COUNSEL IS REQUIRED IF THE STATE WANTS TO PUT YOU IN JAIL

There exists abundant case law to support the Sixth Amendment right of a defendant to the assistance of counsel when imprisonment is a possibility.  If you have been indicted by the State for a tax crime or if you are challenging a summons, and you don't have the money for counsel, be sure to check out this issue.  The State is not supposed to put you in jail unless you have counsel. If you can't afford counsel, then they must provide counsel if they expect to punish you with a jail sentence. In Argersinger v. Hamlin, 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006, the court held:

"We hold therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.  That is the view of the Supreme Court of Oregon, with which we agree.  It said in Stevenson v. Holzman, 254 Ore. 94, 102, 458 P.2d 414, 418:  ‘We hold that no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment.  This holding is applicable to all criminal prosecutions, including prosecutions for violations of municipal ordinances.  The denial of the assistance of counsel will preclude the imposition of a jail sentence.'"

Also from Argersinger:

"The requirement of counsel may well be necessary for a fair trial even in a petty-offense prosecution.  We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.  See, e.g., , 392 Powell v. Texas U.S. 514; Thompson v. Louisville, 362 U.S. 199; Shuttlesworth v. Birmingham, 382 U.S. 87." 

And,

"The misdemeanor trial is characterized by insufficient and frequently irresponsible preparation on the part of the defense, the prosecution, and the court... There is evidence of the prejudice, which results to misdemeanor defendants from this ‘assembly-line justice.'  One study concluded that ‘[m] misdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel.'  American Civil Liberties Union, Legal Counsel for Misdemeanants, Preliminary Report I (1970).  We must conclude, therefore, that the problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial."

WHERE ARE THE BUCKS?

            During the last thirty years, the rich have managed to get a tax system enacted that puts the principal tax burdens on the middle class.  The tax law has become extremely complicated so that the rich can use it to their advantage. In this way, the middle class can be confused and easily lead to the slaughter each April.

            The middle class and below, (Those who earn less than about $80,000 a year and derive their income from wages) are picking up the lion's share of the tax burden).

            The pressures of the system are getting harder and harder for the average person to bear.  The tax system is a major factor in forcing our society into a two-class society.  We have a system that is jury-rigged by Congress to cater to the demands of the rich and powerful at the expense of those who are less fortunate.  It ignores the needs of the powerless.

            For example, In 1954, corporations paid seventy five- cents in taxes for every dollar paid by individuals and families.  In 1994, they paid about twenty cents for every dollar paid by individuals and families.

            In the year 1986, over 250 families that earned over $1 million dollars paid no taxes.  In 1989 over 1,000 individuals and families paid not one dollar in federal income tax even though their incomes exceeded $200,000.  What would happen to a middle class individual who tried to pay no income taxes?  The IRS would kick him out of home and throw him out on the street to starve.  The situation continues to get worse.

            There has been a class war in the United States.  It is a war of the rich against the middle class.  In the meantime, while the tax system is raping and pillaging the workers, the higher paying manufacturing jobs are being eliminated and lower paying service jobs are being created.  The jobs paying $20.00 an hour are disappearing and new jobs paying $8.00 an hour in the service sector are appearing.  Many middle class persons, who have been unable to find comparable work, have been forced into lower paying jobs.  And the National Debt continues to increase.  From 1980 to 1993, spending for the food stamp program rose from $9 billion to $25 billion, during the same period of time, the interest on the national debt went from $53 billion to $199 billion -- an increase of 275 percent.

            In order to straighten out the country's economic problems, Congress has seen fit to raise the Social Security tax rates only on middle-income workers so that it can use the excess money to pay for other government programs and disguise the size of the deficit.  Congress is now taxing the unemployed on their benefits while anyone who makes more than $60,600 escapes the Social Security Tax on all income above $60,600.  Since Congress is stealing from Social Security to pay the bills, the richer individuals are escaping the burden.

            The amazing fact however, is that individuals keep voting in favor of this system each year by voluntarily waiving their Fifth Amendment Rights each April 14.  Remember that when you voluntarily waive your Fifth Amendment Rights, you vote in favor of the income tax.  Why don't you think about filing a lawsuit against the IRS instead of filing a tax return?  It will be a tremendously powerful vote against the Income Tax.  If you want to learn more about the above issues, to buy the book: America: Who Really Pays the Taxes? By Bartlett and Steele.  It will really give you the facts.

Quiet Title Suit Makes Big Waves

            John Iwaneczko who lost his home to the IRS several years ago, filed a quiet title suit against Placido Fedele, the individual who purchased his house at the IRS sale.  John alleged that the IRS failed to follow proper procedures so the IRS' sale is invalid and he wants Placido to give him his home back.   The court came down with a great opinion of law in response to the defendant's motion to dismiss. 

            The court stated:

            The plaintiff alleges that defendant did not diligently supervise the IRS In the seizure and sale of the property, did not notify him of his redemption rights, and failed to pay a fair and equitable price for the property. 

            The Internal Revenue Code, and specifically 26 U.S.C. Section 6337, does not place any affirmative duty on the purchase to exercise due diligence to assure that the IRS complied with its statutory requirements. However a reasonable purchaser of property from an IRS tax sale has constructive notice that the IRS is to comply with the law in order to convey property.  If the buyer ignored the possibility that the IRS may not have followed the law, the buyer is not a bona fide purchaser (BFP).  See Anderson v Zenali, No. CV-95-4035-WJR, 1996 WL 628180, 1 (C.D. Cal. July 3, 1996).

            Here, the language of the complaint appears to allege a breach of duty.  The same allegations using other language would suffice to allege that defendant was not a BFP.  The complaint was filed pro se prior to the appearance of plaintiff's counsel in the case.  On a motion to dismiss, a pro se complaint must be liberally construed.  See Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991; see also Hughes v. Rowe, 449 U.S. 5, 9-10 (1980).  So construed, the complaint sufficiently alleges a claim and defendant's motion on this ground is denied.

            ...Plaintiff states in his affidavit that the IRS did not timely deliver the notice of seizure nor did the IRS timely hand deliver the seized property sale report to the plaintiff.  He also states that in violation of 26 U.S.C. Section 6334(e), the IRS failed to obtain a special order from the District Director, which authorized the sale of plaintiff's principal residence.  Plaintiff states that the IRS failed to perfect effective service of the Notice of Sale as required in 26 U.S.C. Sections 6335(a) and (b).  Plaintiff further states that the IRS did not adequately advertise the sale in a local newspaper.  The statements set forth in plaintiff's sworn affidavit, if accepted suffice to overcome the presumption. There are, then genuine issues of material fact in dispute regarding the validity of the sale of the property.  Accordingly, defendant's motion for summary judgment is denied.

            The plaintiff has alleged that the sale of the property was an inequitable conveyance, as it was not sold for a reasonable price.  The defendant contends that although a court may set aside a sale of property when it is sold by the IRS at a price that is "shocking" to the judicial conscience, it is inappropriate to set aside a sale for mere inadequacy of price. 

            The plaintiff submitted IRS Form 4585, in which the IRS calculated the reduced, forced sale price of the property to be $81,000 as evidence of the equitable price for sale of the property.  The defendant presented evidence that defendant paid not only the $6,000 purchase price to the IRS but also $19, 879.58 in mortgages and liens which encumbered the property.  In addition, defendant has submitted a current appraisal of the property.

            After a thorough review of the parties' arguments, recitals to case law, and evidentiary submissions, there remain numerous genuine issues of material fact in dispute regarding the reasonableness of the purchase price.  Accordingly plaintiff's motion for summary judgment on this ground is denied.

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            As you can see, John, the plaintiff in this action,  really got the court's interest.  The IRS has apparently destroyed all their records regarding the sale of property, possibly because they knew that they had violated their own procedures in the sale. Certainly, it is possible that the IRS destroyed its records to prevent knowledge of their faulty procedures as the GAO has alleged.  As you can see, from the court's order in this case, it can be very dangerous to purchase property from the IRS at a tax sale.