.com story, is published online showing a date of February 29, 2012 FBI
seizes records of Rep. Fattahs son. See http://mobile.philly.com/news/breaking/?wss=/
philly/news/breaking&id=140881403&viewAll=y (last visited May 23, 2014); see also Fed.
R. Evid. 201. Plaintiff requests that the Court take judicial notice that the photograph used in
the story, is shown on Exhibit 1 of the Amended Complaint (Doc. 11-1), the time and date
listed (11:52 a.m. on Feb. 29, 2012), and the text of the article. Plaintiff notes, and ask the
Court to take judicial notice that by clicking Gallery on that page (near the top), it leads to
http://mobile.philly.com/news/breaking/?galleryid=140881403&articleid=140881403 which
shows that the picture was credited to Ed Hille / Staff Photographer. (See Exhibit 2)
Plaintiff also notes that no part of Defendants brief for its motion (Doc. 14-1) says
that the photographs in the Amended Complaint Exhibit 1 are not of FBI or IRS agents.
Plaintiff contends that FBI agent William D. McGee is the individual closest to the camera,
on the right hand side, of the second picture on Page 2, on Exhibit 1 of the Amended
Complaint (Doc. 11-1). A copy of FBI Agent William D. McGees business card is attached
with other cards given directly to Plaintiff by the agents on February 29, 2012 prior to
7:00a.m (See Exhibit 3) in the morning. Hence, Plaintiff contends that it is not merely an
allegation, as Defendants contend. Plaintiff also submits that the Receipt for property
seized(See Exhibit 3) is signed by FBI Agent William D. McGee and Plaintiff, and is
clearly dated February 29, 2012, which, together with the photograph of Agent McGee and
other agents walking into the Residences at the Ritz-Carlton, should remove any doubt as to
whether Agent McGee was, in fact, at the Ritz Carlton related to Plaintiff on February 29,
2012.

ORAL ARGUMENT

Plaintiff respectfully requests Oral Argument on Defendants Motion to Dismiss and
Motion for Summary Judgment and Brief (Doc. 14). According to L. Civ. R. 7.1(f), any
interested party may request oral argument on a motion.
Plaintiff contends that the parties briefing on Defendants Motion raise extraordinarily
consequential legal issues that would surely benefit from oral argument before this Court.
Oral argument in this matter will ensure the Courts decision in this matter is based on the
full, complete picture of the arguments regarding the Defendants Motion to Dismiss (Doc.
14). Whether or not to grant oral argument on a motion is within the Courts discretion.
Plaintiff contends that Defendants argument for dismissal raise legal issues of paramount
constitutional importance, and under 26 U.S.C. 7433, 6304 and 7431, 6103, and even
the Privacy Act. As fully described hereafter the majority of Defendants claims are without
merit and the Motion to Dismiss and Summary Judgment should both be Denied.

FACTUAL OR FACIAL ATTACK, NOT BOTH

Defendants Motion states that Plaintiffs complaint is insufficient to establish
jurisdiction, which would trigger a facial attack and further states But the United
States present motion is also a factual attack on jurisdiction. Also is a key word in the last
sentence. A Motion to Dismiss pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction may challenge the courts jurisdiction on either factual or facial grounds. See
Turicentro, S.A. v. American Airlines Inc., 303 F.3d 293, 300 n.4 (3d Cir.2002). The same
case (Turicentro) the court states further that a failure to allege subject matter jurisdiction is
known as a facial challenge, and must not be confused with a factual challenge
contending that the court in fact lacks subject matter jurisdiction, no matter what the
complaint alleges, as factual challenges are subject to different standards. In their view and
Plaintiffs view the Defendants should have made a choice as to whether to challenge on
facial or factual grounds to dismiss and their failure to do so is not in accordance with
the law. Defendants claims as to jurisdiction should be limited to either a facial attack or a
factual attack, or the respective claims should be denied on that basis alone. However,
Plaintiff responds hereafter to all of Defendants claims.

LEGAL STANDARDS

Federal courts must construe pro se complaints liberally, and such complaints are
held to less stringent standards than those drafted by attorneys. Bush v. City of Philadelphia,
367 F. Supp. 2d 722, 725 (E.D. Pa 2005) See also Perlberger v. Caplan & Luber LLP, 152 F.
Supp. 2d 650, 653 (E.D. Pa. 2001) in which the court said On a motion to dismiss the
district court must read a pro se plaintiffs allegations liberally and apply a less stringent
standard to the pleadings of a pro se plaintiff than to a Complain drafted by counsel affd
mem. 52 F. Appx 188 (3d Cir. 2002). Notwithstanding, the requirement of liberal
construction, a pro se plaintiff must still satisfy the Rule 8 standard. See Zilich v. Lucht, 981
F.2d 694, 694-96 (3d Cir. 1992). Federal courts have stated that a pro se complaint however
inartfully pleaded is sufficient to proceed beyond a motion to dismiss (citation omitted).
Plaintiff submits the Court review Defendants motion also in light of Fed. R. Civ. P. 8(e)
regarding Construing Pleadings. The rule states that Pleadings must be construed so as to
do justice.
The Federal Rules reject the approach that pleading is a game of skill in which one
misstep by counsel may be decisive to the outcome and accept the principle that the purpose
of pleading is to facilitate a proper decision on the merits. Conley v. Gibson, 355 U.S. 41, 48
(1957).
Facial Challenge: A motion to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff had
properly stated a claim. [A] complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46(1957). The
court must treat the complaints factual allegations including mixed questions of law and
fact as true and draw all reasonable inferences in the plaintiffs favor. Macharia v. United
States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft,
333 F.3d 156, 165 (D.C. Cir. 2003). In deciding a 12(b)(6) motion, the Court may typically
consider only the facts alleged in the complaint, documents attached as exhibits or
incorporated by reference in the complaint, and matters about which the Court may take
judicial notice. Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002). (citation
omitted).
Factual attack: Plaintiff contends that a review of the filings and potentially oral
argument in this matter will establish that jurisdiction does, in fact, exist. The Court may
consider affidavits, depositions, and testimony to resolve factual issues and is free to weigh
the evidence and satisfy itself as to the existence of its power to hear the case. Iwanowa v.
Ford Motor Co., 67 F.Supp.2d 438.
Defendants would have this Court believe that Plaintiff should have proven the entire
case in the amended complaint, when in fact, that is what the discovery process and trial are
for. In Bell Atl. Corp. v. Twombly et.al., 550 U.S. 544, 555 (2007), the Court made clear that
it would not require a heightened fact pleading of specifics but only enough facts to state
a claim to relief that is plausible on its face. Id. at 570. The standard under rule 12(b)(1), in
civil actions, is a preponderance of the evidence that the Court possesses jurisdiction. See
Shekoyan v. Sibley Intl Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002); Pitney Bowes, Inc. v.
U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998)
Plaintiff also submits that arguments regarding certain aspects of the amended
complaint cited in Defendants brief supporting its Motion to Dismiss and for Summary
Judgment can be viewed not just in the light of legal precedent but also common sense. In
Curfman v. United States of America (Case 1:06-cv-01987-RMC Doc. 8, in D.D.C. 2006) in
an order dated 7/10/07 on page 6 the Court stated, citing Evans, 478 F. Supp. 2d at 72 in
dismissing a claim by the Plaintiff in that matter, this argument defies common sense and
legal precedent. Simply, Plaintiff submits that a portion of Defendants claims related to
the improper disclosure(s) to the media defy common sense. In fact, Defendants IRS, FBI
and DOJ had knowledge prior to February 29, 2012 of the action the FBI and IRS took that
day at two locations, Plaintiffs residence and separately his office. Defendants go to great
length in their Brief (Doc. 14-1) about Defendant DOJs extensive regulations, but do not
offer any alternative explanation for how the media received information about the
Defendants FBI and IRSs visit to Plaintiffs residence and office on February 29, 2012. As
Defendants are well aware, the search warrant, executed by the FBI at Plaintiffs residence
was issued on February 22, 2012, while the subpoenas, which are attached as Exhibit 1 to
this filing, were issued on February 27, 2012. Defendants IRS, FBI and DOJ did not give
Plaintiff advance notice, and do not allege they did, because obviously the element of
surprise and the purported need to protect what the agencies may view as potential evidence
are key elements of those agencies strategy in this case and other cases. Simply put, there is
only one possible source, the Defendants, of the information for the media outlet, The
Philadelphia Inquirer, which also operates/owns philly.com.
Defendants motion downplays the requirement that a party seeking relief must put
forth a short and plain statement of the claim showing that the pleader is entitled to relief.
Fed. R. Civ. P. 8(a)(2). The court must accept all well pleaded allegations as true and view
them in the light most favorable to the Plaintiff (Christopher v. Harbury, 536 U.S. 403, 406
(2002); Jordan v. Fox, Rothschild, OBrien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994)).
Plaintiff contends that the Amended Complaint in this matter is not a formulaic recitation of
the elements of a cause of action (citation omitted). As set forth below in response to the
Defendants argument, Plaintiff contends that the IRS Claims related to 6103, 7431 6304
and 7433 are sufficiently plead to show their is a claim upon which Plaintiff can survive a
motion to dismiss in Federal Court. Plaintiff contends that Defendants FBI and DOJ are
proper for the 6103, 7431 and the Privacy Act claim as more fully described hereafter.
Plaintiff further contends that Defendants Motion for Summary Judgment is without merit
and a distortion of the facts. As stated more fully below, there is no basis for Summary
Judgment in favor of the Defendants.

DISCUSSION

I. Plaintiffs Claim for Damages Based on Questions During the IRS Visit on
February 29, 2012, Timing of the Visit, Defendants Lack of Contact With His
Attorneys at Morgan Lewis, and Other Claims as Plead in the Amended Complaint
Should Be Upheld and Fall Within the Waiver of Sovereign Immunity in 26 U.S.C.
6304 and 7433.

Defendants brief for its motion regarding the 6304 and 7433 claim is completely
silent on an action alleged in the Amended Complaint, that is the interview by IRS special
agents on February 29, 2012. The IRS Special Agents, Michael P. Scheffer, and Edward C.
Manning, interviewed Plaintiff as alleged in the Amended Complaint (Doc. 11 14). Plaintiff
alleges that the IRS Employees (referencing those agents) asked Plaintiff questions about
alleged unpaid tax liabilities from tax years 2005-2010, including amounts that were already
assessed. (Doc. 11 11) As alleged, the agents asked if any payments had been made on
the 2010 tax years income tax liability. (Doc. 11 11) This Court should allow the claim
regarding the interview to stand even if it does decide to dismiss the timing, attorney, and any
other claim under 6304 and 7433 since it was not contested in Defendants motion to
dismiss. In Buaiz v. United States, case number 1:06-cv-01312-RMC (D.D.C. 2007) (cited by
the Defendants Doc. 14-1 re: 7433) in an order dated 01/24/07, the Court stated (on page
12) Indeed, by failing to address them in its papers, Defendant implicit concedes that these
Counts allege actionable misconduct. In that matter, six claims which the Plaintiff alleged
was about actionable conduct under 7433 was allowed to move forward simply because
Defendants did not seek to dismiss that particular claim. In the same decision in Buaiz, the
Court states regarding the same claims the Defendants did not address in their motion,
Taking these allegations in the light most favorable to Mr. Buaiz, the Court concludes they
state a valid claim under 7433. Plaintiff respectfully requests that this Court do the same
regarding the interview allegations under 7433 in the amended complaint (Doc. 11).
Defendants cite three (3) cases in their brief (Doc. 14-1) inferring or stating the
decision in those cases have some specific meaning as it relates to this case and should be
considered by this Court. Plaintiff submits that claim is meritless for the following reasons.
In Buaiz v. United States, case number 1:06-cv-01312-RMC (D.D.C. 2007) (cited by the
Defendants Doc. 14-1, page 5, re: 7433) in an order dated 01/24/07, the Court allowed
under 7433 Count 6, 11, 14, 15, 16, 18 of Mr. Buaizs amended complaint to move forward
(upheld), not be dismissed, as fully described in the paragraph above. Count 18, which was
not dismissed, of Mr. Buaizs amended complaint states defendants Agent, Jane Lethco,
employee # 62-09719 refused to release the aforesaid Notices of Lien. In Buaiz Doc. 3 &
13. In plain language, the Court in that case did not dismiss all 7433 claims against the IRS
agents. Moreover, in Buaiz the Plaintiff made two 6304 claims, none of which were related
to 6304(a), with respect to time of the agents visit, prior consent related to a
representative(in this case Morgan Lewis), and in Buaiz there is no mention of a media leak.
Defendants Brief (Doc. 14-1, page 5, re:7433) states after citing Buaiz an apparent
descriptive statement (dismissing claims related to special agents investigation). Plaintiff
submits that clearly all claims against the agents were not dismissed. Furthermore, its not
clear the agents in Buaiz are special agents, as Michael Scheffer and Edward Manning are
in this case. Plaintiff submits for that reason this case is not on point, and has less relevance
than Defendants asserted in their brief (Doc. 14-1). In Springer v. United States case number
08-cv-4-gkf-fhm (N.D. Okla.) (cited by Defendants Doc. 14-1, page 5, re:7433) the Court
originally dismissed Plaintiffs complaint, and gave the plaintiff an opportunity to file an
amended complaint. In their order dated April 10, 2009, the Court in Springer dismissed a
7433 action about conduct by special agents who seized $19,000 cash from the Plaintiff
while executing a search warrant, and subsequently returned $17,000. The Plaintiff in that
matter, Lindsey Springer, alleged that in addition to claims regarding the search warrant, the
agents illegally stole $2000 in cash, under 6630(c) the cash seizure was an improper levy,
and under 7214(a)(1-9) was violated, thereby suing for damages under 7433 for violations
of both 6630 and 7214. Notably, that Court in Springer, on page 2 of that order said
Springer claims the agents violated his constitutional rights by taking $2,000 during the
search and seizure. This court recently denied a motion for summary judgment and the
matter is proceeding to a jury trial. Plaintiff submits that there is limited value in the ruling
in Springer, as it relates to this matter. Plaintiff notes that in Springer, there are no
allegations of 6304 violations, regarding any of the issues at play under these claims as fully
described before and hereafter in this section. Plaintiff notes that the fact that the ruling
clearly references that a claim in a related case about Plaintiff Springers $2,000 is going to
trial, shows that claims can in fact be sustained against special agents for allegedly violating
the law. Plaintiff submits that Springer is not on point, and the analysis in that case does not
show that claims can not be held for trial regarding conduct by special agents in all
circumstances under 7433. In Springer, the decision merely shows that the Plaintiff in that
case had 6630 and 7214 claims which did not meet the criteria for a claim in federal court,
and the search warrant was signed by a Federal Magistrate Judge, so the Plaintiff in Springer
could not bring an action about it. Plaintiff notes it is unclear if the Plaintiff in Springer
challenged the veracity of the Defendants allegations which formed the basis of the approval
for the search warrant. However, in the present case, Plaintiff makes no allegations about a
levy under 6630 or a search warrant being executed in violation of the law, or that under
7214 or any other provision that any IRS employee took any money from him. Again, based
on those facts, Plaintiff submits the case should have little or no value in the decision in the
present matter. (Doc. 14-1, page 5, re:7433) states after citing Springer an apparent
descriptive statement (dismissing section 7433 claims against special agents conducting
investigation). Plaintiff submits that Defendant is correct the claims in Springer were
dismissed, but their inference about why they were dismissed is simply wrong. Defendants
brief (Doc. 14-1, page 5, re:7433), infers that this is another case where claims against
special agents were dismissed, in an attempt to suggest that claims regarding conduct in
violation of 6304, creating liability under 7433 must be dismissed. That claim is meritless.
Plaintiff submits the claim in Springer was dismissed because of the particular facts in that
matter, and not any precedent or legal analysis showing that any 7433 claim cannot be sent
for trial alleging conduct against special agents. Plaintiff submits again, See 26 U.S.C.
7433, which states, in pertinent part, any officer or employee of the Internal Revenue
Service. As fully described throughout this section, special agents Michael Scheffer and
Edward Manning, who were referenced in the Amended Complaint (Doc. 11) are employees
or officers of the Internal Revenue Service as written in plain language in 7433. In the last
citation in Defendants brief (Doc. 14-1), Hart v. United States, civil action no. 96-5639,
Order Dated 11/21/97, the court dismissed Plaintiffs claims under 7433 because they
related to assessment and not collection. See Hart, which stated The claims set forth in the
plaintiffs pleadings concern the validity of tax assessments, not intentional or reckless
collection violations. In Hart, the Plaintiff alleged the IRS failed to send notices of
deficiency and improperly sent notices of intent to levy, threatened liensharassed plaintiff
with telephone calls and letters, and ignored his requests for investigation. On its face, Hart
does not deal with any claims of alleged violation of 6304, and Plaintiff submits that in Hart
the court determined only that actions surrounding assessment run contrary to Congresss
intent, and thereby fail to meet the standard under 7433. Plaintiff contends that as stated in
the Amended Complaint (Doc. 11 11), IRS special agents [Michael Scheffer and Edward
Manning] asked Plaintiff questions about alleged unpaid tax liabilities from tax years from
tax years 2005-2010, including amounts that were already assessed. Plaintiff submits that in
Hart the only recognition of the limited scope of collection, as described by Defendants
(Doc. 14-1, page 5, re:7433), is that the conduct must be regarding collection, not
assessment. Again, as alleged, multiple questions asked by the IRS agents to Plaintiff on
February 29, 2012 prior to around 6:20 a.m. were about collection. (Doc. 11 11). See 6304
. Defendant IRS has a responsibility to not communicate with a taxpayer at any unusual
time or place or a time or place known or which should be known to be inconvenient to the
taxpayer and in the absence of knowledge of circumstances to the contrary, the Secretary
shall assume the convenient time for communicating with a taxpayer is after 8 a.m. and
before 9 p.m. local time. Defendants statement that the The distinction is
intentional(Doc. 14-1, page 5, re:7433) is a misunderstanding of the ruling in Buaiz,
Springer and Hart. The distinction is between collection and assessment, and it is
identified by the conduct in question, and not, as Defendants state between collection and
crimes. Plaintiff states plainly that the Amended Complaint (Doc. 11) does not allege that
Defendants could not within the law, conduct an investigation. Any contention that this civil
action is merely because Defendants conducted an investigation is baseless and at best an
overly simplistic view of the amended complaint (Doc. 11). Plaintiff submits Congress
intent can be inferred from the plain language of that statutes at issue, which are fully
described throughout this section (See 7433 & 6304). Defendants contention about
Congress intent is inaccurate.
In Defendants brief in Support of its Motion (Doc. 14-1), footnote 4, on Page 4, as
will be discussed more fully in response to Defendants request to dismiss claims for 7431,
Defendants state section 7431 is the exclusive remedy which is incorrect. In Curfman v.
United States of America (Case 1:06-cv-01987-RMC Doc. No. 8, in D.D.C. 2006) the Court
stated Plaintiffs are correct that Congress intended both 7431 and 7433 to coexist.
However, both statutes can coexist and provide mutually exclusives causes of action to
taxpayers for improper disclosures. In other words, Defendants contention in footnote 4 of
their Brief, that the alleged disclosure under 6304(b), can only be remedied under a 7431
claim is incorrect.
Defendants brief in support of its motion (Doc. 14-1) regarding the 6304 and 7433
claim states Plaintiffs complaint only alleges violations in connection with an apparent
criminal investigation. Defendants further claim that Criminal Investigators seek to
determine whether any criminal violation of the internal revenue laws has occurred; on the
other hand, collection activities by the IRS seek to recover assets and procure payments of
unpaid tax liabilities. (Defendants Motion to Dismiss, Doc. 14-1) That is meritless.
Defendants assertion that criminal investigators do not, using the language in the brief (Doc.
14-1), engage in collection activities by the IRS which seek to recover assets and procure
payments of unpaid tax liabilities is simply wrong. First, Plaintiff notes that Defendants
motion to dismiss had no citation or precedent with that statement. Plaintiff contends that the
words Criminal through the word occurred in that statement is a unsupported
conclusion, unwarranted inference or legal conclusion (See Page (3) of Doc. 14-1) and not a
fact or allegation. However, Plaintiff has other evidence to support the contention that IRS
Criminal Investigation (CI) seeks to do more than just determine whether any criminal
violationoccurred as Defendants stated in their motion. Defendant IRS sent Plaintiff an
email on April 10, 2014 at 1:58PM which talks about some recent successes of Criminal
Investigation (a division at the IRS), attached as Exhibit 4. While Plaintiff acknowledges
they discuss investigations, prosecution recommendations, indictments/informations,
and sentencing, what they also discuss is restitution. In three of the four CI example
cases on page 3 of the email (Exhibit 4), the IRS references restitution in the amount of
$790,421, $7 million and $1,082,638. Plaintiff contends unpaid tax liabilities are often
part of that restitution. In plain language, charges, convictions, plea deals, and payments of
back taxes and unpaid taxes, penalties and interest are all successes or results of the work
that criminal investigators do. Furthermore, indirectly the media effect of publicizing, as
Defendant IRS does, these cases, the IRSs communication strategy is to increase voluntary
compliance, thereby receiving payments of taxes the IRS may not have received from
individuals not currently under investigation. See IRS CIs Annual Business Plan, which is
publicly available online, which states under Communication Strategy, To deter financial
crime and enhance voluntary tax compliance, Criminal Investigation will vigorously
capitalize on media opportunities to maximize publicity of our investigations. (Exhibit 5,
Page 3) Plaintiff also notes that the Mission of IRS Criminal Investigation is to handle
investigations in a manner that fosters confidence in the tax system and compliance with the
law. (Exhibit 6) Plaintiff contends that in plain language, while part of the mission is
investigating potential crimes, another part of the mission is doing so in a way that shows the
broader public the laws are being enforced, which in turn will make other individuals and
businesses pay the correct amount of tax. Plaintiff contends that these are not minor
assertions and show that there are other reasons for the work IRS CI does, than Defendants
contentions to seek dismissal of these particular claims. Significantly, federal sentencing
guidelines for tax crimes are weighted very heavily based on the tax loss related to a
convicted person. That is the difference between probation and significant jail time for an
individual who has been convicted or has please guilty is based on the amount of taxes in
controversy. Plaintiff submits that a criminal conviction with a particular tax loss, and/or
additional penalties and interest is enough for a finding in a civil action that the IRS is owed
the money without a full trial. In other words, even criminal convictions of tax crimes, those
investigated by IRS Criminal Investigation result in significant procurement of payments and
seizure of assets related to unpaid tax liabilities, which is directly contrary to the specific
contrast Defendants asserted in their Motion to Dismiss the 7433 and 6304 claims.
Plaintiff also requests the Court take into account Exhibit 7 when considering the issue of
Defendants contention that Criminal Investigators seek to determine whether any criminal
violation of the internal revenue laws has occurred; on the other hand, collection activities
by the IRS seek to recover assets and procure payments of unpaid tax
liabilities. (Defendants Motion to Dismiss, Doc. No. 14, Brief). Exhibit 7 is the Annual
Report of IRS Criminal Investigative published online by Defendant IRS on February 14,
2014. The Annual Report makes numerous references to CIDs work in obtaining among
other things million of dollars in restitution (which, in part, consists of unpaid tax
liabilities), millions thats taxpayers had to forfeit, significant amounts of fines and
seizures. In plain language, Plaintiff submits this confirms by Defendants own statement
that Defendant IRSs Criminal Investigation department or division is engaged in collection
activities. Defendants statement that on the other hand, collection activities by the IRS
seek to recover assets and procure payments of unpaid tax liabilities. (Doc. 14-1) It is
abundantly clear that Exhibit 7, page 33, shows that IRS Criminal Investigation recovered,
through seizures, $465 million in 2013 by their own accord. Plainly, Defendants Brief (Doc.
14-1) admitted or conceded that IRS CI is engaged in collection activities with their own
statement that collection activities by the IRS seek to recover assets. Exhibit 7, page 33
states further that Criminal investigation uses asset forfeiture statutes to disrupt and
dismantle criminal enterprises by seizing and forfeiting their assets. Plaintiff concedes that
he is not claiming any asset was taken from him, however Defendants show by their own
brief and Exhibit 7 that IRS Criminal Investigation engages in collection activity as
defined by their counsel in the Brief supporting the Motion to Dismiss. This further goes to
show that the Defendants acknowledge that IRS CI, is not only engaged in activities that fall
outside the scope of collection activities. As a separate additional point, common sense from
Plaintiffs perspective would suggest that IRS CI investigates taxpayers they believe do have
unpaid tax liabilities, because individuals and businesses who violate the tax laws, most
likely do not pay all of their taxes, thereby how they violated the law. More plainly, the IRS
does not charge taxpayers who made mistakes in the IRSs favor, or that benefited the IRS.
The goal of IRS CI, as more fully described above, is not just to make prosecution
recommendation, but also to collect taxes, penalties, and interest that is rightfully owed to the
IRS.
Defendants motion contends that Plaintiff seeks damages under 26 U.S.C. 7433
for two actions, one of which Defendants say is not giving advance notice to his
attorney (Doc. 14 I. (re: 7433)), as characterized in their motion is mostly not an accurate
description of the claim. 6304 states that the Secretary may not communicate with a
taxpayer without prior consent if the Secretary knows the taxpayer is represented by any
person authorized to practice before the Internal Revenue Service See 26 U.S.C.
6304(a), 6304(2), and (Doc. 11 14). Plaintiff submits the issue is not notice, the issue is
prior consent. In other words, Plaintiff does not allege that the requirement was for
Defendants IRS and United States to notify Morgan Lewis or Plaintiff, but that they receive
prior consent, which they did not (Doc. 11 14). Plaintiff gave no such consent, as alleged in
the amended complaint (Doc. 11 14). Plaintiff did not give prior consent to direct
communication between the Internal Revenue Service and Plaintiff (Doc. 11 14).
Defendants motion notably did not allege that Plaintiff gave prior consent at all, let alone
within the meaning of 6304(2).
Notably, Defendants Motion to Dismiss does not cite any case that shows that
6304(a), as it relates to the timing of the IRS agents visit to Plaintiff residence does not apply
to the IRS agents at issue, Michael Scheffer and Edward Manning. Defendants brief for its
Motion (Doc. 14-1) after the first paragraph, declaring that Plaintiff is incorrect (Doc. 14
I. (re: 7433)), does not mention the time issue again. Plaintiff contends that the IRS special
agents, referenced in the amended complaint, Michael P. Scheffer, and Edward C. Manning,
are IRS employees as defined by 7433, which states any officer or employee of the
Internal Revenue Service. See 26 U.S.C. 7433(a). Plaintiff also notes there is no exception
in 7433 based on job title. More specifically, 7433 limits communication in connection
with the collection of a tax, it is silent to the assigned job title of the IRS employee who
communicated in violation of the related 6304. Defendants Exhibit - Declaration of Dennis
L. Bohn states ( 7) Revenue officers are the IRS employees tasks with taking collection
actions on behalf of the IRS has multiple flaws. First, 6304 and 7433 make no mention of
job title, so Mr. Bohns contention that IRS employees with the revenue officer job title are
the only employees who are tasked with taking collection actions is contrary to the plain
language of the statute and thereby meritless. See 26 U.S.C. 7433 & 26 U.S.C. 6304.
Notably, Defendants Exhibit - Declaration of Dennis L. Bohn states A true and
correct copy of the 2007 account transcript is attached hereto (Doc. 14-6 9) and later states
that a true and correct copy of the 2010 is attached hereto. Plaintiff asks the Court to
consider the following. The 2007 Transcript (Defendants Exhibit), the IRS record shows an
Appointed representative with a date of 01-09-2012. The 2010 Transcript shows the same
explanation of transaction of an Appointed Representative on 10-13-2011. Plaintiff asks
the Court to review the amended complaint (Doc. 11 80). Plaintiff contends that Defendant
IRSs own records, submitted by their counsel, show that Plaintiff had a representative and
that element should no longer be in dispute in this matter. Plaintiff contends that these
documents show that Plaintiffs representative, which was allegedly Morgan Lewis &
Bockius LLP (See Exhibit 8, Morgan Power of Attorney sent to IRS) was, in fact, on file in
the Defendant IRSs records prior to February 29, 2012. Plaintiff contends that the fact that a
representative was on file at the IRS for 2007 and 2010, two of the years Plaintiff alleges
were asked about on February 29, 2012 (Doc. 11 11) is no longer in dispute and should be
considered by this Court when deciding this portion of the motion. Plaintiff contends the
references to Mr. Bohns declaration in this paragraph strengthen the claim that Plaintiff
made in the amended complaint, which alleged that IRS transcripts in Plaintiffs possession
contained the reference to a power of attorney being added to Plaintiffs account prior to
February 29, 2012. (Doc. 11 80) See 6304(2), and Amended Complaint (Doc. No. 11 14,
30)
Plaintiff does not allege in the amended complaint (Doc. 11) that a Revenue Officer
was ever assigned to issue any document, let alone a collection summons (Doc. 14 I. (re:
7433)). Plaintiff does not allege in the amended complaint that he received a collection
summons, so the Defendants contention is irrelevant. (Doc. 14 I. (re: 7433))
Plaintiff contends that any supervisory or management official at the IRS who
approved the IRS special agents visit, if it specified the time of the agents visit, also makes
the IRS liable for violating 6304. Plaintiff also notes any supervisory or management
official that disregarded the Morgan Lewis Power of Attorney and/or Plaintiffs prior consent
before the interview makes the IRS liable under 6304.
Plaintiff contends that the alleged violation of 6304 in the amended complaint fall
squarely within the plain language of sections 6304 and 7433 contrary to the Defendants
brief for its motion (Doc. 14-1) as more fully described above. Defendants motion states
Therefore, the plain language of sections 6304 and 7433 offer no relief of wrongdoing in the
context of a criminal investigation.(Doc. 14 I. (re: 7433)) The words criminal
investigation do not appear in those statutes. See 26 U.S.C. 7433 and 26 U.S.C. 6304.
Plaintiff contends that the IRS transcripts are only a subset of information regarding
an individuals account for a tax year at the IRS, or as part of their data systems. Specifically,
Plaintiffs account has been under a security freeze for more than 2 years. That designation
was placed on my IRS accounts for the 2005-2010 tax years at the request of the CI
investigators. Notably, any action they (CI) take regarding those accounts, including the
action on February 29, 2012 are not on the transcripts. Therefore the representation made by
Defendants is inaccurate and, at best, an incomplete version of the record and should not be
utilized by the Court in rendering a decision. Plaintiff submits that under questioning by
Plaintiff, Mr. Bohn or another IRS Employee would have to concede that indeed certain
actions or processes do not show up on IRS transcripts. Since Mr. Bohns review of the
Plaintiffs accounts and declaration do not say anything about the security freeze on those
years, Plaintiff submits that Defendants are not telling the whole story here. Plaintiff submits
that during the Discovery process, with an opportunity to take the deposition of Mr. Bohn
and other IRS employees, the full set of information regarding Plaintiffs records at the IRS
can be made available. Moreover, the collection action that this civil action was filed under
7433, is improper communication and other claims about communication under 6304.
Plaintiff contends that Defendants are well aware that filing or sustaining a 7433 claim does
not require any showing that a specific collection action is showing on an IRS transcript
and are improperly seeking to use Mr. Bohns declaration to sway the Courts decision
regarding this claim. The plain language of the statute says If, in connection with any
collection of Federal tax with respect to a taxpayer. Plaintiff contends that the
requirement under 7433, based on the plain language, is that the violation be in
connection, with any collection of Federal tax. Furthermore the title of 7433 is the only
place where the words collection actions appear next to each other in written form. The
title of 7433, specifically collection actions Civil damages for certain unauthorized
collection actions, does not create an extra hurdle for civil litigants to bring a claim, because
the plain language of 6304 states that for civil action under 6304, civil action may be
brought under 7433. Plaintiff contends that each allegation regarding Defendants alleged
violations of 6304 were in connection with the collection of a Federal tax, as alleged in
the Amended Complaint. (Doc. 11 11, 32)
Plaintiff concedes that, upon further review, the 7433 and 6304 claims can not
remain against Defendants FBI and DOJ, and with respect to only those claims and
Defendants FBI and DOJ, consents to their removal.
Plaintiff submits this Court should not dismiss any claim related to 6304(b) until an
appropriate time after Discovery has been completed when depositions and other evidence
has been obtained regarding the exact content of any contact with the media regarding
6304. Plaintiff contends that the full extent of a disclosure under 6304(b) can not be
known at this time, and is premature. The negative media stories cited in the amended
complaint contain significant amounts of information. Some of which Plaintiff alleges is
subject to 6304(b) for alleged harassment, oppression, and abuse by the IRS special agents
and other information which is tax return information as defined by 7301. Plaintiff submits
if the 6304(b) portion of the claim needs to be amended to cure a specific deficiency, that
the Defendants would not be prejudiced by that, if that is the Courts decision on this one
portion of the Defendants motion.
Plaintiff submits that Defendants motion to dismiss (Doc. 14) does not state that the
IRS special agents, Michael Scheffer and Edward Manning, which Plaintiff references
regarding the 7433 and 6304 claims are not IRS Employees as defined by 7433. For the
same reasons in the stated in the first paragraph of this section, using authority in Buaiz, the
Court should hold that Defendants have implicitly conceded this issue.
Plaintiff notes that the interview of Plaintiff on February 29, 2012 of a party
represented by attorney, as Plaintiff clearly was, may be an unethical ex parte contact in that
matter.
In addition to all the other good cause above for not dismissing the 7433 and 6304
claims with respect to Defendants IRS and USA Plaintiff respectfully submits the following
Constitutional argument for the Courts consideration with regard to this claim. Plaintiff is an
American Citizen who has never been charged with a crime, other than minor traffic
violations. The U.S. Constitution provides for Equal Protection under the law, under the
Fourteenth Amendment. The Equal Protection Clause provides that no state shall deny to any
person within its jurisdiction the equal protection of the laws (U.S. Constitution). If, in the
context of violations of federal law by employees and thereby agencies of the federal
government, the government response, seeking dismissal, can simply be that it was alleged
wrongdoing related to a criminal investigation, Plaintiff respectfully submits that every
American Citizen, even one who the government has classified is under criminal
investigation is entitled to the same protections the law affords. Plaintiff also submits that
faced with allegations in the future regarding other taxpayers, the government could at any
point say someone is under criminal investigation just to escape liability. In this context, the
entire claim that somehow 26 U.S.C. 7433 and 6304 do not apply is meritless. If somehow,
regarding this claim, the law is interpreted in the way the Defendants suggest, separate from
all other arguments above, they would have essentially eradicated the meaning behind the
Equal Protection Clause of the U.S. Constitution. Respectfully, the U.S. Constitution should
be given far greater weight than the three cases cited by Defendants seeking to dismiss this
claim.
Plaintiff submits that for part or all of the above reasons, and/or other good cause
Defendants Motion to Dismiss the 7433 and 6304 claims with respect to Defendants IRS
and USA should be DENIED.

II. Privacy Act Claim for Relief.

Plaintiff makes factual allegations under the Privacy Act in his Amended Complaint
(Doc. 11). At best, Defendants brief in support of its motion (Doc. 14-1) makes clear certain
deficiencies, and thereby the need for Plaintiff to more clearly state the factual allegations
that do not include tax return information or section 6304(b). Plaintiff alleges that improper
disclosure of records or information in those records was released to media outlets in this
matter. Plaintiff further contends that the disclosure was unauthorized, and therefore, without
authorization from Plaintiff. For the following reasons, explained in detail hereafter, Plaintiff
should be granted leave to file an amended compliant with respect to the Privacy Act claims.
Under Section 552a(g)(1)(D), a claim is allowed, based on the following, as noted by
Defendants, in their brief (Doc. 14-1, section II.): (1) The disclosed information which was a
record contained within an agencys system of records includes the fact that a search
warrant was executed at Plaintiffs residence and office on February 29, 2012. Again,
without challenging the specific actions allowed by the search warrant, as signed by a
Federal Magistrate Judge, the disclosure to the media was not authorized by the Judge
regarding that warrant; (2) the agencys disclosure violated a provision of the Privacy Act,
again Plaintiff alleges that the disclosure, in fact, did violate a provision of the Privacy Act;
(3) Plaintiff contends the disclosure was intentional and willful; (4) the violation caused an
adverse effect. Plaintiff contends that the disclosure of certain investigatory information,
including the existence and details of timing, locations, and other information about the
execution of a search warrant had an adverse effect, and while it will definitely take some
specificity and ability to parse closely related information, Plaintiff submits he can separate
allegations of the media leaks regarding tax return information, and disclosure under section
6304(b) regarding communication in connection with the collection of a tax, and the
allegations of violations of the Privacy Act; (5) the plaintiff suffered actual damages.
Plaintiffs actual and punitive damages as fully stated in the Amended Complaint (Doc. 11).
As alleged in the Amended Complaint, and can be fully separated if granted leave to amend
the complaint as it relates to the Privacy Act, Plaintiff will fully, and more pointedly, do so.
Plainly, Plaintiffs office address was not, as is not alleged to be, tax return information.
That disclosure of address information was improper and without authorization, and the
disclosure to The Philadelphia Inquirer resulted in their assignment of staff photographer
David Swanson, who captured federal agents walking into and out of Plaintiffs then-office
at Two Logan Square, 100 N. 18th St., Philadelphia PA 19103.
Plaintiff plainly rejects the contention that he wants to conduct a fishing expedition in
this civil action, and finds Defendants comments in this regard baseless and meritless.
Moreover, after seizing 7 years of information from Plaintiff on February 29, 2012 including
every piece of business correspondence, every letter, every bank statement, every email, that
contention is, at the least, ironic. Plaintiff contends that there was, in fact, information
released to the media that does not fall under sections 6304(b) or 6103.
Plaintiff will, if given the opportunity by this Court to amend the complaint, propose a
rule or safeguard that should have been in place to prevent the alleged violation under section
(e)(10) of the Privacy Act.
Plaintiff submits that additional specificity would have been better in regards to the
factual allegations that confidential information was wrongfully disclosed in the Amended
Complaint as it relates only to the Privacy Act. For example, Plaintiff submits that the
Amended Complaint references a significant amount of media stories, and the Exhibits (Doc.
11-2 and 11-3) contain published media stories about the Plaintiff and the governments
action which contain information that would be covered under the Privacy Act and which,
are not in fact, tax return information.
In the Amended Complaint (Doc. 11 91) Plaintiff makes the following factual
allegations: If it were not for Defendants unlawful disclosure which resulted is [sic] [in] a
large quantity of high ranking media websites that chose to put the words fbi in their
respective stories and/or headlines, Plaintiff alleges that the autocomplete feature would
never show, or have shown, chaka fattah jr fbi as the second most popular search term
regarding Plaintiffs name. Plaintiff plainly submits that the original story on philly.com on
February 29, 2012 was FBI seizes records of Rep. Fattahs son as alleged in the Amended
Complaint (Doc. 11 44). Also, Plaintiff alleged that he did not give any information
regarding the governments action to the media on February 29, 2012 prior to the date or on
that date, and noted that he was unaware and had no prior knowledge of the agencies
actions on that day [referencing Feb. 29, 2012] (Doc. 11 45).
Plainly, the words FBI, the existence of a search warrant, specific items taken
under the search warrant such as computer and other information that appeared, and is still
published to this day, about Plaintiff and February 29, 2012 are not tax return information
or an improper disclosure under section 6304(b) as Defendants contend in their brief (Doc.
14-1).
Grant of leave to amend is within the discretion of the district court. See Zenith Radio
Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)); see also Gay v. Petsock, 917 F.2d 768, 772 (3d Cir. 1990) (articulating that
abuse of discretion is the standard of review for decision on leave to amend pleadings).
Federal Rule of Civil Procedure 15(a) provides that the Court should freely give leave for a
party to fie an amended pleading when justice so requires. The burden is generally on the
non-moving party to demonstrate why leave to amend should not be granted. Rizzo v. PPL
Service Corp., No. 03-5779, 2005 WL 1397217, at *3 (E.D. Pa. June 10, 2005) (citing
Foman, 371 U.S. at 182).
Plaintiff submits that there has not been an undue delay, bad faith, or dilatory motives
on the part of Plaintiff. Plaintiff respectfully submits that the amendment would not be futile
as Plaintiff has sought to show, in this filing, with the above additional information,
including examples of the information that is not defined as tax return information that was
clearly released to the media, without Plaintiffs authorization. Plaintiff submits the
Defendants would not be prejudiced by an amendment, and that would adequately address all
of their claims for dismissal under the Privacy Act.
Plaintiff cites Jackson v. Lehigh Valley Physicians Group, Civil No. 08-3043 (E.D.
Pa., September 29, 2010) where this Court held that the Plaintiff in that matter could amend
their complaint 11 days before trial. Plaintiff respectfully submits that an amended complaint
at this point will not disadvantage the Defendants from raises any defenses as it relates to the
Privacy Act claims. Plaintiff further submits that the Defendants submitted their Motion
(Doc. 14) prior to even being served in this matter.
Finally, Plaintiffs Privacy Act claim is a rightful attempt to hold all of the Defendants
responsible for the disclosure(s), without his authorization, of a subset of information
released to the media on February 29, 2012, or before that day as early as February 22, 2012
(the date of the issuance of the search warrant; subpoenas issued on February 27, 2012),
which was not tax return information or an alleged section 6304(b) violation. Plaintiff
submits that any deficiencies as it relates to this claim only, he should be granted leave to
amend the complaint.

III. Plaintiffs Claim for Damages Under 26 U.S.C. 7431 Relating to Alleged
Unauthorized Disclosures of Tax Return Information Should Not Be Dismissed,
Because They are Not Time Barred and Do Not Fail to Plead an Allowable Claim for
Relief.

Plaintiff complaint does contain claims for damages resulting from an alleged
unauthorized disclosure of his tax return information. These claims should be held for trial as
the complaint was timely filed, and is not, therefore, time-barred. In addition, Plaintiff did, in
fact, identify the information that was disclosed, Plaintiff alleged facts to show that any
disclosure was unauthorized. Lastly, any reference by Plaintiff in the Amended Complaint
(Doc. 11), of which Defendants brief characterize (Doc. 14-1, section III.) as contradictions
and concessions refute any implication that he has a plausible claim is baseless and
meritless, and permissible under Fed. R. Civ. P. 8(d)(2,3) regarding alternative statements of
a claim and inconsistent claims, respectively.

A. Plaintiffs Section 7431 Claim Is Not Barred Because The Filing Was Not Past The
Applicable Statute Of Limitations.

Plaintiff agrees with the Defendants that the claims under 7431 must be raised within
two years after the discovery of the alleged disclosure, but does not agree that that bars any
claim made here, because they were made within the two years considering all of the facts
herein.
Plaintiff filed an application for in forma pauperis (IFP) status on February 21, 2014.
On March 19, 2014, this Court granted that petition. The IFP application tolls the statute of
limitations. [The Plaintiffs] complaint, for statute of limitations purposes, was filed on
the date it was received by the clerks office. Wells v. Apfel, 103 F.Supp.2d at 899 (W.D. Va.
2000); see also Bishop v. Apfel, 91 F. Supp. 2d 893, 894 (W.D. Va. 2000) ([T]he best rule is
that where the plaintiff submits an IFP application, the relevant period of limitations is
suspended until the court rules on the application.. Mcdowell v. State Police, 88 F.3d 188,
191 (3d Cir. 1996)(Although a complaint is not formally filed until the filing fee is paid, we
deem a complaint as constructively filed as of the date that the clerk received the complaint
-as long as the plaintiff ultimately pays the filing fee or the district court grants the
plaintiffs request to proceed in forma pauperis.
Plaintiff submits that the alleged disclosures under 6103, creating liability under
7431, could not possibly have been discovered until February 29, 2012 or after that date
by Plaintiff. As the nature of the alleged media leaks had to do with that date, and stories that
were published that date and afterwards, Plaintiff submits that February 29, 2012 is the first
possible operative date under the two years after the discovery of the alleged disclosure
condition of the statute of limitations. On February 21, 2012, when Plaintiff filed the initial
complaint and IFP application with the clerk of Court, Plaintiff had, at least, eight (8) days
remaining on any statute of limitations. The IFP application was granted by this Court on
March 19, 2014, and the Amended Complaint was filed six (6) days later on March 25, 2014.
Plaintiffs plain language analysis is that for statute of limitations purposes in this matter,
March 19, 2014 (approval of IFP) is the same date as February 21, 2014. Plaintiff contends
that he could not amend the complaint until the IFP application was approved, and did so six
(6) days after it was approved, which considering that the statute of limitations was tolled,
was still two full days before the first possible statute of limitations date of February 29,
2014. Plaintiffs amended complaint (Doc. 11) was allowed under Fed. R. Civ. P. 15(a)(1),
once as a matter of course within 21 days. Plaintiff contends that he was, in fact, under
Rule 15(a)(1) able to add claims and additional defendants once under the rules of civil
procedure. However, Plaintiff does address the other contentions by Defendants below
should that analysis fail.
Plaintiff submits that the original claim (Doc. 5) did not include a claim under the
Privacy Act, so Defendants assertion to the contrary is wrong (Doc. 14-1, III.A.).
Plaintiff submits that the amended complaint does, in fact, relate back under Fed. R.
Civ. P. 15(c) for purposes of the section 7431 claim. Plaintiff submits that there is a common
core of operative facts in the initial and amended complaints. Anderson v. Bondex Intl.,
Inc., - - - Fed. Appx. - - -, 2014 WL 44015, at *2 (3d Cir. Jan. 7, 2014). Plaintiffs initial
complaint gave the defendant[s] fair notice of what the plaintiffs amended claim is.
(citations omitted) (See Doc. 14-1, III.A.). The Third Circuit has recognized two ways in
which constructive notice can meet the requirements of 15(c)(3): the shared attorney method
and the identity of interest method. See Singletary v. Pennsylvania Department of
Corrections at 195-200, as cited in Leary v. Nwosu (E.D. Pa 2005, decision dated Oct. 02,
2007).
The common core of operative facts uniting the original and amended claims in this
matter arise from the same conduct, transaction or occurrence set forth or attempted to be set
forth in the original pleading. Specifically, a media leak by the Defendants, which Plaintiff
did not have the ability, information or any reason to inflict on himself occurred which cost
him over $900,000 in specific, direct, actual lost income, and damage to his reputation,
among other things as set forth in both the Original (Doc. 5) the Amended Complaint (Doc.
11). This claim was more clarified in the amended complaint and sought two additional
defendants who should have been named in the initial complaint, but were not due to mistake
or other error. Plaintiff did not make any tactical, or legal strategy decision, to file the
original complaint against the IRS and USA, and then later add FBI and DOJ as Defendants.
Plainly, the initial complaint had the media leak of specific information as the cause for
damages as it relates to all claims, even under emotional distress, or inconvenience, and was
more clearly stated in the amended complaint. Plaintiff respectfully submits that the amended
complaint restates the original claim with greater particularity or amplifies the factual
circumstances surrounding the pertinent conduct as would fall under Rule 15(c). Bensel v.
Allied Pilots Assn., 387 F.3d 298, 310 (3d Cir. 2004). In essence, application of Rule 15(c)
involves a search for a common core of operative facts in the two pleadings. In
Homecomings Financial Network, Inc. v. Conestoga Title Insurance Co., et. al. Civil No.05-
cv-391, order dated April 6, 2006, this Court granted a Plaintiff leave to amend a complaint
where the Court said the general claim of misconduct regarding the actions of Defendants
Barnes acting as an agent of other Defendants regarding the Mitchell loan. The allegations
that Plaintiff seeks to include in its Amended Complaint amplify the circumstances
surrounding the pertinent transaction or occurrence in this case as represented by Plaintiff to
be Defendants misconduct in regards to the Mitchell loan. Plaintiff submits that the
relevance in this case is that the amended complaint does add more detail, thereby,
amplifying the circumstances about the substance and scope of the media leak. Plaintiff
believes the Court should conclude that the common core of operative facts between the
original and amended complaint is clear, thereby denying Defendants motion to dismiss these
claims.
Plaintiff did add more details to section 7433 claims in the amended complaint, for
example, by adding more detail and specificity to the factual allegations regarding the section
7433 claim about Morgan Lewis and Bockius LLP(Doc. 11 80-84). Plaintiff also added
more detail to the interview claim under section 7433 ((Doc. 11 85). Furthermore, a valid
administrative claim under section 7433 has to have substantiating documentation attached
to it. In the amended complaint (Doc. 11), Plaintiff added factual allegations about that
element. Defendants stated that there were no new allegations against the IRS under section
7433 in footnote 6, page 11 of Document 14-1. That is inaccurate as stated above.
The initial complaint did, in fact, make claims related to damage to Plaintiffs
reputation, did reference the statement by IRS spokeswoman Shauna Frye, and did state the
media attention from the initial article caused additional negative media articles, which
resulted in a loss of reputation. (Doc. 5 23) The original complaint (Doc. 5) continued on
to allege that the only way the media company would have sent a photographer to these
locations early in the morning on the above date is with advance notice, which only could
have been given by the Defendants. (Doc. 5 23) The majority of the requested monetary
damages in the original claim, $500,000 were relief for loss of reputation. Moreover, the
remaining damages $428,001 sought in the original complaint, were due to emotional
distress and inconvenience caused by the media stories, and, thereby, the media leak. That is,
to say, that Defendants contention that the section 6304 claims for the core of the initial
complaint is baseless, and simply wrong. The initial complaint did not go into explicit detail
about the contents of the media leak, but Plaintiff submits that the original complaint makes
inferences that make it abundantly clear he alleges that his mailing address, name, and that
he was, regarding his tax returns, under tax investigation. In the original claim, it does not
make sense that the media was given advance notice that did not include details like name
and address of the individual (Plaintiff) involved. Moreover, the specifics of the parties
involved and address are necessary pieces of information for the media to allocate financial
resources, by sending photographers, and from a practical point of view it would be
impossible to send photographers to an address the media did not have prior to such a leak or
media tip. A taxpayers identity (name), home address, and whether is or will be examined or
subject to other investigation or processing are tax return information under 6103 (See
26 U.S.C. 6103). The plain language statement that Plaintiff did not speak with any
reporters on February 29, 2012 and had no prior knowledge of the action the IRS and other
federal agency was taking that morning (Doc. 5 23), along with the statement about
advance notice in the same paragraph shows that Plaintiff alleges that information was
given to media outlets which he did not have, and, therefore, could not and did not give to
the media outlet. Plainly, Plaintiff did allege, in plain language, a breach of confidentiality
with regard to the media leak in the initial complaint. It also forms the basis for all of the
damages. Plaintiff did, contrary to Defendants contention, make clear that the advance
notice was the source of his harm (Doc. 14-1, III.A.). Plaintiff rejects the contention that the
references to media were limited and/or tangential to the common core of Plaintiffs
original complaint.
There is no requirement under 7431 to file an administrative claim prior to bringing
action in district court. In Koerner v. United States Civil No. 06-01633 (ESH) (dated June 13,
2007) (D.D.C. 2006) the Court stated Their first argument misconstrues the Courts
judgment. The Court did not hold that 7431 has an exhaustion requirement. So,
Defendants are correct that the administrative claim (Doc. 11-4) does not state any
allegations under 6103 and 7431.
The shared attorney method is based on the notion that, when an originally named
party and the party who is sought to be added are represented by the same attorney, the
attorney is likely to have communicated to the latter party that he may very well be joined in
this action.See Singletary v. Pennsylvania Department of Corrections at 196, as cited in
Leary v. Nwosu (E.D. Pa 2005, decision dated Oct. 02, 2007) When determining whether a
party to be added to an amended complaint received notice under the shared attorney
method, the inquiry is whether notice of the institution of this action can be imputed to [the
party to be added] within the relevant 120 day period.See Singletary v. Pennsylvania
Department of Corrections See also Leary v. Nwosu (E.D. Pa 2005, decision dated Oct. 02,
2007). As discussed below, Plaintiff submits the shared attorney method of notice applies to
both the Federal Bureau of Investigation (FBI) and U.S. Department of Justice (DOJ).
The DOJ and FBI are both represented in this matter by an attorney who is employed
by the U.S. Department of Justice as a Trial Attorney, and represents Defendants IRS and
USA in the same matter before this Court. The U.S. Department of Justice always provides
an attorney to represent the IRS, or federal agencies such as the FBI and DOJ in civil actions
so the U.S. Department of Justice represented the U.S. Department of Justice and FBI at the
time the Plaintiffs original complaint was filed. In Leary v. Nwosu (E.D. Pa 2005, decision
dated Oct. 02, 2007), this Court allowed the City of Philadelphia to be added as a Defendant
under the shared attorney method, after a Pro Se Plaintiff filed a motion to amend after
having been appointed counsel. The same analysis in Leary, applied to the present matter,
would show that Defendants FBI and DOJ had notice in this matter. Also, Defendant IRS had
adequate notice of the 7431 because their attorney should have informed them of the
possibility that claim could be added under the common core of operative facts. Defendant
IRS had adequate notice of the 7431 claim based on the original complaint, which did, in
fact, make factual allegations of a media leak regarding Plaintiff and the same transaction or
occurrence as discussed above.
For the above reasons, or other good cause, Plaintiff requests that this Court deny the
motion to dismiss the 7431 claim based on 6103, as it relates to all defendants.

B. Plaintiff Does Not Fail To State a Claim that Falls Within the Narrow Waiver Of
Sovereign Immunity, Because Plaintiff Does Allege that His Tax Return Information
Was Disclosed to the Media Without Authorization.

Plaintiff asserts that the Amended Complaint (Doc. 11) contains several factual
allegations of the unauthorized disclosure of tax return information. On its face, the amended
complaint does, in fact, allege that Plaintiffs tax return information was disclosed to the
media without authorization (Doc. 11 39, 41, 88, 89, 94, 96). Plaintiff alleges in the
amended complaint, 41, Plaintiff never confirmed any reporter at any media outlet, as a
representative or designed of Plaintiff, of which the Internal Revenue Service could release
my name or address to. Plaintiff also alleges in the amended complaint, 94, that
Defendants violated 6103 in their disclosure to the media of the existence of an
investigation of Plaintiffs tax liabilities with Defendants Internal Revenue Service. 6103
states that tax return information includes whether a return was filed, is or will be examined
or subject to other investigation or processing, including collection activity. Plaintiff also
notes that Defendants brief in support of its motion (Doc. 14-1) did not contain any
declaration from any employee or officer of Defendants which stated that Plaintiff gave
consent or authorization for the release of tax return information alleged in the amended
complaint (Doc. 11). Defendants also submitted no other evidence showing Plaintiff gave
Defendants authorization for the release of tax return information. That is, simply, because
no such authorization was given and, therefore, the Defendants cannot produce any such
evidence.
Plaintiff submits that Defendants contention in their brief to support its motion (Doc.
14-1, footnote 7, page 12) that Plaintiff alleges disclosure of another entitys tax return is
simply incorrect. Plaintiff submits that the contract amount referenced in the original
complaint is Plaintiffs tax return information as it makes up a portion of the Plaintiffs
revenue, which is part of his tax return on Schedule C. Plaintiff also contends that 259
Strategies LLC is a disregarded entity, for federal tax reporting purposes, and all revenue,
expenses, and income are shown on Plaintiffs own tax return (See Exhibits 9, 10, 16, 17).
Plaintiff submits that only Defendants IRS and FBI had employees or officers at
Plaintiffs residence and office on February 29, 2012. Plaintiff further contends that
Defendant IRS was the first agency to arrive at his residence, and Defendant IRS proceeded
to leave upon the arrival of the FBI on February 29, 2012. Plaintiff makes numerous
allegations that tax return information was disclosed in the Amended Complaint (Doc. 11).
Plaintiff submits there is no logical fallacy, as Defendants contend, (Doc. 14-1,
section III., B.) with respect to the allegations that Defendants leaked information to the
media prior to, or on, February 29, 2012. A media outlet, the Philadelphia Inquirer (which
also operates philly.com) paid two photographers on February 29, 2012 to go to two
locations, and wait for something they clearly expected to happen. The only thing that
happened, is both of the photographers captured plain clothes federal agents entering and
exiting Plaintiffs residence and office, after getting out of unmarked federal law
enforcement vehicles, which look like regular cars to members of the public. Plaintiff alleges
that Defendants IRS, FBI & DOJ leaked information to the media in the amended complaint,
which is why the media company sent paid staff photographers to those locations on a
Wednesday morning in February, in this case February 29, 2012. Plaintiff submits the Court
should not dismiss the claim against Defendant IRS, or Defendants FBI and DOJ. As shown
below, with respect to the Washington Times story (Doc. 11-3), a plain language analysis
would show that Plaintiff with regard to the philly.com and The Philadelphia Inquirer stories
(Doc. 11-2, and others as referenced in the amended complaint), Plaintiff was directly
associated with those news stories, and he is a particular taxpayer both under 6103.
Under 6103, any employee or officer of Defendant FBI and Defendant DOJ who disclosed
Plaintiffs taxpayer return information, can be the basis of a civil action under 6103 and,
thereby, 7431.
Plaintiff also specifically alleges that IRS spokeswoman Shauna Frye disclosed tax
return information to the Washington Times in the amended complaint. The Defendants
contention that it is a generic statement is without merit. See 26 U.S.C. 6103(b)(2)
(information that can be associated with, to otherwise identify, directly or indirectly, a
particular taxpayer). Plaintiff contends that he is the particular taxpayer, as defined by
6103 the Washington Times article was associated with or otherwise identified. Plaintiff
submits there is no doubt that Plaintiff was identified in the Washington Times story (Doc.
11-3). As cited by the Defendants, the plain language of the statute shows there was, in fact, a
violation. Plaintiff submits that Shauna Fryes statement was associated with Plaintiff, See
Doc.11-3. Specifically, the article by the Washington Times has a headline which identifies
Plaintiff, and the story (Doc. 11-3) does not suggest in any way that any other resident of the
Residences at the Ritz-Carlton is or may be under investigation. Defendants are correct that
the Residences at the Ritz-Carlton is a high-rise apartment building with 270 residences, but
that is irrelevant, because Ms. Fryes statement appears in a story which can be associated
with, or otherwise identify Plaintiff under 6103. Furthermore, Plaintiff submits that the
identification of him, pursuant to the last sentence, was direct in this instance, because of
the story, and headline. At the very least, the statement identified Plaintiff, and thereby, tax
return information indirectly, under 6103. Plaintiffs mailing address, name, and the fact
that Plaintiffs tax returns were subject to other investigation or processing are all tax return
information, as defined by 6103 and as alleged in the amended complaint. Plaintiff used the
word tantamount in the amended complaint and contends it does not have the meaning
Defendants suggest, and as more fully described above, IRS spokeswoman Shauna Frye did,
in fact, release Plaintiffs tax return information. Plaintiffs reference to the spirit of the law,
was an attempt to suggest Congresss intent for the passing of the law, however Defendants
analysis is contrary to the law and rules of civil procedure. Making an alternative argument,
as Defendants stated on page 14, section III. B., does not weaken his [Plaintiffs] allegations
even further. See Fed. R. Civ. P. 8(d), If a party makes alternative statements, the pleading
is sufficient if any one of them is sufficient. Plaintiff herein references all of the language in
Rule 8, as reference above, of sections (2) and (3) regarding Alternative Statements of a
Claim and Inconsistent Claims. Plaintiff submits that the spirit of the law statement
in the amended complaint should not be used by this Court as it relates to the sufficiently of
the other arguments regarding Shauna Frye and 6103, as shown above. Defendants
contention (Doc. 14-1, III.B.) that some other information may have been disclosed such
as may be related to a non-tax investigation is exactly the type of disclosure of information
that is alleged to have violated the Privacy Act in the amended complaint, and, as proposed,
any amendment to follow the ruling on this motion(Doc. 14).
Plaintiff submits, as stated above, that the 6103 claims are sufficiently plead.
However, in the alternative, any identified deficiency in the 6103 claims brought by
Plaintiff can be easily corrected by the filing of an amended complaint. Grant of leave to
amend is within the discretion of the district court. See Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321, 330 (1971) (citing Foman v. Davis, 371 U.S. 178, 182 (1962));
see also Gay v. Petsock, 917 F.2d 768, 772 (3d Cir. 1990) (articulating that abuse of
discretion is the standard of review for decision on leave to amend pleadings). Federal Rule
of Civil Procedure 15(a) provides that the Court should freely give leave for a party to fie
an amended pleading when justice so requires. The burden is generally on the non-
moving party to demonstrate why leave to amend should not be granted. Rizzo v. PPL
Service Corp., No. 03-5779, 2005 WL 1397217, at *3 (E.D. Pa. June 10, 2005) (citing
Foman, 371 U.S. at 182). Plaintiff submits that there has not been an undue delay, bad faith,
or dilatory motives on the part of Plaintiff. Plaintiff respectfully submits that the amendment
would not be futile as Plaintiff would simply expand on factual allegations and cure any
deficiency identified by this Court about the disclosure of tax return information under
6103, without Plaintiffs authorization. Plaintiff submits the Defendants would not be
prejudiced by an amendment, and that would adequately address any of their claims for
dismissal under 6103. Plaintiff cites Jackson v. Lehigh Valley Physicians Group, Civil No.
08-3043 (E.D. Pa., September 29, 2010) where this Court held that the Plaintiff in that matter
could amend their complaint 11 days before trial.

IV. This Court Should Deny Defendants Motion for Summary Judgment on Plaintiffs
Claim for Refund of Late-Filing, Late-Payment and Estimated Tax Penalties for 2007
and 2010 Because Plaintiff is Entitled to the Refund for Reasonable Cause and
Defendants Are Not Entitled To Summary Judgment For These Claims.

Plaintiff submits that there is no merit to Defendants claim in seeking Summary
Judgment related to the refund of (3) penalties assessed to Plaintiff for tax year 2007 and (2)
penalties for tax year 2010. As Plaintiff discusses more fully below, Defendants are
misrepresenting the facts in a improper attempt to receive summary judgment on this claim.
Plaintiff contends that he is entitled to the refund of the penalties at issue, the claim is timely,
and there are genuine issues of material fact as discussed below. The claim for refund of tax
penalties should be held for trial. Plaintiff made more than a passing reference to lack of
funds, undue financial hardship and thevariance doctrine referenced by Defendants
(Doc. 14-1, page 16, footnote 9) has no relevance here, because Plaintiff gave the Defendant
IRS multiple opportunities to review the claim on that basis.
Plaintiff submits that the IRS Taxpayer Advocate Service (TAS) took his request
under their Case Acceptance Criteria (Exhibit 15), specifically, Where a taxpayer is
experiencing some financial difficulty, emergency, or hardship and Where a taxpayer
has tried to resolve a problem through normal IRS channels but those channels have broken
down. In addition, under the same criteria, TAS states if the taxpayer is suffering an
economic burden, TAS will take the case. Plaintiff also notes that more than one reason
can be submitted to the IRS for the removal of penalties. For instance, first-time abatement
can be first considered, then reasonable cause for one or more reasons. Taxpayers do not
have to choose only one argument for the removal of their penalties, and even if they did,
that would not help Defendant IRS in this case, since the main reason was economic harm,
undue financial hardship, and thereby reasonable cause. Plaintiff plainly stated, in Exhibit 14,
that I do not have assets or income to pay these penalties and the initial request said
nothing of the Bedard Email or letter by T. Martin, a different CPA.

LEGAL STANDARD

A motion for summary judgement shall be granted if the Court determines that there
is no genuine issue as to any material fact and that the moving party is entitle to judgment as
a matter of law. Def. R. Civ. P. 56(c). The non-movants allegations must be taken as true
and, when these assertions conflict with this of the moan, the former must receive the benefit
of the doubt. Goodman v. Mead Johnson & Co., 534 F. 2d 566, 573 (3d Cir. 1976). In
addition, [i]nferences to be drawn from the underlying facts contained in the evidential
sources . . . must be viewed in the light most favorable to the party opposing the motion.

A. Statement of Undisputed Facts (Response to Defendants, and Plaintiff submission)

Plaintiff submits the following facts are material and undisputed for the purposes of
deciding this issue:
1. On October 28, 2013, Plaintiff completed IRS Form 911, Request for Taxpayer
Advocate Service Assistance and delivered it, by hand, to the Taxpayer Advocate
Service office at 600 Arch St., Room 7246, Phila. Pa 19106.
2. On October 31, 2013, Plaintiff called the Taxpayer Advocate Service, and was informed
by an employee that his case was opened and assigned to IRS Taxpayer Advocate
Service employee Debbie Landrum.
3. On November 5, 2013, Plaintiff had a phone call regarding form 911, discussed his
financial condition, economic harm, and the undue financial hardship he was facing.
Plaintiff and Ms. Landrum also discussed the penalties at issue in this motion, and his
contact regarding the penalties with the IRS prior to that date.
4. Taxpayer Advocate Service employee asked for a simple statement in writing for the
removal of all penalties, and did not ask for Form 843, or any formal claim in order to
support the request for refund and abatement of the penalties.
5. Plaintiffs Form 911, Exhibit 14, I do not have assets or income to pay these penalties
and there is reasonable cause, fta, and other reasons to waive these penalties. and I am
unemployed. Form 911 also clearly identifies four of the five penalties Plaintiff sought
to have removed initially. The sum of those four penalties was $17,697 at the time.
6. FTA (as referenced in the above paragraph), stands for first-time abatement, which is a a
reason, separate and apart from reasonable cause, that the IRS uses to refund penalties,
including late-filing and late-payment penalties.
7. Taxpayer Advocate Service employee Debbie Landrum stated to Plaintiff that she
believed the penalties will be refunded within 30 days and that she will inform
Plaintiff of the decision, as soon as it has been made.
8. The basis for Plaintiffs claim for refund of late filing and late payment penalties was
that he had reasonable cause because of his undue financial hardship, which is
reasonable cause to receive the refund under IRS laws and regulations. (Ex. 14)
9. In Plaintiffs request for refund of 2010 penalties, Plaintiff offers reasonable cause, due
to economic harm (undue financial hardship) as the reason why the IRS should refund
the penalty for not timely paying his 2010 taxes. (Ex. 14)
10. On November 6, 2013, Plaintiff submitted a letter by a C.P.A. that asked the IRS to abate
penalties for 2007, which identified the penalties as late filing and late payment.
(Doc. 14-101, first sentence)
11. The basis for Plaintiffs claim for refund of 2007 penalties was that Plaintiff had an
undue financial hardship, qualifying him for a refund based of reasonable cause. (Ex. 14)
12. On November 20, 2013, Plaintiff wrote to the IRSs Taxpayer Advocate Service and
requested that the estimated tax penalty for 2007 be remove due to IRS error. (Doc.
14-102)
13. In Plaintiffs request for refund of 2007 and 2010 penalties, Plaintiff answered numerous
questions for TAS employee Debbie Landrum about his financial condition.
14. On or about December 5, 2013, Debbie Landrum informed Plaintiff that his request for
refund of the 2007 and 2010 penalties had been DENIED as it relates to each of the (5)
penalties. She further informed Plaintiff that if he had further questions about why they
were denied that I should contact IRS CI employee Michael Scheffer and gave Plaintiff
Agent Scheffers contact information.
15. After the December 5, 2013 or so call from Debbie Landrum, Plaintiff inquired about
appealing the IRSs decision by contacting IRS Appeals. Plaintiff spoke twice with IRS
Appeals employee Chellie Davis, who informed his that the decision was not able to be
appealed because in this case, the IRS did not mail me a letter informing me of my
appeal rights.
16. The Taxpayer Advocate Service took the case because of the economic harm Plaintiff
would experience if the penalties were not abated or refunded. The economic harm, as
referenced, is due to Plaintiffs undue financial hardship, which is reasonable cause to
refund the late-filing and late-payment penalties in tax years 2007 and 2010.
17. The Taxpayer Advocate Service did not on a case for Plaintiff on the basis on reliance
on a tax advisor as referenced by the Defendants, as it relates to the late-filing penalty
for 2010. The Defendants wrongly contend that the email, which was sent on
12/03/2013, more that 25 days after the initial request to refund or abate the 2010
penalties was the primary reason for the request to refund the penalty. Plaintiff submits
that the email was submitted as an alternative argument, which does not impact
Plaintiffs original request for refund of 2010 penalties because of undue financial
hardship.
18. Plaintiff called IRS Appeals at phone number 559.233.1267 on December 16, 2013 at
1:37 p.m. and left a voicemail regarding how to appeal the IRS decision denying the 5
penalties of late-filing, late-payment, and estimated tax in 2007 and 2010. See At&t
phone records, showing that phone number was called for 3 minutes on that date and
time (Exhibit 11). Plaintiff submits common sense would suggest that no taxpayer,
including Plaintiff would contact IRS Appeals, unless he reasonably believed a decision
had been made on an issue which typical can be appealed, this goes to Defendants
argument that this claim is time-barred. As shown by a printout of an IRS website
(Exhibit 12), that is one of the phone numbers for IRS Appeals.
19. Plaintiff received a return call within the week after December 16, 2013 from IRS
Appeals employee Chellie Davis.
20. Plaintiff had numerous calls the initiate the request for the abatement of penalties, made
several calls, left several voicemails, and received the decision in a call on 12/05/2013.
Plaintiff submits these calls are evidenced by Exhibit 13, At&t phone record log for
Debbie Landrums phone number, which Plaintiff submits was 317.685.7821.
21. Plaintiff does not owe any estimated tax for 2007. See IRS Form 2210 (Doc. 14-102,
page 2).
22. As stated in the attached Declaration of Chaka Fattah, Jr., Plaintiff can competently
testify about this civil penalties section, or any issue related to this filing.

Plaintiff contends that, on the basis of Plaintiffs amended complaint (Doc. 11), plus
these undisputed facts, there are genuine issues of material fact relating to Plaintiffs claim
for a refund of 2007 and 2010 penalties. For the reasons stated hereafter, the Court should
hold this claim over for trial. Plaintiff allegations regarding the civil penalties in the amended
complaint (Doc. 14 24, 25, 75) , taken as true under the above legal standard, are sufficient
to be held for trial. Plaintiff alleged that Defendant IRS [is] well aware of Plaintiffs
deteriorated financial condition and have no reasonable basis to deny the refund of the
penalties. Plaintiff also unfortunately misspelled, due to a drafting error, undue financial
hardship in the Amended Complaint, which states undue financial financial harding.
(Doc. 14 24). In the Amended Complaint, Plaintiff alleges the IRS informed the Taxpayer
Advocate Service of the decision, denying the removal of all of the penalties at issue. The
decision to deny the penalties, is the basis for jurisdiction prior to the 6 months regarding
only the civil penalties.
Plaintiff submits his 2012 and 2013 tax returns, Exhibits 16 & 17, as additional
evidence of his financial condition. Plaintiff submits that Defendant IRS received his 2012
return on October 9, 2013, which shows an adjusted gross income of $15,698. Plaintiffs IRS
transcript in 2012 shows his return completed IRS processing on November 18, 2013, during
the period of time in which the IRS was considering his request for abatement and refund
based of lack of funds and undue financial hardship. Therefore, in direct contrast to
Defendants assertion in its statement of undisputed facts, the IRS did have support for
Plaintiffs inability to pay, or more pointedly afford the larges penalties at issue here. Plaintiff
submits the 2013 tax return as additional evidence of his current and 2013 financial
condition. In 2013, Plaintiff had an adjusted gross income of ($819), a loss. Plaintiff
acknowledges that Defendant IRS did not have the 2013 return until March 2014, however, it
is relevant as it relates to Plaintiffs financial condition during the last calendar year, 2013.

B. Plaintiffs Claim in This Case Is Timely, and Therefore, Not Barred, Because
Defendant IRS Rendered a Decision in December 2013.

Plaintiffs refund claim in this civil action falls within the scope of the narrow waiver
of sovereign immunity for tax refund suits. No suit of proceeding under section 7422(a) for
the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the
expiration of 6 months from the date of filing the claim required under such section unless
the Secretary renders a decision thereon within that time 26 U.S.C. 6532(a)(1). Plaintiff
made the initial request for refund of penalties on November 5, 2013, and had phone calls
and other later submitted documents in support of in part alternative reasons for the refund
based on Ms. Landrums request. Taxpayer Advocate Service employee Debbie Landrum
called Plaintiff on or about December 5, 2013, and told Plaintiff the IRS has decided not to
refund any of the penalties for 2007 and 2010. Plaintiff confirmed this with IRS Appeals
employee Chellie Davis via phone twice in December 2013. The refund request was on the
basis of undue financial hardship and, thereby, reasonable cause. Any other alternative
argument, such as reliance on a tax advisor, is additional support for other reasonable cause
and does not make Plaintiffs undue financial hardship any less real and factual. Plaintiff
commenced the present civil action on February 21, 2014, which was more than two months
after the IRS rendered its decision in this matter on December 5, 2013. The 6 months
requirement does not apply when the IRS has already made a decision, as it did in this case.
Plaintiff states that any contention that the IRS did not make a decision as it relates to
the refund of these 5 penalties is simply false, and a blatant attempt to misuse or misstate the
statute of limitation in this case. Plaintiff submits that as of the date of this filing, more than
six months after the original request, Defendants have sent Plaintiff no additional
information about the request on 11/05/2013 to refund the five (5) penalties for 2007 and
2010. In addition, if Defendants are to be believed, which they should not be, they did not
review the removal of the late-filing and late-payment penalties for 2007 and 2010, which
are four of the penalties at issue, for refund due to undue financial hardship, which is
reasonable cause. That would suggest that if the Motion for summary judgment was granted,
that Plaintiff could simply submit the request for refund under that reasoning. Again, Plaintiff
submits that the Motion for Summary Judgment should be denied for all of the reasons in this
section.

C. Plaintiffs Arguments for Refund of Penalties Are Not Contrary to Law and Fact
1. 2010 Penalties

Plaintiff made a request for refund of late-filing and late-payment penalties in 2010
based on undue financial hardship, which is reasonable cause to refund the penalties under
IRS regulations. Plaintiff submitted other, supplementary reasons, including documentation
that gave additional reasons to refund or abate the penalties for 2010. However, the main
issue was undue financial hardship and lack of funds to pay basic living expenses. The letter
by the C.P.A. submitted by Plaintiff (Doc. 14-101) states lack of funds as one of the
reasons the 2010 late filing and late payment penalties should be refunded. As
Defendants acknowledge in their brief (Doc. 14-1), Plaintiff argues that he should be
refunded the late filing and late payment penalties under 26 U.S.C. 6651(1), 6651(a)(2)
(3), which require a showing that his failures were due to reasonable cause and not due to
willful neglect. Plaintiff contends that he can make such a showing regarding the penalties
at issue, and this issue should be held for trial. Defendants own submissions show these
penalties have been paid, See IRS Transcript, Account Balance $0 (Doc. 14-105).
Plaintiff submits that the issue is not whether or not Plaintiff filed the 2010 return late,
or paid late. But it is, however, whether applicable law and IRS rules were followed in
considering the refund request for the penalties. Plaintiff contends that due to his financial
condition, any analysis would show he is entitled to a refund, due to undue financial
hardship, thereby creating reasonable cause" under applicable law and regulations.
Plaintiff also submits that he requested that first-time abatement (fta), which is
separate from the reasons under reasonable cause, be considered by Defendant IRS for the
refund of the 2010 penalties. The IRS policy regarding first time abatement would have led
to, at the least, the refund of the approximate $11,000 late filing penalty. The request for first-
time abatement (FTA) is referenced in writing to the Taxpayer Advocate Service on Exhibit
14. On this basis alone, and the fact that Defendants motion for summary judgment is silent
on this issue, the Court should deny the Defendants motion for summary judgment. Plaintiff
alleged in the Amended Complaint that the requests for abatement of penalties were based
on IRS policies regarding reasonable cause and first-time abatement. Doc. 11 24)
The email from Bedard is mischaracterized by Defendants in the brief (Doc. 14-1).
However, the email is not relevant, because it was submitted more than 25 days after the
initial request, as additional support for an alternative reason to refund the penalties, and not,
as Defendants contend, the primary reason or documentation to refund the 2010 late-filing
penalty. Also, the Bedard email is irrelevant as to the late-payment penalty in 2010, because
as stated above, the issue is not whether Plaintiff should not have been charged that particular
penalty for tax year 2010, but is, in fact, whether or not the IRS should have refunded the
penalty under the policies, regulations, and laws related to reasonable cause. Plaintiff also
notes that Defendants references to the email misunderstand Plaintiffs remarks. Plaintiff
stated, in response to his accountant at Bedard saying they would not submit the returns to
the IRS until Plaintiff paid the remained due of $5,000 in accounting fees to their firm. When
Plaintiff states he has no problem with Bedard holding the returns, he is simply
acknowledging that since they would not release them until the entire bill is paid, he will pay
as soon as possible.

2. 2007 Penalties

Plaintiff made a request for refund of late-filing and late-payment penalties in 2007
based on undue financial hardship, which is reasonable cause to refund the penalties under
IRS regulations. Plaintiff submitted other, supplementary reasons, including documentation
that gave additional reasons to refund or abate the penalties for 2007. However, the main
issue was undue financial hardship and lack of funds. Plaintiff contends that the phone call,
and other communications with Debbie Landrum constitute an informal claim, contrary to
the Defendants assertions. As Defendants acknowledge in their brief (Doc. 14-1), Plaintiff
argues that he should be refunded the late filing and late payment penalties under 26 U.S.C.
6651(1), 6651(a)(2)(3), which require a showing that his failures were due to reasonable
cause and not due to willful neglect. Plaintiff contends that he can make such a showing
regarding the penalties at issue, and this issue should be held for trial.
Plaintiff submits that the issue is not whether or not Plaintiff filed the 2007 return late,
or paid late. But it is, however, whether the above cited applicable law and IRS rules were
followed in considering the refund request for the penalties. Plaintiff contends that due to his
financial condition, as alleged in the amended complaint, any analysis would show he is
entitled to a refund, due to undue financial hardship, thereby creating reasonable cause
under applicable law and regulations. Defendants own submissions show these penalties
have been paid, See IRS Transcript, Account Balance $0 (Doc. 14-104).
Plaintiff also submits that he requested that first-time abatement, which is separate
from the reasons under reasonable cause, be considered by Defendant IRS for the refund of
the 2007 penalties of late-filing and late-payment (not the estimated tax penalty). The IRS
policy regarding first time abatement would have led to, at the least, the refund of the
approximate $1,526 late payment penalty. The request for first-time abatement (FTA) is
referenced in writing to the Taxpayer Advocate Service as fta on Exhibit 14. On this basis
alone, and the fact that Defendants motion for summary judgment is silent on this issue
which is in the amended complaint, paragraph 24, the Court should deny the Defendants
motion for summary judgment. Plaintiff alleged in the Amended Complaint that the requests
for abatement of penalties were based on ITS policies regarding reasonable cause and first-
time abatement. Doc. 11 24)
Under IRS rules and regulations for determining whether or not a taxpayer owes an
estimated tax penalty, Plaintiff simply does not owe the penalty for 2007. Form 2210, is the
form used by the IRS and taxpayers to determine whether or not an individual owes an
estimate tax penalty. Plaintiff submitted Form 2210 in support of a verbal request for removal
of the estimated tax penalty. As Plaintiffs Form 2210, line 9 shows, the required annual
payment or Plaintiff for tax year 2007 was $0. (Doc. 14-102, page 2). It is not for
Plaintiff, or any taxpayer, to explain, before trial, why an IRS system or employee, made an
error that resulted in the taxpayer being charged $277 or any amount that the taxpayer is not
responsible for under the applicable law. Plaintiff submitted the appropriate form for
computing estimated tax, and the Declaration of Bohn submitted by the Defendants does not
state that he or any other employee determined Plaintiff rightfully owes that penalty. Plainly,
Plaintiff does not know why the $277 was charged to him, but that is not the issue, the issue
is that of the (5) refund claims, this is the simplest and most clear cut issue in Plaintiffs
favor. Plaintiff also submits that he explained on the phone to several IRS employees why he
should not have been charged the $277 estimated tax, and visited the Defendant IRSs offices
at 600 Arch St., Phila. PA 19106, to discuss the issue with a IRS service center employee.
This rebuts any belief that Defendant IRS did not know, regarding this penalty, why it should
be removed. Simply, because the IRS Form 2210 (Doc. 14-102, page 2), which was properly
completed, shows $0 in liability for that tax, for tax year 2007.

V. Apology and Agency Discipline Claim For Relief

If the Court finds that the waivers of sovereign immunity under 7431, 7433 and the
Privacy Act do not allow this Court to order Defendants, upon a finding of liability, to order
the issuance of a formal apology and to refer employees for agency discipline , then the
request for relief of an apology and to refer employees for agency discipline should be
dismissed.
However, Plaintiff would note that any finding of liability under 6103 will likely
form the basis of a criminal complaint, which Plaintiff intends to file with the appropriate
federal agency. As shown in Doc. 11-6, criminal penalties for willful disclosure of return
information by an employee or former employee is a felony. The penalty can be a fine of up
to $5,000 or up to five (5) years in jail, or both, plus costs of prosecution.
In the Department of Justice, Criminal Tax Manual, it states willful violations of the
provisions of section 6103 are punishable as a felony and dismissal from federal service.
That is to say, apparently there are other remedies that can be sought if liability under 6103
is determined and therefore dismissal of the referral for agency discipline request is not fatal
to holding the individual(s) accountable, since any monetary judgment in this action would
be paid by the respective agency.

VI. Defendants Federal Bureau of Investigation and Department of Justice Should Not
Be Dismissed As Parties as They Are Appropriately Named.

Plaintiff concedes that the refund claim and section 7433 claim, as stated above
cannot lie against the FBI and DOJ, so thereby consents to their removal for only those
claims.
Plaintiff contends that the FBI and DOJ are appropriately names Defendants related to
the section 7431 claim, and the Privacy Act claim. As shown on Exhibit 1, the two
subpoenas given to Plaintiff on February 29, 2012 at his residence, prior to 7:00 a.m. in the
morning, contains a cover letter on DOJ letterhead, and the signature of Assistant United
States Attorney Paul L. Gray, a DOJ employee. The fact that IRS special agents Michael
Scheffer and Edward Manning were coming to Plaintiffs residence on February 29, 2012
was clearly known to AUSA Paul L. Gray, a DOJ employee, and possibly other DOJ
employees. During the discovery process, it will be more clear to the Court and the parties in
this matter, but it is clear to Plaintiff now. The DOJ is a proper Defendant under 7431, and
6103, because that agency had the taxpayer return and other information that was leaked to
the media, and despite the Defendants contention, Plaintiff did not say that the DOJ or FBI
did not violate 6103. As to the FBI, FBI Agent William McGee, FBI Agent R.J. Haag, and
other FBI agents, who visited Plaintiffs residence and office on February 29, 2012 clearly
had the same taxpayer return and other information prior to that morning, and thereby the
FBI is a proper Defendant. Under 7431 any officer or employee of the United States
knowingly, or by reason of negligence, inspects or discloses any return or return information
with respect to a taxpayer in violation of section 6103, such taxpayer may bring a civil action
for damages.
Plaintiff submits that any employee or officer of the United States plainly includes
any DOJ or FBI employee who were aware of the IRS and FBI action on February 29, 2012
at Plaintiff residence and office in Philadelphia. Notably, the Defendants do not contend that
no employee or officer at DOJ and FBI had knowledge of the action on February 29, 2012.
That is likely because that would plainly be untrue. Plaintiff submits that there are factual
allegations in the Amended Complaint, and Plaintiff alleges that the IRS, FBI, and DOJ are
alleged to have leaked information to the media in the Amended Complaint.
Plaintiff also submits that a civil action can be brought against the DOJ and FBI,
under the language against the United States in 26 U.S.C. 7431. Notably, Plaintiff is not
seeking to dismiss the IRS as a Defendant under 7431 using the same legal argument. The
DOJ and FBI are agencies of the United States, and are rightfully named, in Plaintiffs view.
Plaintiff notes that under Rule 8(d) the Federal Rules of Civil Procedure a party may
state as many separate claims or defenses as it has, regardless of consistency. Defendants
brief (Doc. 14-1, section VI.) misstates Plaintiffs allegation (Doc. 11 56), where Plaintiff
states that the primary source was Defendant IRS. Plainly, that does not mean in any way
that the FBI or DOJ did not and could not have leaked information. Plaintiff states (Doc. 11
56) that employees or officer of the U.S. Department of Justice and/or Federal Bureau of
Investigation gave the same, additional, or supplemental information to the media outlets,
philly.com, The Philadelphia Inquirer, and the Washington Times.
Plaintiff, contrary to Defendants assertion, is seeking to hold the right agency
responsible for the violations of 6103 and thereby 7431. Plaintiff contends it is possible
that Defendant IRS, during a trial, could have a witness who states something to the effect of
that Defendant IRS was not the only agency who had the information, referencing
Defendants FBI and DOJ. If this Court prematurely dismisses them, it may prejudice
Plaintiff in a trial on any surviving 6103 and 7431 claim.

CONCLUSION

Defendants tries several different ways to persuade this Court to dismiss Plaintiffs
7431, 6103, 7433 and 6304 claims, but all of their requests should be denied. Plaintiff
claims falls within the applicable waivers of sovereign immunity and are not time-barred.
The Privacy Act claim can and should be amended to cure the deficiencies. Section 7433
applies to collection activities, including communication in connection with the collection of
tax under section 6304, as Plaintiff alleged in the Amended Complaint. The motion for