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Russell v. United States

March 22, 2010

KENNEDY M. RUSSELL, SR., PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



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

MEMORANDUM & ORDER

Before the Court is defendant United States of America's motion to dismiss (Doc. 90), to which plaintiff has filed a response (Doc. 91).

BACKGROUND

Plaintiff's third amended complaint,*fn1 (Doc. 82) while often difficult to decipher, has been given every benefit of liberal construction and interpretation by the Court. Plaintiff claims that he is a "natural born [c]itizen of the [U]nited States of America, a [s]tate [c]itizen, not a federal citizen." (Doc. 82). He claims that the Internal Revenue Service ("IRS") is not a governmental entity or agency and has never been created by public law. Plaintiff attempts to categorize his claims as wholly unrelated to taxes, he alleges:

THIS ENTIRE SUIT IS FILED SEEKING DAMAGES FOR ONE (1) THING ONLY: VIOLATION OF ORIGINAL, ORGANIC, CONSTITUTIONAL RIGHTS.

THIS SUIT HAS NOTHING TO DO WITH COLLECTION, PAYMENT OR NONPAYMENT OF TAXES; NOTHING TO DO WITH AN ASSERTION OF A CLAIM UNDER TITLE 26; IT HAS NOTHING TO DO WITH TAXES, ONLY FUNDAMENTAL RIGHTS VIOLATIONS WITHOUT DUE PROCESS OF LAW. (Doc. 82).

Although he makes this assertion and makes another similarly emphasized statement in his complaint, he proceeds to describe his rights violations as wholly based upon the processes and procedures used by the IRS and its agents in collecting taxes from him. The complaint consists of 3 counts.

In Count 1, plaintiff alleges that the proper procedure for filing a Notice of Federal Tax Lien ("NFTL") was not followed; namely, because he is not a taxpayer, not liable for taxes, and the assessment officers who signed the lien were not authorized to do so.

In Count 1.2, plaintiff alleges that no lawful assessment occurred for 1995 or 1996 (the years for which the NFTL was created). In Count 1.3 he alleges that no lawful assessment was made for the NFTL and that the NFTL prosecution was carried out by "[c]ollusion or [c]onspiracy" by defendants Jones and Hayes, in violation of plaintiff's fundamental rights. In Count 1.4 plaintiff claims that Jones and Hayes are "non-enforcement Revenue Officers," not authorized to sign notices, liens, or levies, and only the Bureau of Alcohol, Tobacco, and Firearms ("BATF") is authorized to do so. In Count 1.5, plaintiff claims that the IRS has not complied with the law since it has not filed an action to enforce the lien, even though a monthly exaction against his Social Security Disability Benefits is ongoing.

In Count 1.6 plaintiff alleges that defendants Hayes and Jones overstepped their lawful authority, "under [c]olor of [l]aw and [c]olor of [o]ffice," causing plaintiff irreparable harm.

Plaintiff lists a number of forms of harm suffered, including:

Pain, suffering, emotional distress, anxiety, encumbrance of property, public humiliation, public defamation of character, violation of privacy rights, damage to credit rating, deterioration and almost total destruction of Plaintiff's business.

In Count 1.7 plaintiff alleges that the IRS took action that is under the exclusive jurisdiction of the BATF. In Count 1.8 plaintiff claims he is not a taxpayer. In Count 1.9, plaintiff claims that beginning in 1995, he has sent 14 public record documents to the St. Clair County Recorder's Office and 23 documents to "upper echelon IRS officials." Plaintiff claims that since the IRS did not dispute the contents of these documents, consent was implied. He asserts that the conclusive presumption that he is a taxpayer violates due process.

In Count 1.10, plaintiff alleges that he was injured by the United States through the acts of the other defendants in violation of his fundamental rights. In Count 1.11, plaintiff asserts that his damages include the following: damage to personal credit rating, damage to image, inability to refinance his property at a lower interest rate, damage to reputation and image, defamation of character, receipt of threatening letters, denial of reversible home loan, 15% of his Social Security Disability Benefits exacted by the IRS, violation of privacy, and ...


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