TRAINING USE ONL Y Month dd, yyyy Name Address City, State nnnnn-nnnn SSN: nnn-nn-nnnn Internal Revenue Service Ogden, UT 84201-0040 A TTN: Ms. Green, 29-12033, and Henry Slaughter Re : Re consid eratio n for the Automated Substitute for Ret urn / Notic e of Deficienc y for yyyy NOTICE This is a timely response to your proposed Automated Substitute for Return (ASFR) / Notice of Def iciency (NOD), Letter Number 3219(SC/SG) dated Month dd, yyyy, which was signed with a computer-generated signature. My protest is based on the Internal Revenue Manual (IRM) § 8.2.1.2. I formally protest the NOD in writing under penalties of perjury. In addition, I am trying to accurately ascertain “that he who purports to act for the Gov ernment stays wit hin the bounds of his aut hor ity .” Federal Crop Insurance Corporation v. Merrill , 332 U.S. 380 at 384 (1947). Grounds for Protesting the ASFR / NOD • Fraudulently Filed 3 rd Party Return. The amounts of income summarized on Form 4549 and explained on Form 886-A are based on 3 rd party information returns that were fraudulen tly filed with the Secretary . • Formal Claim for Refund. I filed a formal claim for refund which the Commissioner has acknowledged receiving and which he has failed to process. • Individual Master File. The Individual Master File (IMF) contains significant false, inaccurate, and possibly fraudulent information about me, creating false presumptions that the Commissioner is acting upon. • Denial of Administrative Due Process. The Commissioner has failed to give me any due process to contest the underlying pur por ted fri vol ous return penalty. • Limits of Exa minati on Aut hor ity . The Commiss ioner is attempti ng to exer cise his examination authority outside the seat of government. • No Basis for the ASFR or NOD. The Commissioner has not identified any statute or regulation, if any such statute or regulation exists, under which I have purportedly failed to file. • Uns upported Nak ed Assessment. Because the inf ormation returns are fra udul ent ly fi led, and the Commis sioner hasn’t pro vided any unde rly ing support, he has created an unsupported naked assessment. Page 1 of 17
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5/13/2018 2011-08-03 ASFR NOD Response Letter Template - slidepdf.com
Internal Revenue ServiceOgden, UT 84201-0040ATTN: Ms. Green, 29-12033, and Henry Slaughter
Re: Reconsideration for the Automated Substitute for Return / Notice of Deficiencyfor yyyy
NOTICE
This is a timely response to your proposed Automated Substitute for Return (ASFR) /
Notice of Deficiency (NOD), Letter Number 3219(SC/SG) dated Month dd, yyyy,which was signed with a computer-generated signature. My protest is based on the
Internal Revenue Manual (IRM) § 8.2.1.2. I formally protest the NOD in writing under
penalties of perjury. In addition, I am trying to accurately ascertain “that he who
purports to act for the Government stays within the bounds of his authority.”
Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380 at 384 (1947).
Grounds for Protesting the ASFR / NOD
• Fraudulently Filed 3rd Party Return. The amounts of income summarized
on Form 4549 and explained on Form 886-A are based on 3rd party information
returns that were fraudulently filed with the Secretary.• Formal Claim for Refund. I filed a formal claim for refund which the
Commissioner has acknowledged receiving and which he has failed to process.
• Month dd, yyyy – the Commissioner sent a Letter CP59 claiming that I had not
filed for yyyy.
• Month dd, yyyy – I responded with proof that I had filed for yyyy.
• Month dd, yyyy – the Commissioner issued a proposed SFR claiming I had not
filed for yyyy.
• Month dd, yyyy – I responded with proof that I had filed for yyyy!
• Month dd, yyyy – the Commissioner issued a NOD claiming I had not filed for
yyyy.
My Testimony about Filing for yyyy
I formally declare that I have filed for yyyy, and further, that my claims for refundare based on established case law as outlined in the Pennoni1 and Patridge2 cases.
NO BASIS IN FACT OR LAW AND NO REASONABLE BELIEF
Based on my testimony, the Commissioner is deprived of any basis in fact or law to
reasonably believe that I did not file for yyyy. Thus, his ASFR and the resulting NOD
are defective and completely contrary to the established facts.
INFORMATION MASTER FILE (IMF)
Since the Restructuring and Reform Act of 1998, the IRS’ business records and
processes have been given a presumption of correctness and accuracy. I have a
copy of my IMF for yyyy, Obtained through a Freedom of Information Act request.
My testimony below demonstrates that the Commissioner’s business records about
me contain a large number of false, inaccurate, and possibly fraudulent details in
my IMF, only some of which are listed below:
1 A plaintiff may satisfy the timeliness component of the claim requirement by filing a formalclaim, in accordance with Treasury Regulation (“Treas. Reg.”) § 301.6402-2 (2000), or byfiling an informal claim of which the formal defects are later remedied by amendment of theclaim. See Kales v. United States, 314 U.S. 186, 194 (1942). Pennoni v. US 06-861T (USCFC2009)2 One reason for this is that §7203 requires a “return” but does not define that word orrequire that anyone use Form 1040, or any “official” form at all. All that is required is acomplete and candid report of income. United States v. Patridge, 507 F.3d 1092 (7th Cir.11/14/2007)
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The IMF states that I live in {State}. This flies in the face of the fact that all my
filings and correspondence since yyyy have initiated from my home address in
listed at the top of this letter.
VAL3, 4
A value of “1” in my IMF and a lack of any related transaction codes, it means
that I am not using my true SSN and that Criminal Investigative Division (CID)
should have conducted an investigation.
1.1. False or fraudulent SSN: If I were using a false or fraudulent SSN, I
could be charged with a felony, punishable by a large fine and time in jail . I
am confident the Commissioner knows or has reason to know that this is a
complete fabrication – that this is an entry the IRS creates to allow it to
pursue me under color of law.
1.2. CID Investigation: A false or fraudulent SSN should have initiated an
investigation by CID requiring that the IRS freeze my IMF while the
investigation was on-going, and preventing any changes to the contents of
my IMF until the investigation was complete, the results known, and the
VAL code verified or removed. However, since the VAL code existed at the
moment of creating the IMF for yyyy, all entries made after that point
without an investigation have tainted my IMF, preventing the CID from
performing an accurate investigation and closing my case. Since the IRS
continued to make entries into my IMF after the VAL code was issued and
before CID completed its investigation, my IMF contains tainted
information that cannot be relied upon for accuracy or completeness and
has actually inhibited the CID in the performance of its duties.
Q. Under what authority did the Commissioner allow entries to be made to
my IMF and collection activities begin against me when the IRS’ business
records concerning me should have been frozen pending the outcome of a
CID investigation?
Q. What was the outcome of the CID investigation?
3 Internal Revenue Manual, Exhibit 2.32-7 IMF Entity Data, INVALID SSN FREEZE INDICATOR,1—Invalid SSN Freeze has been released by TC 290 or 300 or Scrambled SSN Indicator of "2". This release is effective during the current calendar year only.4 Law Enforcement Manual, pg. 3(27)(68)0-7 (1-1-90), LEMT III-386, SSN Validity Digit, 1 -
The SSN is not valid for the taxpayer using it.
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My IMF indicates that I am a Small Business earning up to $10 million per year,
as indicated by the Business Operating Division Code. Someone within the IRS
has tampered with my records to make me, an individual, look like a business
and does not reflect my true status as an individual.
BODC-WI6
My IMF indicates that I am a Business paying wages and making investments, as
indicated by the Business Operating Division Code of WI. Someone within the IRS
has tampered with my records to make me, an individual, look like a business
and does not reflect my true status as an individual.
MFR-057
The IMF states that I, an individual, have a mailing and filing requirement to
make a business return with schedules A, B, C, D, E, and F.
FYM8
The Fiscal Year and Month indicates that I operate on a 12-month fiscal year
basis. Nothing could further from the truth. I am an individual and do not live on
a 12-month fiscal year basis.
COND9
My IMFs from yyyy-yyyy have a COND code of R meaning that the IRS OWES ME
MONEY . This is completely contrary to the Commissioner’s claims that I owe the
IRS money.
SCS10
The Scrambled SSN Indicator means that 2 or more people are reporting their
income to my SSN. Because of that, the Commissioner has no possibility of
knowing that the information in its files is accurate or reliable, which brings into
question the amount of money the Commissioner is attempting to collect from
me.
5 IRS Processing Codes and Information, 2010, pg. 7-3, WI - Wage and Investment
6 IRS Processing Codes and Information, 2010, pg. 7-3, SB - Small Business & Self Employed,(TC/150 < $10,000,000.00)7 IRS Processing Codes and Information, 2010, pg. 8-55 & pg. 8-60, Filing Requirement - 05 -1040 Business (Sch A, B, D, E, C, F)8 Internal Revenue Manual, Exhibit 2.3.32-7, IMF Entity Data, FYM - FISCAL YEAR MONTH—from a most current First Name Line on the Master File entity.9 Internal Revenue Manual, Exhibit 2.3.32-7, IMF Entity Data, FILING CONDITION CODE, R -Refund10 Internal Revenue Manual, § Exhibit 2.3.32-8, IRAF merged with IMF Master File 01/2005(MFT-29), SCRAMBLED SSN INDICATOR, 1—Two taxpayers are using the same SSN.
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Q. Who are the other entities that are falsely, fraudulently, or illegally reporting
their income information to my SSN?
NO BASIS IN FACT OR LAW AND NO REASONABLE BELIEF
There are other errors in my IMF but given only these errors, it’s manifestly clear
that the Commissioner proceeded on false, inaccurate, and potentially fraudulentinformation as the basis for believing he had the authority to issue a NOD against
me. Thus, the basis for the ASFR and the resulting NOD is without merit and lacking
a basis in fact and law depriving the Commissioner of all reasonable belief that he
can continue to proceed with his proposed taking.
DENIAL OF ADMINISTRATIVE DUE PROCESS
The Commissioner claimed my original return was frivolous pursuant to 26 U.S.C.
§ 6702. My FOIA request for the penalty paperwork revealed that he failed to make
any determination that I was a “person” pursuant to 26 U.S.C. § 6671(b) who could,
in fact, be charged with a frivolous penalty. Rather, he skipped that legal
requirement and focused on the secondary issues presuming I was the § 6671(b)
“person.” Thus, he gave himself an administrative basis to claim that I was a non-
filer under color of law. He then proceeded with an ASFR and the resulting NOD. The
Commissioner failed to provide me any venue where I could contest the underlying
liability. Not only that, there has been no judicial decision supporting the
Commissioner’s determination.
“Person” Pursuant to 26 U.S.C. § 6671(b)
The predicate element is in the opening words of 26 U.S.C. § 6702(a) when it states
that, “A person shall pay a penalty of $5,000 if (a) such person” (emphasis added).
The term “person” is defined at 26 U.S.C. § 6671(b). The Courts have consistently
determined that the “person” defined at § 6671(b) is anyone with a duty attached to
his position as an employee within an organized enterprise11 or a duty connected
11 "Duty" under § 6671(b) has a much more focused meaning than the generalized duty of all taxpayers to pay taxes and is expressly limited to the duty that attaches to the positionan employee holds within the corporation. US v. Burger , 717 F.Supp. 245 (SD New York,1989)
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with an organized enterprise12 so as to be responsible for the performance of the act
in respect of which the violation occurred.
My Testimony
I deny I had any duty with any organized enterprise so as to be responsible for the
performance of the act in respect of which the violation occurred. Further, I deny Ihad any duty attached to any position as an employee within any organized
enterprise.
NO BASIS IN FACT OR LAW AND NO REASONABLE BELIEF
The Commissioner has the burden of proof pursuant to 26 U.S.C. § 6703. However,
he did not provide any facts that I had a duty connected with any organized
enterprise. Since he has not met his burden, his determination is not supported by
the facts or my testimony. Thus, he is deprived of any basis in fact or law to
reasonably believe he can claim my originally filed return was frivolous and assess a
penalty against me.
LIMITS OF EXAMINATION AUTHORITY
Based on all the foregoing, it’s manifestly clear that the Commissioner is using
unreliable, inaccurate, and possibly fraudulently manufactured information to
sustain his belief that I had a source of income sufficient to trigger a requirement to
file. However, none of the paperwork I received indicates that the Commissioner has
the authority to perform an examination (26 U.S.C. 7601) outside the seat of
government (4 U.S.C. § 72, 31 U.S.C. § 301, and 26 U.S.C. §§ 7802, 7802) within an
internal revenue district (26 U.S.C. § 7621 and 26 CFR §§ 301.7621-1, and 601.101).
Further, the implementing regulation for 26 U.S.C. 7601 is 27 CFR 75, a regulation
pertaining to the sale of alcohol, tobacco, and firearms. Moreover, the U.S.
government admitted in a criminal trial that the Secretary of the Treasury abolished
internal revenue districts on October 1, 200013. Thus, there are no internal revenue
districts where the internal revenue laws can be administered by district directors of
12 In support of the district court Graham here contends that he was not a "person," asdefined in § 6671(b), since he was simply a member of the corporation's board of directors,was not employed by the corporation and did not serve as an executive officer.[2]
This is too narrow a reading of the section. The term "person" does include officer andemployee, but certainly does not exclude all others. Its scope is illustrated rather thanqualified by the specified examples. In our judgment the section must be construed toinclude all those so connected with a corporation as to be responsible for the performanceof the act in respect of which the violation occurred. United States v. Graham, 309 F.2d 210(9th Cir. 1962)
13 “The IRS Restructuring and Reform Act of 1998 abolished internal revenue districts as of October l, 2000…” U.S. v. Springer and Stilley, 09-CR-00043-SPF, Document 71, Filed inUSDC ND/OK, on May 29, 2009.
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having "taxable income" or "adjusted gross income" as those terms are defined
in the Internal Revenue Code.
NO BASIS IN FACT OR LAW AND NO REASONABLE BELIEF
Since the Commissioner has not supported his ASFR or the resulting NOD with any
laws, regulations, determinations, decisions, or authority, and based on my personaltestimony, he has no basis in fact or law to support either the ASFR or the NOD.
Lacking a basis in fact and law, the Commissioner is deprived of having any
reasonable belief that he can proceed with his ASFR and the resulting NOD.
UNSUPPORTED NAKED ASSESSMENT
The Commissioner’s Proposed Assessment Is Unsupported. According to the
law, an assessment must have a foundation. The Commissioner’s proposed
assessment states that it is relying on purported information returns, but I have
already provided proof that the 3rd party information returns were fraudulently filed,
are inaccurate, and unreliable. The Commissioner has the burden to supporting his
belief that I engaged in a taxable activity. His failure to do so created a presumption
that he doesn’t have any information in his possession or worse, that the
information doesn’t exist. Lacking any supporting documentation or information, he
has proposed a naked assessment , as the Supreme Court discussed in the Janis
case, “What we have is a ‘naked’ assessment without any foundation whatsoever…”
United States v. Janis, 428 US 433 (1976) at 441.
The Commissioner Has the Burden of Proof. When there is a naked
assessment, the burden of proof lies with the Commissioner, as the Supreme Court
noted in the Helvering case, where it stated, “The determination of tax due then
may be one ‘without rational foundation and excessive,’ and not properly subject to
the usual rule with respect to the burden of proof in tax cases.” Helvering v. Taylor,
293 U.S. 507, 514-515 (1935). The court provided further case law supporting this
decision.
[T]he debate does not extend to the situation where the assessment is shown
to be naked and without any foundation. The courts then appear to apply the
rule of the Taylor case. See United States v. Rexach, 482 F. 2d 10, 16-17, n. 3
(CA1), cert. denied, 414 U. S. 1039 (1973); Pizzarello v. United States, 408 F.
2d 579 (CA2), cert. denied, 396 U. S. 986 (1969); Suarez v. Commisioner, 58
T. C. 792, 814-815 (1972). But cf. Compton v. United States, 334 F. 2d 212,
216 (CA4 1964). United States v. Janis, supra.
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The Commissioner’s Proposed Assessment is Arbitrary and Erroneous. The
Commissioner is not at liberty to abuse his discretion and create an assessment
without a foundation. As the Supreme Court stated, "When the tax gatherer puts his
finger on the citizen, he must also put his finger on the law permitting it" United
States v. Merriam, 263 U. S. 179, 188 (1923). United Dominion Industries, Inc. v.
United States, 532 US 822 (2001). The Commissioner’s proposed assessment didnot identify any facts or law for its foundation but rather relied on fraudulently filed
3rd party information returns that are inaccurate and unreliable. This is clear proof
that the proposed assessment is both arbitrary and erroneous. The Supreme Court
decided this issue in Janis when it stated that “[P]roof that an assessment is utterly
without foundation is proof that it is arbitrary and erroneous.” United States v. Janis,
428 US 433 (1976) at 442.
The Commissioner Is Operating Under Color of Law. By the Commissioner’s
proposed assessment, he is determined to deprive me of my property and/or rights
to property without Constitutional due process, deny me my Constitutional right to
be be heard, and to do so under color of law. As a matter of fact, his proposed
assessment is misleading, vague, and ambiguous in that the Commissioner knows
or has reason to know it contains false or frivolous statements about me in
connection with a matter of official interest concerning me, a member of the public.
See 31 CFR § 0.20814.
NO BASIS IN FACT OR LAW TO SUPPORT HIS PROPOSED ASSESSMENT
Since the Commissioner failed to support his belief that I had a requirement to file,
he is proposing an unsupported naked assessment and one that is clearly arbitrary
and erroneous, and determining to deprive me of my property without
Constitutional due process, he must abate his assessment.
PROCEDURAL VIOLATIONS
The IRS has failed to follow its own internal procedures outlined in the Internal
Revenue Manual, the law, the regulations, and delegations orders.
Examination Changes on Form 4549
The regulations require that the ASFR be signed in practically any manner but that it
relate to an individual (See 26 CFR 6330-1(b)(2)) “so long as that name or title was
14 31 CFR § 0.208 Falsification of official records. Employees shall not intentionallymake false, misleading or ambiguous statements, orally or in writing, in connection with anymatter of official interest. Matters of official interest include among other things:
Transactions with the public...
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placed on the document to signify that the Internal Revenue Officer or employee
adopted the document as a return for the taxpayer.”
The Form 4549 is not signed by a living breathing human being. Rather, it is signed,
“Tax Examiner - MS 4388” with Employee ID 1000099936. Based on information
from a FOIA about the employee ID, the FOIA indicated that the employee ID doesnot refer to an individual but instead is a Group ID, none of whose members were
identified. As a result, the authority of the signer of the examination work papers
cannot be identified, and his authority to sign the form cannot be established.
IRM 5.1.15.6 (04-16-2010)
While Delegation Order 5-2 (IRM 1.2.44.3) (formerly DO-182, Rev. 7), allows the
Secretary to complete returns for non-filers, other sections of the IRM specify which
requirements must be met and limit which returns can be filed. According to the IRM
5.1.15.06, the Secretary is limited to the returns he is authorized to make as quoted
below (This list also completely agrees with IRM 5.18.2.3.):
1. BMF IRC 6020(b) adjustments refer to an adjustment of a return prepared
and assessed under IRC 6020(b). The Service has the authority to prepare
returns for any person who fails to submit a return required by Internal
Revenue law or regulation at the time prescribed, or makes (willfully or
otherwise), a false or fraudulent return. The following returns may be
prepared, signed and executed by revenue officers under the authority of IRC
6020(b):
A. Form 940, Employer's Annual Federal Unemployment Tax Return;
B. Form 941 , Employer's Quarterly Federal Tax Return;
C. Form 943 , Employer's Annual Tax Return for Agricultural Employees;
D. Form 944 , Employer's Annual Federal Tax Return;
E. Form 720 , Quarterly Federal Excise Tax Return;
F. Form 2290 , Heavy Vehicle Use Tax Return;
G. Form CT-1 , Employer's Annual Railroad Retirement Tax Return; and
H. Form 1065 , U. S. Return of Partnership Income.
The list quotes only business-related forms, not individual forms. Notably missing
from the list is Form 1040 U.S. Individual Income Tax Return. Further confirmation of
this can be found in the Automated 6020(b) – Privacy Impact Assessment (PIA)
issued on March 29, 2010, which states:
A6020(b) is a non-filer program. The A6020(b) application processes
Business Master File (BMF) taxpayers who do not voluntarily file returns
in a timely manner (past the due date of the return). Internal Revenue Code
(IRC) 6020(b) provides the Internal Revenue Service (IRS) the authority to file
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a tax return for a business when it does not file a required return. [emphasis
added].
The PIA continues by defining who the taxpayer is: “A. Taxpayer – For purposes of
this PIA, the ‘Taxpayer’ refers to a business entity.”
Testimony
I deny I am a business. I deny my SSN relates to a business. As such, I cannot
possibly have a BMF. I further deny I am a “taxpayer” as defined in the above-
mentioned PIA.
Evidence from the IMF and AIMS Procedures
The IRS’ own software does not appear to allow the Commissioner to create Forms
1040 for individuals as part of an ASFR. As best as I can figure from the IDRS and
AIMS manuals, the main codes and process seem to be as follows:
• An ASFR is begun with Transaction Code (TC) 140 or TC 424, which are internal
examinations, which results in a Form 13496 being generated and signed.
• Once signed, a TC 150 is entered into my IMF to generate an ASFR for a given
return type.
• According to the AIMS Reference Guide (5-19-2009), if a TC 424 is attempted
on an IMF, it will be rejected by the built-in safeguards which prohibit the
requisition for an unfiled return.
• The IRS overrides the built-in safeguards by using push code 36 along with TC
424.
• The TC 424 must also be accompanied with a Master File Transaction (MFT)code indicating the type of return the computer will automatically generate for
TC 150.
• These MFT codes allowable with TC 424 are 01-12, 14, 16, 33, 40, 51, 52, 60,
63, 64, 77, and 78. What is missing are MFT codes 30 and 31 which
represent Forms 1040, 1040X, 1040PR, etc. for individual filers.
Thus, the Commissioner knows or has reason to know that his own software
prohibits him from creating ASFR Forms 1040 for individuals.
IMF ErrorsGiven the false and possibly fraudulent information from my IMF, the Commissioner
could conceivably conclude that I am a [small] business [earning up to $10M]
paying wages and income with a requirement to file business returns on a 12-month
fiscal basis. Despite the facts that these are false and possibly fraudulent, the IRM
and PIA are very specific that ASFRs only apply to “taxpayers” with a BMF and
without a doubt, none of those allows the filing of a Form 1040 for an individual.
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As shown above, the Commissioner clearly lacks any basis in fact, law, regulations,
or internal procedures to support his beliefs that the ASFR or the resulting NOD
have any valid foundation or that he can continue with his [proposed] assessment.
In fact, the opposite is true: the Commissioner knew or has reason to know that heis basing his ASFR and the resulting NOD on false, inaccurate, and unreliable
information, some of which is possibly fraudulent to sustain his belief.
If the Commissioner continues on his current path, he will deprive
me of my property and/or rights to property, deny me my
Constitutional right to due process, deny me my Constitutional
right to be heard, and do all this under color of law.
I declare under penalty of perjury of the laws of the United States of America that Ihave read the foregoing letter and know its contents, and to the best of myknowledge the statements therein are true and correct,.
Executed on: Month dd, yyyy _______________________________________
Name - All rights reserved
EnclosuresRevocation of SignatureNotice of Fraudulently Filed 3rd Party Information Returns for yyyy-yyyy
cc.Director, Ogden Service Center/CampusInternal Revenue Service1160 West 1200 South Street
Ogden, UT 84201
Director, Ogden Service Center/CampusInternal Revenue Service1160 West 1200 South StreetOgden, UT 84201ATTN: Compliance Technical Support Manager
Internal Revenue Service
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