Partnership Files Suit Against IRS for Denying Appeals Review

HANCOCK COUNTY LAND ACQUISITIONS, LLC,
Plaintiff,
v.
UNITED STATES OF AMERICA,
THE INTERNAL REVENUE SERVICE,
INTERAL REVENUE SERVICE MANAGER CATHERINE C. BROOKS, and
INTERNAL REVENUE SERVICE REVENUE AGENT PAMELA V. STAFFORD,
Defendants.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

COMPLAINT FOR DECLARATIVE, INJUNCTIVE AND MANDAMUS RELIEF

Plaintiff, Hancock County Land Acquisitions, LLC (“Plaintiff”), for its complaint against Defendants, the United States of America (“U.S.”), the Internal Revenue Service (“IRS”), IRS Manager Catherine C. Brooks, and IRS Revenue Agent Pamela V. Stafford (“Agent Stafford”)(collectively, “Defendants”), allege as follows in support of said complaint:

SUMMARY OF THE CLAIM

1. The primary question presented by this case is whether the Defendants are subject to the laws as enacted by Congress, or whether the scope of the Defendants' authority to enforce the provisions of the Internal Revenue Code (“Code”) are so broad that they exceed the statutorily created mandates imposed by Congress and the constitutional norms of due process. More specifically, the question is whether Code § 7803(e) which: (1) establishes an “Internal Revenue Service Independent Office of Appeals” (“Appeals Office”), (2) provides that the Appeals Office is to provide a process for resolving tax controversies without litigation on a basis which: is fair and impartial, promotes a consistent application and interpretation of the Federal tax laws, and enhances public confidence in the integrity and efficiency of the IRS; and (3) requires the IRS to make the Appeals Office resolution process “generally available to all taxpayers.” Code § 7803 further requires the IRS to “prescribe procedures for protesting to the Commissioner of Internal Revenue a denial of a request [for a referral to the Appeals Office].”

2. Code § 7803(e)(4) clearly requires the Defendants to grant taxpayers an opportunity to resolve their case with the Appeals Office. However, when Plaintiff informed Defendants of its desire to avail itself of the process proscribed by Code § 7803(e), Defendants denied Plaintiff's request indicating that there was insufficient time remaining on the statutory period for the assessment and collection of taxes. After Plaintiff sent Defendants a signed Form 872-P, Consent to Extend Time to Assess Tax Attributable to Partnership Items — agreeing to extend the period for assessment and collection for an additional 18-months, Defendants once again denied Plaintiff's request for its statutory right to an independent review by the Appeals Office indicating that there was insufficient time remaining on the statutory period to assess and collect taxes. In addition to failing to abide by the legal requirements imposed under Code § 7305(e)(4), by denying Plaintiff's right to appeal its case in the manner provided by Congress, Defendants further violated the law in its actions denying Plaintiff the administrative review requested.

3. Pursuant to Code § 7803(e)(5)(C), Defendants are required to “prescribe procedures for protesting to the Commissioner of Internal Revenue a denial” of a request for review by the Appeals Office. In more than a year, the Defendants have made no progress towards the accomplishment of that requirement. Additionally, pursuant to Code § 7803(e)(5)(A), the letter denying an administrative review by the Appeals Office must: (i) provide a detailed description of the basis for the denial, and (ii) describe the procedures for protesting the decision to deny the request. By refusing to provide Plaintiff with a review of its case by the Appeals Office — even after Plaintiff signed a Form 872-P extending the statutory period for assessment and collection until September 30, 2021 — Defendants violated the legal requirements of Code § 7803(e). The Defendants compounded their first violation of the law by violating Code § 7803(e)(5)(A)(ii) in the two letters informing Plaintiff of Defendants' denial, neither of which informed Plaintiff of its right to protest Defendants' denial or of the procedures for making such a protest.

4. Contrary to the Defendants' actions giving rise to this complaint, it is the Plaintiff's belief and understanding that, “tax officials and taxpayers alike are under the law, not above it.” Brafman v. U.S., 384 F.2d 863 at 866 (1967). However, in direct violation of clear requirements of Code § 7803(e)(4), Defendants have repeatedly abused their administrative authority and broken the law, by refusing to grant Plaintiff its statutorily created right to have its case reviewed by the IRS Independent Appeals Office and by refusing to inform Plaintiff of its rights regarding the protest of such a denial.

5. Defendants' failure to comport its actions with the legal requirements imposed upon the IRS by Code § 7803(e)(4) will result in the violation and denial of Plaintiff's constitutionally protected right to due process. By depriving Plaintiff of its statutorily mandated right to a hearing with the Appeals Office now, the Defendants will be able to immediately assess a tax forever depriving the Plaintiff of its right to an independent and impartial preassessment review of its administrative case outside of litigation — it is a harm that cannot be fixed, resulting from an abuse that cannot be remedied.

6. Defendants' blatant disregard for the legal requirements of Code § 7803(e)(4) is not only an abuse of the Plaintiff's rights as a taxpayer, but such abuses are the very reason that the law exists. As noted in the legislative history to the Taxpayer First Act of 2019, Congress enacted Code § 7803(e) — which creates an “Independent” Appeals Office and generally provides all taxpayers with the right to an administrative appeal with the Independent Appeals Office — for the very purpose of reigning in IRS abuses of taxpayer rights and to protect the constitutionally guaranteed due process rights of taxpayers subject to IRS enforcement actions. As noted by the Committee on Ways and Means, such legislation was necessary because oversight of Defendants activities revealed that IRS enforcement activities exceeded Congressional intent.

7. By the statutory requirements of Code § 7803(e). Congress acted to create a law intending to provide taxpayers with a right to meet with an Independent Appeals Office in order to protect taxpayers from Defendants' abuses and denial of taxpayer's constitutionally mandated due process rights. However, Defendants' actions, and repeated violations of multiple provisions of Code § 7803(e), demonstrates its low regard for the law and its complete disregard for the constitutional rights of taxpayers. Unless the Court grants the injunctive and mandamus relief which Plaintiff requests, Defendant will continue to disregard, circumvent, and undermine the laws contrary to the clear intent of Congress and at the expense of the rights of all taxpayers.

JURISDICTION AND VENUE

8. This Court has subject matter jurisdiction over this action by virtue of 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 2201 et seq. (Declaratory Judgement Act); and 28 U.S.C. §1361 (mandamus relief).

9. The Court's jurisdiction to grant the requested relief is not barred by either the Anti-Injunction Act (“AIA”) provided in Code § 7421 — which generally prohibits “suits for restraining the assessment or collection of any tax — or the Declaratory Judgement Act (“DJA”) — which allows individuals to obtain declaratory relief in cases of actual controversy “except with respect to Federal taxes.” In the present case, the injunctive relief sought by the Plaintiff is not prohibited by the AIA because the Plaintiff is not attempting to restrain the assessment or collection of any tax; rather, the Plaintiff is merely asking this Court to enjoin the Defendants from violation Plaintiff's statutory and constitutional rights to due process by requiring Defendants provide Plaintiff with the pre-assessment administrative process and remedies that the Defendants are required to generally provide to all taxpayers pursuant to Code § 7803(e)(4).

10. Prior to filing this Complaint, Plaintiff filed a signed a 872-P, Consent to Extend the Time to Assess Tax Attributable to Partnership Items, with the Defendants, thereby providing Defendants with ample time to provide Plaintiff with the procedural process required by 26 U.S.C. § 7803(e)(4) while protecting and preserving Defendants' right and ability to assess and collect any amount of Plaintiff's tax deficiency, if any, upon competition of the administrative processes required by law. As such, granting the limited relief sought by this complaint will not stop the Defendant from assessing or collecting any potential tax deficiency; rather, the grant of such relief will merely inhibit the Defendants' ability to assess and collect any potential deficiency by requiring Defendants to provide the Plaintiff with the legally required procedure created for the sole purpose of protecting taxpayers such as Plaintiff from Defendants' abuse of taxpayer rights.

11. In Direct Marketing Association v. Brohl, the Supreme Court explained that a determination as to whether a suit is an attempt “restrain” the assessment or collection of a tax looks to “whether the relief to some degree stops 'assessment, levy, or collection,' not whether it merely inhibits them.” Direct Marketing Association v. Brohl, 135 S.Ct. 1124, 1133 (2015). The Court went onto explain that “a suit cannot be understood to 'restrain' the 'assessment, levy or collection' of a state tax if it merely inhibits those activities.”¹ Id. At 1129. Therefore, as the narrow relief sought by this Complaint merely inhibits the Defendants' ability to assess or collect any potential tax deficiency by requiring Defendant to first comply with the laws protecting taxpayers from abuse by Defendants, such relief cannot be an attempt to “restrain” the assessment or collection of any tax for purpose of the AIA. Any other finding would render the Congressionally mandated taxpayer protections meaningless and unenforceable.

12. As the relief sought by the Plaintiff is not prohibited by the AIA, it cannot be prohibited by the DJA, which courts have determined to be coextensive and coterminous with the AIA. As such an action allowed under one statute will not be barred by the other statute. See, e.g., Cohen v. United States, 650 F.3d 717, 727-31 (D.C. Cir. 2011) (en banc); Mobile Republican Assembly v. United States of America, 353 F.3d 1357, 1362 n.6 (11th Cir. 2003)(noting that “the federal tax exception to the Declaratory Judgment Act is at least as broad as the prohibition of the Anti-Injunction Act”); and Bufkin v. US, 111 AFTR 2d 2013-2349, 2013-2350 (11th Cir. 2013)(explaining that the Eleventh Circuit has “noted that 'the federal tax exception to the Declaratory Judgment Act is at least as broad as the prohibition of the Anti-Injunction Act'”). Not only would a coterminous interpretation of the DJA and AIA in this case be consistent with precedential authorities, but, as explained by the Seventh Circuit in Tomlinson v. Smith, “[i]t is unreasonable to think that a court with authority to issue a restraining order is without power to declare the rights of the parties in connection therewith. In other words, it is our view that the language which excepts federal taxes from the Declaratory Judgment Act is co-extensive with that which precludes the maintenance of a suit for the purpose of restraining assessment or collection of a tax.” Tomlinson v. Smith, 128 F.2d 808, 811 (7th Cir. 1942).

13. Venue is proper in this district because Defendants are acting in their official capacity as agents of the United States, Plaintiff's main office and tax managing partner is located in this district, and “a substantial part of the events or omissions giving rise to the claim” occurred at the offices of the Internal Revenue Service located at 2888 Woodcock Blvd. Atlanta, GA 30341 in the Northern District of Georgia. 28 U.S.C. § 1391.

14. Jurisdiction and venue are proper in this court.

PARTIES:

15. Plaintiff, Hancock County Land Acquisitions, LLC, is a Limited Liability Company under the laws of the State of Mississippi. Plaintiff did not make the election to be taxed as a Corporation, as such, for purposes of federal income taxes, Plaintiff is taxed as a partnership under the Code. Plaintiff's principal office, and that of its tax matters partner, is located at 210 East Second Avenue, Suite 105, Rome, Georgia 30161.

16. The United States of America. The United States of America is a proper defendant because the IRS is an agency of the United States government.

17. The IRS is the chief tax collection agency of the United States and is a division of the United States Department of the Treasury. It is the Executive Branch Agency charged with administering the Tax laws enacted by Congress. The IRS has locations in Washington, DC as well as many other locations including 2888 Woodcock Blvd. in Atlanta, Georgia.

18. IRS Manager Catherine C. Brooks is an agent of the IRS serving as a Manger in the Large Business and International Division of the IRS. Catherine Brooks' office address is 2888 Woodcock Blvd., Atlanta, Georgia. At all times material to this complaint, Catherine Brooks was acting under the color of law and training and supervision of the IRS and the U.S. Department of the Treasury, engaged in the administering the policies, practices, customs, and regulations of the IRS including but not limited to those policies, practices, customs, and regulations directly related to the Defendants' examination of the Plaintiff's 2016 Federal tax returns for the tax year ended December 31, 2016. Catherine Brooks may be served at her business address 2888 Woodcock Blvd., Atlanta, GA 30341.

19. Agent Stafford is an agent of the IRS with the title Internal Revenue Agent. Agent Stafford's office address is 2888 Woodcock Blvd., Atlanta, Georgia. At all times material to this complaint, Agent Stafford was acting under the color of law, training and supervision of the IRS and the U.S. Department of the Treasury, engaged in the administering the policies, practices, customs, and regulations of the IRS including but not limited to those policies, practices, customs, and regulations directly related to the Defendants' examination of the Plaintiff's 2016 Federal tax returns for the tax year ended December 31, 2016. Agent Stafford may be served at her business address 2888 Woodcock Blvd., Atlanta, GA 30341.

20. Plaintiff brings this action against each defendant in both their official and individual capacities.

21. At all times relevant to this civil action, Defendants acted toward Plaintiffs under color of the statutes, rules, customs, and usages of the United States of America, the U.S. Department of the Treasury, and the IRS.

22. Said customs, policies and practices of Defendant IRS include systemic deficiencies in its enforcement practices arising from the deliberate indifference of the IRS and its policymakers, in failing to develop and implement appropriate customs, policies, and practices, and thus were the moving force behind the violations of law and the abuse of taxpayer rights complained of by the Plaintiff.

23. Said customs, policies, practices, and systemic deficiencies include but are not limited to the following:

FACTS:

24. Code § 7803(e)(4), added to the Code as part of H.R. 3151 — the Taxpayer First Act of 2019 (“Taxpayer First Act”), creates a taxpayer “Right of Appeal” providing that the Defendants' Independent Appeals process described in Code § 7803(e)(3) “shall be generally available to all taxpayers.”

25. In the legislative history, prior to the addition of Code § 7803(e)(4), Congress noted that “the Code does not currently require that all taxpayers be provided an opportunity to contest an administrative decision in Appeals.” U.S. House, Committee on Ways and Means, Taxpayer First Act of 2019 at 29 (April 9, 2019).

26. Recognizing the lack of a taxpayer right to an administrative appeal within the IRS, Congress added Code § 7809(e)(4) explaining that “[t]he provision seeks to ensure that generally all taxpayers are able to access the administrative review process, allowing for their cases to be heard by an independent decision maker.” U.S. Senate, Committee on Finance, Legislative Summary of Taxpayer First Act of 2019 at 1.

27. Not only does the legislative history of Code §7803(e)(4) clearly demonstrate Congressional understanding that the addition of that section would require Defendants to generally provide all taxpayers, including Plaintiff, with an administrative review by the Appeals Office, but the legislative history also explained why Congress believed that it was necessary to add such a requirement to the Code. In the Report by the Committee on Ways and Means, it was noted that, “[t]he work of the Ways and Means Subcommittee on Oversight ('Oversight Subcommittee') revealed areas where the IRS's use of enforcement tools exceeded Congressional intent.” U.S. House, Committee on Ways and Means, Taxpayer First Act of 2019 at 26 (April 9, 2019).

28. Concerns about the IRS abuse of taxpayer rights in enforcement were further discussed in the House of Representative debate on this provision of the Taxpayer First Act during which the act's co-sponsor Rep. Kevin Brady of Texas explained that: “The Constitution guarantees Americans the right to due process and protection from unreasonable search and seizures. In the hearings led by Chairman Lewis and others, we have heard stories from across the country of the IRS abusing these rights. Under this bill, that stops . . . the Taxpayer First Act recasts the IRS as our tax administrator rather than simply an enforcement agency. We will better protect taxpayers from enforcement abuses by creating an impartial review of disputes they have with the IRS.” 165 Cong. Rec. H4363 (daily ed. June 10, 2019)(statement of Rep. Brady).

29. By a Deed of Conservation Easement recorded on August 3, 2016, Plaintiff donated a conservation easement on property that it owned to a qualified tax-exempt public charity pursuant to Code § 170(h).

30. At the close of its tax year ended December 31, 2016, Plaintiff filed a Form 1065, U.S. Return of Partnership Income, on which it recognized a charitable deduction resulting from the donation of a conservation easement on its property.

31. By a letter dated July 17, 2018, Defendants informed Plaintiff that the Form 1065 filed for its tax period ended December 31, 2016 had been selected for examination.

32. After commencing its examination of Plaintiff's return, Defendants determined that the statutory period for assessment and collection of taxes under Code § 6501 was set to expire on September 15, 2020, which Defendants deemed to be an insufficient amount of time to complete the examination.

33. On or about May 29, 2019, the IRS through its employee, Defendant Agent Stafford, requested that Plaintiff extend the statutory period for the assessment and collection of taxes for an additional 12 months, until September 30, 2021, to provide the IRS with sufficient time to develop and review all facts pertinent to Plaintiff's charitable donation.

34. In June 2019, due to concerns about the duration and expense of an examination requiring the extension of the statute of limitations until September 30, 2021, Plaintiff did not see the benefit of extending the statute of limitations at that time.

35. By a letter dated June 10, 2019, Plaintiff's legal counsel informed Defendants that: (a) Plaintiff was cooperating in the IRS examination in good faith; (b) Plaintiff was committed to participating in all administrative proceedings in a good faith effort to resolve any issues identified by the IRS Examination; and (c) Plaintiff was willing to extend the statutory period for the assessment and collection of taxes if such an extension were solely for the purpose of allowing the case to be reviewed by the IRS Appeals Office.

36. By a fax dated August 12, 2019, Defendants sent Plaintiff's legal counsel a letter dated both June 12, 2019 and August 10, 2019, informing Plaintiff, without explanation or reference to any published guidance, that in order to be sent to the Appeals Office a case must have 20 months remaining on the statute of limitations when it is closed by the Examinations Division, and “[i]f the taxpayer does not agree to extend the statute, the case will be closed for issuance of the 'Final Partnership Administrative Assessment' (FPAA), which will preclude the taxpayer from going to Appeals.”

37. In April 2020, the Plaintiff, in discussions with its legal counsel, revisited the IRS request to extend the statutory period to assess and collect, and determined that, as the Code § 6501 statute of limitations was set to expire within six-months on September 15, 2020, there was insufficient time remaining on the statute of limitations to allow for the case to be reviewed by the IRS Appeals Division. Recognizing the significance and potential benefits of the post-examination review processes, Plaintiff decided to sign the Form 872-P previously issued by the Defendants extending the statutory period for the assessment and collection of taxes resulting from Plaintiffs' tax year ended December 31, 2016, until September 15, 2021.

38. On April 3, 2020, Plaintiff signed the Form 872-P as previously requested by the Defendants, and Plaintiff's legal counsel sent the Form 872-P, with an accompanying cover letter, to Defendants.

39. Plaintiffs decided sign the Form 872-P extending the statutory period for the assessment and collection of tax because it recognized the value and benefits of availing itself of the post-examination review processes, including the conference of right with the IRS independent Appeals Office, provided by the Code.

40. The letter sent by Plaintiff's legal counsel on April 3, 2020, explained that “we are taking the proactive step of enclosing as Exhibit 1 the executed Form 872-P extending the assessment-period by 18 months, until September 30, 2021. We request that you issue a Summary Report, Notice of Proposed Adjustments, Examination Report or the like, such that the Partnership can file a Protest Letter and address matters with the Appeals Office, before the IRS issues a notice of Final Partnership Administrative Adjustment ('FPAA”) and forces Tax Court litigation.”

41. The April 3, 2020 letter from Plaintiff's legal counsel acknowledged Defendant's 20-month requirement for allowing cases to be reviewed by the Appeals Office, a requirement that cannot be found in either the Code or the Treasury Regulations, and explained that “[i]f you need to issue a revised Form 872-P further extending the assessment-period for 2016 to give the Appeals Office sufficient time, the Partnership would be glad to execute it.” [Emphasis added].

42. Thus, Plaintiff signed the Form 872-P previously issued by Defendants in an effort to fully exercise its rights, as provided by the Code, while also protecting the Defendants' ability to assess and collect any potential tax deficiencies after providing the Plaintiff with the administrative due process Defendants are required to provide pursuant to Code § 7803(e)(4).

43. Almost a full month later, by a letter dated May 1, 2020, Defendants, through Agent Stafford, informed Plaintiff's legal counsel that it had received the letter offering to extend the statutory period for the assessment and collection of taxes.

44. Agent Stafford's May 1, 2020 letter explained that the Defendants would not accept the Plaintiff's signed Form 872-P because, in August 2019, Plaintiff's legal counsel verbally informed Agent Stafford that Plaintiff did not, at that time, intend to sign the Form 872-P sent by the IRS.

45. An additional concern raised in Agent Stafford's letter dated May 1, 2020, was that the extension provided in the Form 872-P which was provided by the Defendants only extended the statute of limitations for 18-months, which was insufficient for the IRS Appeals Office to accept a case.

46. Agent Stafford's concern that 18 months was an insufficient amount of time to transfer the case to the Appeals Office was unfounded and an unjustified reason to deny Plaintiff's statutory right to a review by the Appeals Office because:

47. By a letter dated April 29, 2020, two days before the letter in which Defendant refused to accept the signed Form 872-P that it had previously issued, Defendants, through Agent Stafford, informed Plaintiff's legal counsel that it had issued the summary report of the examination proposing certain adjustments to the Plaintiff's tax return, and due to the insufficient amount of time remaining on the statute of limitations, Defendants were not going to provide Plaintiff with the administrative review processes generally provided to taxpayers; rather, Defendants were going to process the case and issue the Final Partnership Administrative Adjustment (”FPAA”) notice based solely on Agent Stafford's proposed adjustments, thereby denying the Plaintiff of its right to have the Defendant's proposed determination reviewed by the Independent Appeals Office prior to litigation as provided in Code § 7803(e)(4).

48. The only reason provided in support of Defendant's unilateral decision to deny Plaintiff's its administrative rights to due process — which Defendants' are generally statutorily required to provide — was the claim that, absent a signed Form 872-P, the statute of limitations was set to expire on September 15, 2020.

49. However, Agent Stafford's letter dated May 1, 2020, confirms that on April 3, 2020, Defendants received the signed Form 872-P which had previously been requested.

50. Therefore, as of the date that Agent Stafford sent the April 29, 2020 letter, a signed Form 872-P was not absent; rather, Defendants had in their possession a signed Form 872-P which Defendants simply chose not to acknowledge or countersign.

51. Significantly, on April 29, 2020, the only reason the statutory period for assessment and collection would expire on September 15, 2020, and not September 30, 2021, was because the Defendant unilaterally decided not to countersign the signed Form 872-P that was, and currently is, in Defendants' possession.

52. Defendants, by undertaking the merely ministerial act of countersigning the Form 872-P signed by the Plaintiff, could have added an additional 12 months to the statute of limitations providing Defendants with:

53. While Defendants have consistently sought to undermine the legal requirements of Code § 7803(e)(4) by simply refusing to accept and countersign the Form 872-P signed by the Plaintiff and actually received by Defendants, Plaintiff has undertaken every action within its power and abilities to permit a review of its case by the Appeals Office, including:

54. Concerned about the Defendants' abuses of Plaintiff's rights to due process, Plaintiff's legal counsel sent Defendants a follow up letter, dated May 26, 2020, specifically requesting a closing conference for its case.

55. In response to the letter from Plaintiff's legal counsel, Defendants sent a letter dated June 4, 2020 — more than 60-days after actually receiving a signed Form 872-P from Plaintiff — denying Plaintiff's specific request for a closing conference, explaining that defendants “would not be conducting a closing conference because there was not enough time on the statute.”

56. Once again, Defendant Agent Stafford blamed the Plaintiff for the consequences Defendants' own decision to violate the law and abuse the Plaintiff's right to due process, explaining that “[b]ased on taxpayer's decision to not sign a statute extension, we proceeded with an expedited case closing and the work was complete.”

57. Once again, Defendant's statement clearly ignored the fact that:

58. Once again, Defendants' sole justification for its decision to deny the Plaintiff of the procedural review and appeals process that the Defendants are generally required to provide as a matter of law, was “taxpayer's decision to not sign a statute extension,” an untenable position undermined by the fact that the Plaintiff actually signed and submitted a Form 872-P “statute extension.”

59. Defendant's unilateral decision to violate the Plaintiff's right to due process by withholding the administrative review and appeals process provided by the Code and underlying Regulations is without any basis or justification; rather, it is merely an intentional and unnecessary abuse of taxpayer rights and one of many examples of the Defendants' failure to adhere to the Code, its own regulations, or the written directives of the executive office in its effort to eliminate the ability of syndicated entities to make qualified donations of conservation easements.

60. As Defendants have continually sought to undermine the Code, the only avenue available to Plaintiff to protect its rights to due process and avail itself of the administrative and procedural remedies provided by the Code is this suit seeking a declaration that the Defendants are subject to the laws that they are charged with enforcing.

CAUSES OF ACTION

COUNT ONE
(Administrative Procedure Act)

61. The allegations set forth hereinabove in Paragraphs 1 through 60 are restated as though fully set forth herein.

62. United States Statute 5 U.S.C § 702 provides a right of action to seek relief from the actions of government agencies by parties wronged by those agencies. The Statute reads in pertinent part as follows:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance.

63. The court may hold unlawful and set aside agency action that is found to be: “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A); “in excess of statutory jurisdiction, authority, or limitations or short of statutory right,” 5 U.S.C. § 706(2)(C); or “without observance of procedure requirement by law,” 56 U.S.C. § 706(2)(D).

64. As it is Defendants' usual course of business to accept and countersign all signed Forms 872-P which it previously issued to taxpayers, Defendants' refusal to acknowledge or accept the signed Form 872-P that it previously sent to Plaintiff — which Defendants actually received on April 3, 2019 — is an abuse of Defendants' discretion that arbitrarily treats Plaintiff differently from other similarly situated taxpayers who also signed Forms 872-P issued by Defendants.

65. Defendants' refusal to counter sign the Form 872-P received by Plaintiff on April 3, 2020, which extends Defendants statutory period to assess or collect taxes until September 30, 2021, as pretense for its refusal to provide Plaintiff with the administrative review procedures mandated by Code § 7803(e)(4) is an abuse of Defendants' discretion and is not in accordance with the law.

66. Defendants' arbitrary and anomalous treatment of Plaintiff cannot be used to circumvent the legal limitations on Defendants' ability to abuse taxpayer rights, and such arbitrary actions do not dissolve the legal requirements that Congress has imposed upon Defendants.

67. Defendants' refusal to comply with the legal requirements of Code §7803(e)(4) is an absolute abuse of the Defendants' discretion because, like taxpayers, Defendants are under the law, not above it.

COUNT TWO
(Mandamus Act)

68. The allegations set forth hereinabove in Paragraphs 1 through 60 are restated as though fully set forth herein.

69. In order to obtain mandamus relief, Plaintiff must demonstrate: (1) a clear right to the relief requested; (2) that Defendants had a duty to perform the Act in question; and (3) no other adequate remedy is available. Power v. Barnhardt, 292 F.3d 781 (D.C. Cir. 2002). Plaintiff has satisfied all of the criteria listed:

70. Plaintiff has participated in Defendants' examination of its tax year ended December 31, 2016, in good faith, and on April 3, 2020, Plaintiff voluntarily decided to protect the Defendants' rights to assess and collect any potential tax deficiencies by signing the Form 872-P extending the statutory period to assess and collect any potential tax deficiency until September 30, 2021.

71. In Response to Plaintiff's good faith effort to avail itself of its statutory right to an independent administrative review, Defendants:

WHEREFORE, Plaintiffs prays the following:

a) This Court provide declaratory relief by issuing a Declaratory Judgement that declares:

b) This Court issues an order providing mandamus and injunctive relief, which:

c) That the Plaintiffs be awarded attorney's fees and reasonable expenses of litigation;

d) That the Court grant Plaintiff such other, further and additional relief as the Court deems just and proper.

This is the 24^th day of July 2020.

Respectfully submitted,

S. Fenn Little, Jr.
Attorney for Plaintiffs
GA Bar Number: 454360

FENN LITTLE, ESQ.
CONSERVATION DEFENSE GROUP, INC.
3522 Ashford Dunwoody Rd. PMB 402
Brookhaven, GA 30319
Atlanta, GA 30309
Ph: 404-815-3100
Fax: 404-521-4029
fennlaw@fennlittle.com

Matthew T. Journy
Attorney for Plaintiffs
Not Licensed in GA
Pro Hac Vice being sought

LAW OFFICES OF JAMES WINGFIELD
210 Park Avenue, Suite 313
Worcester, MA 01609
Ph:774-312-7857
Fax:508-797-0201
mjourny@yahoo.com