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 !

PLAINTIFF’S 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 “Lawmaker’s 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 son’s 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 Plaintiff’s 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 Plaintiff’s 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. Fattah’s 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. McGee’s 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 Court’s 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 Court’s 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 “Plaintiff’s 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 court’s 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 plaintiff’s allegations liberally and apply a less stringent

standard to the pleadings of a pro se plaintiff than to a Complain drafted by counsel” aff’d

mem. 52 F. App’x 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 complaint’s factual allegations — including mixed questions of law and

fact — as true and draw all reasonable inferences in the plaintiff’s 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 Int’l 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, Plaintiff’s residence and separately his office. Defendants go to great

length in their Brief (Doc. 14-1) about Defendant DOJ’s “extensive” regulations, but do not

offer any alternative explanation for how the media received information about the

Defendants FBI and IRS’s visit to Plaintiff’s residence and office on February 29, 2012. As

Defendants are well aware, the search warrant, executed by the FBI at Plaintiff’s 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, O’Brien & 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. Plaintiff’s 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 year’s 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. Buaiz’s amended complaint to move forward

(upheld), not be dismissed, as fully described in the paragraph above. Count 18, which was

not dismissed, of Mr. Buaiz’s amended complaint states “defendant’s 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 Plaintiff’s 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 Springer’s $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 Plaintiff’s claims under §7433 because they

related to assessment and not collection. See Hart, which stated “The claims set forth in the

plaintiff’s 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 liens…harassed 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 Congress’s

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 “Plaintiff’s 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

violation…occurred” 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 IRS’s 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 CI’s 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 CID’s 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 IRS’s 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

Plaintiff’s 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 IRS’s 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. Bohn’s 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

IRS’s 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 Plaintiff’s 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 IRS’s 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. Bohn’s declaration in this paragraph strengthen the claim that Plaintiff

made in the amended complaint, which alleged that IRS transcripts in Plaintiff’s possession

contained the reference to a power of attorney being added to Plaintiff’s 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 Plaintiff’s 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,

Plaintiff’s 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. Bohn’s review of the

Plaintiff’s 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 Plaintiff’s 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. Bohn’s declaration to sway the Court’s 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 Court’s 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

Defendant’s 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 agency’s “system of records” includes the fact that a search

warrant was executed at Plaintiff’s 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 agency’s 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.

Plaintiff’s 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, Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s name. Plaintiff plainly submits that the original story on philly.com on

February 29, 2012 was “FBI seizes records of Rep. Fattah’s 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 Plaintiff’s 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, Plaintiff’s 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. Plaintiff’s 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. Plaintiff’s 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 Plaintiff’s] complaint, for statute of limitations purposes, was filed on …

the date it was received by the clerk’s 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

plaintiff’s 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.

Plaintiff’s 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. Plaintiff’s 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 Int’l.,

Inc., - - - Fed. App’x. - - -, 2014 WL 44015, at *2 (3d Cir. Jan. 7, 2014). Plaintiff’s initial

complaint gave the “defendant[s] fair notice of what the plaintiff’s 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 Ass’n., 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 Plaintiff’s

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 Plaintiff’s

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 Court’s

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 Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s 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 entity’s tax return is

simply incorrect. Plaintiff submits that the contract amount referenced in the original

complaint is Plaintiff’s tax return information as it makes up a portion of the Plaintiff’s

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 Plaintiff’s own tax return (See Exhibits 9, 10, 16, 17).

Plaintiff submits that only Defendants IRS and FBI had employees or officers at

Plaintiff’s 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 Plaintiff’s 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

Plaintiff’s 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 Frye’s 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. Frye’s 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. Plaintiff’s mailing address, name, and the fact

that Plaintiff’s 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 Plaintiff’s tax return information. Plaintiff’s reference to the spirit of the law,

was an attempt to suggest Congress’s 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 [Plaintiff’s] 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 Plaintiff’s 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 Plaintiff’s

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 the”variance 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-movant’s 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. Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s 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 IRS’s Taxpayer Advocate Service and

requested that the “estimated tax penalty” for 2007 be remove due to “IRS error”. (Doc.

14-102)

13. In Plaintiff’s 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 Scheffer’s contact information.

15. After the December 5, 2013 or so call from Debbie Landrum, Plaintiff inquired about

appealing the IRS’s 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 Plaintiff’s 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

Plaintiff’s 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 Landrum’s 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 Plaintiff’s amended complaint (Doc. 11), plus

these undisputed facts, there are genuine issues of material fact relating to Plaintiff’s 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 Plaintiff’s

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. Plaintiff’s 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

Plaintiff’s 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 Plaintiff’s financial condition during the last calendar year, 2013.

!B. Plaintiff’s Claim in This Case Is Timely, and Therefore, Not Barred, Because

Defendant IRS Rendered a Decision in December 2013.

Plaintiff’s 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. Landrum’s 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 Plaintiff’s “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. Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s

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 IRS’s 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 Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s 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