Free Motion to Amend/Correct - District Court of California - California

Case 5:07-cv-03141-JF

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Robert Alan Jones, Esq. Pro hac vice RAJ LIMITED, PC 1061 East Flamingo Road, Suite #7 Las Vegas, Nevada 89119 (702) 791-0742 Telephone (702) 736-0773 Facsimile [email protected] CHRIS DIETRICH, Bar No. 092592 11300 West Olympic Boulevard Suite 800 Los Angeles, California 90064 (310) 312-6888

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE ) ) Plaintiff, ) v. ) ) ) ) UNITED STATES OF AMERICA, ) Defendant. ) ) ) ____________________________________) VICKI R. SEIDEL

CASE NO: 5:07-CV-03141

MOTION FOR TEMPORARY RESTRAINING ORDER 20 Vicki R. Seidel, by and through her attorneys, Robert Alan Jones, and John McCahill 21 hereby files her motion for Temporary Restraining Order against the United States of America 22 including its Commissioner of Internal Revenue pursuant to Rule 65 Federal Rules of Civil 23 Procedure for the reasons states infra. 24 Jurisdiction 25 On June 14, 2007, the plaintiff herein filed a complaint in this Honorable Court pursuant to 26 26 U.S.C. § 7426 for injunctive relief and damages due to wrongful levies against Vicki Seidel's 27 property authorized by the Commissioner of the Internal Revenue Service. The United States has 28

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waived sovereign immunity for the underlying action under 26 U.S.C. § 7426 which provides if a levy has been made on property of any person other than the person against whom is assessed the tax out of which such levy arose, that person who claims an interest in or lien on such property may bring a civil action against the United States ...in a district court of the United States. Further, the United States has further waived its rights under the Anti-Injunction Act pursuant 26 U.S.C. § 7426(b)(1). The instant motion is brought pursuant Federal Rule of Civil Procedure 65(a), (b) and 26 U.S.C. § 7426(b)(1) which states in pertinent part: "If a levy or sale would irreparably injure rights in property which the court determines to be superior to rights of the United States in such property, the court may grant an injunction to prohibit the enforcement of such levy ... ." FACTS Vicki Seidel has had her personal bank account levied and 100% of her salary levied The seizures of Vicki Seidel's property (monies) were made in the absence of notice, demand, assessment or allowing Plaintiff a right to a due process hearing pursuant to IRC Sec. 6330. Without notice and opportunity for a hearing, the United States, wrongfully levied the bank account of Vicki Seidel, from Washington Mutual Bank, account no. 0980711488 on or about May 29, 2007 (See Notice of Levy , Exhibit 1). Furthermore, Defendant United States on June 12, 2007 has wrongfully attempted to levy 100% of Vicki Seidel's salary from her employment ignoring statutory exemptions. (See Notice of Levy on Wages, Salary and Other Income, Exhibit 2). The amounts subject to levy are about $4,400. for June, 2007. The underlying tax debt is not that of Vicki Seidel. Mr. Thomas Seidel, the president of T.E. Seidel Electric, Inc.(" Electric"), was allegedly assessed with a 100% penalty pursuant to 26 U.S.C. §6672 for failing to collect and pay over certain payroll taxes owed to the IRS on October 23, 1996. (Exhibit 3, Declaration of Vicki Seidel). Mr. Seidel is married to Vicki Seidel, a California resident, and the Plaintiff herein.(Exhibit 3). Mrs. Vicki Seidel was absolved of responsibility for any of Electric's payroll taxes in a letter

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from Steven Penrod of the IRS dated May 13, 1999. (See Exhibit 4). The monies wrongfully levied /seized on several occasions were from a citizen who had no tax obligation to the United States government, nor the Internal Revenue Service, and was not related to the underlying transaction which is the cause of the seizures. (See Declaration of Vicki Seidel, Exhibit 3 ). The Government Cannot Prevail The seizures were in the absence of notice, demand, assessment or allowing Plaintiff a right

8 to a due process hearing pursuant to IRC Sec. 6330, and the United States may not prevail as a matter 9 of law. Further, Vicki Seidel was absolved of responsibility for any of the underlying payroll taxes 10 in a letter from Steven Penrod of the IRS dated May 13, 1999, and in their collections efforts for these 11 same taxes the United States cannot prevail as a matter of law. Finally, the ten year collections period 12 following alleged assessment of the 100% penalty against Mr. Thomas E. Seidel has expired, and the 13 penalty is no longer collectible against anyone as a matter of law. 14 15 Irreparable Injury Vicki Seidel is the mother of infant children and the seizure of 100% of her compensation will

16 irreparably injure her and her children in that she will not have the funds available to her to support 17 her children and herself. Furthermore, this current levy is interfering with Vicki Seidel's employment 18 relationship with her employer and her professional reputation in the employment community in 19 which she works. Finally, levy of 100% of Vicki Seidel's salary on a continuing basis is against the 20 intent of the Internal Revenue Code and public policy. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 28 3

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WHEREFORE, Plaintiff, Vicki Seidel, prays that the Court grant the instant motion for a

2 Temporary Restraining Order and schedule a hearing regarding preliminary injunctive relief in 3 regards to levies and other collection efforts by the IRS, including levies of her bank accounts and 4 levies of 100% compensation for her employment as soon as practicable. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 /s/ Chris Dietrich CHRIS DIETRICH, Bar No. 092592 11300 West Olympic Boulevard Suite 800 Los Angeles, California 90064 (310) 312-6888 /s/ Robert Alan Jones Robert Alan Jones, Esq. Pro hac vice RAJ LIMITED, PC 1061 East Flamingo Road, Suite #7 Las Vegas, Nevada 89119 (702) 791-0742 Telephone (702) 736-0773 Facsimile [email protected] DATED: This 15th day of June, 2007. Respectfully submitted,

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CERTIFICATE OF SERVICE

This is to certify that on June 15, 2007, I caused to be served the foregoing MOTION FOR

4 TEMPORARY RESTRAINING ORDER, using the electronic court filing system, and will be 5 distributed to all parties shortly after its filing. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Dated this 15th day of June, 2007. /s/ Stephanie Burton Office of Robert Alan Jones United States Attorney George S. Cardona %United States Attorney's Office 150 Almaden Blvd., Suite 900 San Jose, CA 95113 (408) 535-5061 Attorney General Alberto Gonzales Office of the Attorney General 1300 I Street Sacramento, Ca 95814 (916-445-9555) Area Director Central California District Internal Revenue Service 55 South Market Street San Jose, California 95113