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Shephard v. Internal Revenue Service

September 26, 2006

LUCINDA L. SHEPHARD, PLAINTIFF PRO SE,
v.
INTERNAL REVENUE SERVICE, DENISE BRADLEY, BANK OF NEW YORK, AND LAURA KUSHELEVA, DEFENDANTS.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Defendants Bank of New York and Laura Kusheleva move to dismiss the complaint pursuant to Rules 12(b)(5) and (6) of the Federal Rules of Civil Procedure. Plaintiff Lucinda Shephard opposes defendants' motion.

THE COMPLAINT

Construed liberally, the complaint alleges as follows: In July 2003, the Internal Revenue Service (IRS) sent a letter stating it had changed plaintiff's tax return form and threatening to issue a "Notice of Deficiency". Plaintiff responded to the IRS with a letter requesting that the IRS provide its credentials and "the delegation of authority to change [her] return." Plaintiff received neither.

In November 2003, the IRS sent plaintiff a letter threatening to seize plaintiff's wages or property. The letter also listed a "CIUPen for period ending 12/31/2001 for the amt. of $500 plus interest." Plaintiff responded with a letter to the IRS requesting a copy of the original lien pursuant to the Freedom of Information Act. Plaintiff has not received a copy of the original lien.

In December 2003, plaintiff received a letter from the IRS containing a "Final Notice of Intent to Levy." Plaintiff replied with a request for a copy of the "original judge signed levy". According to the complaint, "[n]one has been received."

In April 2004, plaintiff received a letter from the IRS stating that it had changed her "1040A Form" for the 2001 tax year as a result of a recent audit. Plaintiff requested that the IRS send her a document showing "a delegation of authority to change or make up a 1040 return and the Internal Revenue Code sections that show liability for tax they claim [she] owe[s]."

In June 2004, the IRS sent a second "Final Notice of Intent to Levy." Again, plaintiff responded with a request for a copy of the "original levy". "None has been sent."

In May 2005, defendant Denise Bradley, operations manager of the Kansas City, Missouri office of the IRS, sent a "Notice of Levy" to defendant Bank of New York, plaintiff's employer.

Defendant Laura Kusheleva, who worked in the Bank's payroll operations, "forwarded a copy of same in June 2005", presumably, to plaintiff. Plaintiff then "forwarded" copies of the above referenced letters from the IRS, her responses to them, and the "applicable laws" to Kusheleva. Plaintiff then sent a "reply" to Bradley and Kusheleva stating that since the IRS failed to provide a copy of the "original levy", she concluded that the IRS had "filed no such original levy for which there is any tax bill" and had no legal authority to collect "any penalty or interest".

On July 7, 2005, the Bank took $385.08 from plaintiff's pay in response to what plaintiff alleges is "the illegal notice of levy" "without proper delegation of authority or a copy of the original levy".

As a result of the above events, plaintiff brings three causes of action. First, plaintiff asserts that the IRS altered her "Form 1040A" for the 2001 tax year without "delegation of authority" and in violation of Internal Revenue Code (IRC) § 6020(b) and "Delegation Order No.DD-OKC-150 rev 4". Second, plaintiff asserts that the IRS, Bradley, the Bank, and Kusheleva improperly garnished her earnings in violation of 28 U.S.C. § 3001 et seq., the Federal Debt Collections Procedure Act (FDCPA) and the IRC. Third, plaintiff alleges that the IRS violated 26 U.S.C. ...


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