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KNOTTNERUS v. UNITED STATES

January 31, 1984

CORNELIUS KNOTTNERUS, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND COMMISSIONER OF INTERNAL REVENUE, DEFENDANTS.



The opinion of the court was delivered by: Getzendanner, District Judge:

MEMORANDUM OPINION AND ORDER

This case is before the court on the defendant's motion to dismiss or in the alternative for summary judgment. The motion is based entirely on the pleadings and therefore shall be treated as a motion for judgment on the pleadings. The allegations of the complaint are taken as true for purposes of this motion.

The plaintiff alleges that he filed his 1982 income tax return which was found to be frivolous by the Internal Revenue Service. The plaintiff did not provide any of the information required by the income tax return, but instead asserted his right against self-incrimination and provided to the Service a 16-page memorandum and exhibits supporting his grounds for asserting and claiming his right against self-incrimination. Although the tax return is not part of the record, the complaint specifically alleges that the plaintiff's grounds for his fear of self-incrimination are as follows (¶ 3(h) of the complaint):

    The crime that we fear being prosecuted for, if we
  are compelled to supply information as to our income,
  is within the grouping which we have stated, but we
  don't have to confess which one it is or state a
  specific danger.

The plaintiff timely filed his response to the government's motion but asked for an additional 60 days in which to file a fuller response. The response the plaintiff did file contains a sophisticated, articulate discussion of the plaintiff's position and refers the court to a number of cases and relevant materials, such as the Manual Supplement, Department of Treasury, Internal Revenue Service, which discusses the Service's treatment of taxpayers who file self-incrimination tax returns. Plaintiff is seeking an order of immunity and asserts that upon receipt of this order he will provide the required information to the Service. In addition, the plaintiff complains that the Service is arbitrarily characterizing him and others similarly situated as "illegal" tax protesters.

The court has reviewed the applicable case precedents because the plaintiff is appearing pro se. Based on this review, the court concludes that granting the plaintiff an additional 60 days in which to further respond to the motion would be futile.

The penalty assessed against the plaintiff by the Service was under 26 U.S.C. § 6702 which provides for a civil penalty of $500 if the taxpayer files a return which does not contain information on which the substantial correctness of the taxpayer's self-assessment may be judged and such conduct is due to a position which is frivolous. The assertion of the right against self-incrimination in a tax return is frivolous when the taxpayer does not make a colorable showing that he is involved in some activity for which he could be criminally prosecuted. United States v. Verkuilen, 690 F.2d 648, 654 (7th Cir. 1982). The grounds for the plaintiff's fear of self-incrimination, set forth above, do not constitute such a colorable showing.

It is important to note that the taxpayer's state of mind when filing his tax return is not part of the test. Thus, even assuming the plaintiff's good faith when he filed his return, the tax return still meets the test of Section 6702.

The government's motion also notes that the Commissioner of Internal Revenue is not the proper defendant and in response to this motion the plaintiff has moved to amend to make the United States the defendant. The motion to amend will be granted. The government's motion for summary judgment is granted. This case is dismissed.

It is so ordered.

19840131

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