Procedural Violations.
Turpin v. Lemon, 187 U.S. 51, 60, 42 L.Ed. 70, 75 (1902) (Under the 14th Amendment the legislature is bound to provide a method for the assessment and collections of taxes that shall not be inconsistent with the natural justice; but it is not bound to provide that the particular steps of a procedure for the collection of such taxes shall be provided by written evidence; and it may properly impose upon the taxpayer the burden of showing that in a particular case the statutory method was not observed.); http://laws.findlaw.com/us/187/51.html
Rothensies v. Ullman, 110 F.2d 590 (3rd Cir. 1940) (Federal DC had jurisdiction to quash warrant of distraint on joint bank account of husband and wife [28 U.S.C. § 747; 28 U.S.C. § 41(5)]; It has been held by the Supreme Court that district courts have jurisdiction of property "taken or detained" by revenue officers are given power by the last section to decide claims of title and to award to the rightful owner possession of the property seized (at 592) [Fassett; 26 U.S.C. § 7421]; (Anti-Injunction Act) was not intended to deprive the courts of jurisdiction to restrain revenue officers from illegally collecting taxes out of property which does not belong to the person indebted to the government (at 592) [Long; Economy Plumbing];
Tomlinson v. Smith, 128 F.2d 808 (7th Cir. 1942) (Court affirmed an order granting interlocutory injunction of taxes and noted the distinction between suits instituted by taxpayers and nontaxpayers [26 U.S.C. § 7421, Anti-Injunction Act; Economy Plumbing]);
Raffaele v. Granger, 196 F.2d 620 (3rd Cir. 1952) (Suits to enjoin collection of taxes which are not due from Plaintiff but, in fact, are due from others [Cf. Economy Plumbing; 26 U.S.C. § 7421; Anti-Injunction Act]);
Flora v. U.S., 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960) ([362 U.S. 145, 176] Our system of taxation is based upon voluntary assessment and payment, not upon distraint.42 A full-payment requirement will promote the smooth functioning of this system; a part-payment rule would work at cross-purposes with it.43 ; 28 U.S.C. § 1346 (a); partial payments; [C.I.R. v. Acker]; right of action against collector [5 U.S. Stat. 348; 5 U.S. Stat. 727; Bend; Bowers v. U.S.; Bushmiaer; Camp; Cary; Cheatham; City of Phila; Coates; Elliott; Ohio Steel; Sirian; Smietanka; Suhr; U.S. v. Emery]; http://laws.findlaw.com/us/362/145.html
Graham v. Lawrimore, 287 F.2d 207, 185 F.Supp. 761 (1960) (procedural violation; rule is ineffective; no force in law; 5 U.S.C. § 1003]);
Botta v. Scanlon, 288 F.2d 504 (2nd Cir. 1961) (It has long been settled that this general prohibition is subject to exception in the case of an individual taxpayer against a particular collector where the tax is clearly illegal or other special circumstances of an unusual character make an appeal to equitable remedies appropriate [National Foundry; 26 U.S.C. § 7421, Anti-Injunction Act]; A reasonable construction of taxing statutes does not include vesting any tax official with absolute power of assessment against individuals not specified in the statutes as persons liable for the tax without an opportunity of a judicial review of this status before the appellation of "taxpayer" is bestowed upon them and their property is seized and sold. (at 508);
Enoch v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962) (taxes; injunction; extra ordinary circumstances; can not ultimately prevail; guise of a tax [Anti-Injunction Act; 26 U.S.C. § 7421]); http://laws.findlaw.com/us/370/1.html
Brafman v. United States, 384 F.2d 863 (5th Cir. 1967) (As the district court said in United States v. Lehigh, W.D.Ark.1961, 201 F.Supp. 224, 234, Any procedural defense is in a sense "technical." The procedures set forth in the Internal Revenue Code were prescribed for the protection of both Government and taxpayer. Neglect to comply with those procedures may entail consequences which the neglecting party must be prepared to face, whether such party be the taxpayer or the Government.); Accord, Miller v. Commissioner, 8 Cir. 1964, 333 F.2d 400; McCord v. Granger, 3rd Cir. 1952, 201 F.2d 103; Warner Bros. Pictures Inc. v. Westover, S.D.Cal.1947. 60 F.Supp. 111. http://www.angelfire.com/oh5/waltmaken/RDExhibitE.html
Bowers v. U.S., 423 F.2d 1207 (5th Cir. 1970) (Appeal from dismissal of action seeking to enjoin collection of wagering taxes was appropriate for summary disposition without oral argument [Anti-Injunction Act; 26 U.S.C. § 7421]; To authorize an exercise of equitable jurisdiction, Bowers must establish the inadequacy of his legal remedies. Enochs; He contends that the "pay and sue" provisions of 7422 are inadequate in the instant case, since he cannot afford to pay the assessment and sue for refund; Thus, Bowers could have paid the tax on a single wagering transaction and tested the validity of the assessment in a suit for refund of that amount (at 1208);
Mitchum v. Foster, 407 US 225 (1972) (Title 42 U.S.C. 1983, which authorizes a suit in equity to redress the deprivation under color of state law "of any rights, privileges, or immunities secured by the Constitution . . .," is within that exception of the federal anti-injunction statute, 28 U.S.C. 2283, that provides that a federal court may not enjoin state court proceedings "except as expressly authorized by Act of Congress.") http://laws.findlaw.com/us/407/225.html
Bob Jones University v. Simon, 416 U.S. 725, 40 L.Ed.2d 496 (1974) (Anti-Injunction Act could be avoided only if there was proof of both irreparable injury and certainty of success on merits; pre-enforcement injunction being permissible only if it was clear that under no circumstances could the government ultimately prevail [26 U.S.C. § 7421]; Anti-Injunction Act apparently has no recorded legislative history [Miller; Enoch]; declaratory judgment act [cites numerious law reviews on injunctions against taxes]); http://laws.findlaw.com/us/416/725.html
Laing v. U.S., 423 U.S. 161, 96 S.Ct. 473, 46 L.Ed.2d 416 (1976) ("root requirements" of the due process clause is "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extra-ordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event" (at 486) [Boddie at 380]; thus, the governing due process principle obliges the I.R.S. to provide a prompt hearing at which the I.R.S. must prove "at least probable cause" for its claim (at 487) due process would at least require some supporting rationale for denying taxpayer the opportunity for a prompt preliminary determination by an unbiased tribunal on the validity of the basis for the assessment (at 487); taxes voluntary, not upon distraint (at 489); Anti-Injunction Act, Enoch v. Williams is exception [26 U.S.C. § 7421]; tax seizures are not different from other deprivations for due process purposes (at 487); notice of deficiency is a jurisdictional prerequisite to tax court petition [Bothke at 1412]; denial of opportunity to litigate in tax court is out of keeping with thrust of I.R. Code (at 474); http://laws.findlaw.com/us/423/161.html
C.I.R. v. Shapiro, 424 U.S. 614, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976) (normally, I.R.S. may not "assess" or collect a tax by levying on or otherwise seizing a taxpayer's assets, until the taxpayer has had an opportunity to exhaust his administrative remedies which include an opportunity to litigate his tax liability fully in the tax court; and if the service does attempt to collect the tax by levy or otherwise, before such exhaustion of remedies, the collection is not protected by the Anti-Injunction Act and may be restrained by a U.S. district court at the instance of the taxpayer [26 U.S.C. § 6212; 26 U.S.C. § 6213; 26 U.S.C. § 7421]; Whether Commissioner has a chance of ultimately prevailing for purposes of the "Williams Packing" exception to the Anti-Injunction Act is a question to be resolved on the basis of the information available to the Commissioner at the time of suit [26 U.S.C. § 7421]; The taxpayer himself must still plead and prove facts establishing that his remedy in the tax court or in a refund suit is inadequate to repair any injury caused by an erroneous assessment or collection, in which case the commissioner is required simply to litigate the question whether the assessment has a basis in fact [26 U.S.C. § 7421 a]; The due process clause requires that the party whose property is taken be given an opportunity for some kind of pre-deprivation or prompt post deprivation hearing at which some showing of the probable validity of the deprivation must be made; If taxpayer shows extraordinary circumstances causing irreparable harm for which he has no adequate remedy at law, the district court should conclude that the absence of a remedy at law was due to the taxpayer's failure to pursue his petition before the tax court, then equity would not intervene and the complaint would be subject to dismissal; injunction may be obtained if (1) it is "clear that under no circumstances could the Government ultimately prevail" and (2) equity jurisdiction otherwise exist in that the taxpayer shows that he would otherwise suffer irreparable injury [26 U.S.C. § 7421]; The taxpayer can never know, unless the Government tells him, what the basis of the assessment is and thus can never show that the Government will certainly be unable to prevail; rational basis; factual foundation; jeopardy [Enoch]); http://laws.findlaw.com/us/424/614.html
Bothke v. Fluor Engineering and Constructors Inc., 713 F.2d 1405, 1406 (9th Cir. 1983) (Violations of procedural rights are exception to Anti-Injunction Act); 26 U.S.C. § 6213 (a)(b)(2); 26 U.S.C. § 7421 (a);26 U.S.C. § 6213 (a)(b)(2); 26 U.S.C. § 7421 (a); Act of March 2, 1867; 14 Stat. 475; amended by 80 Stat 1144; rescripted by 26 U.S.C. § 7421;
Scar v. C.I.R., 814 F.2d 1363 (9th Cir. 1987) (Failure to comply with statutory requirements renders deficiency notice null and void and leaves nothing on which Tax Court jurisdiction can rest. [26 U.S.C. § 6212 (a)]; notice of deficiency, requirements; last known address); http://home.earthlink.net/~mb/scar.htm [aff'd. Wertin v. F.T.B., B114114 & B117076 Calif. Super. Ct. No. BC 128955 (12/21/1998) http://freecaselaw.com/ca/B114114.htm ; see: Village of Dimondale v. Leslie A. Grable; No. 213277 Eaton Circuit Court, LC No(s). 97-001253-CH (Mich.App. 04/21/2000) http://www.michbar.org/opinions/appeals/2000/042100/6815.html
Cf. 49 Harv.L.R. 109 (1935) (Enjoining the Assessment and Collection of Federal Taxes Despite Statutory Prohibition); 60 Harv.L.R. 685 (Tax Refund Suits Against Collectors of Internal Revenue, by Plumb); 26 U.S.C. § 7421 (Prohibition Of Suits To Restrain Assessment Or Collection); 26 U.S.C. § 7422 (Civil Actions For Refund); 26 U.S.C. § 7424 (Civil Action To Clear Title To Property); 26 U.S.C. § 7426 (Civil action by person other than taxpayers); 26 U.S.C. § 7430 (b)(2) (Exhaustion Of Administrative Remedy); 26 U.S.C. § 7433 (Civil damages for certain unauthorized collection actions); 5 U.S. Stat. 348; 5 U.S. Stat. 727 (Right of action against collector);
A FEW CASES ON PROCEDURAL VIOLATIONS
