From the May 2002 Idaho Observer:

Schiff wants Nevada court to reconsider bank case dismissal

Tax honesty activist claims decision was contrary to state, federal law

LAS VEGAS -- One of the nation's most tireless tax honesty activists filed a Motion to Reconsider in Nevada District Court May 6, 2002.

Irwin Schiff's motion is in response to the court's April 24 dismissal of the civil action he filed against the Bank of America for turning his money over to IRS Agent James Gritis without a properly constructed notice of levy, without a court order, without a notice of seizure and without a writ of garnishment -- as required by both state and federal law.

In essence, Gritis told the bank to hand over Schiff's money and the bank complied.

Schiff sued the Bank of America for treble damages for allowing the IRS to remove $8,000 from his bank account last year. Much to the surprise of the Court, Schiff was able to demonstrate that federal law does not give the IRS authority to seize property in lieu of payment for income taxes (The Idaho Observer, January, 2002).

District Judge Earl denied the bank's motion to dismiss January 3, 2002, but ruled to dismiss in late April.

The pro se Schiff's 15-page memorandum in support of his Motion to Reconsider is a rather brilliant and entertaining recounting of events through the eyes of previously litigated lower and Supreme Court rulings and state and federal law. Schiff argued that the Court must set aside the Order of April 24 which dismissed the case, “...since the Court's decision is contrary to all applicable law (both Federal and State), the procedural provisions of Rule 56, and the facts that have already been established in this case. In dismissing plaintiff's lawsuit, this Court has illegally resolved what was a contested issue of fact....in favor of Defendant -- even though plaintiff has already proven that fact in the course of this litigation.”

In deposition, Gritis could not prove that he has enforcement authority as an IRS agent. He did, however, demonstrate that he had a “non-enforcement pocket commission.” Schiff stated that the Court is fully aware that Gritis had no enforcement authority and, therefore, he, not the bank was entitled to summary judgment. “Therefore, a more egregious ruling can hardly be imagined,” Schiff told the Court.

Rule 56

Rule 56(c) in the Nevada Rules of Civil Procedure state that a case will proceed to judgment, “...if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

“It is obvious that there are material facts in dispute and I have not yet had the opportunity to depose the Defendant or get responses from interrogatories. There is no way that the Court can justify dismissing this case,” Schiff explained.

Schiff also reminded the Court that his action apparently struck a nerve at the bank because shortly after he filed his lawsuit in this matter, the bank changed the language contained in the deposit agreement. The new agreement to be signed by all Bank of America depositors precludes them from suing the bank or being party to a class action for giving their money to a third party. It also says, “we may take one or more of these actions without being liable to you.”

In other words, the bank can take the money from your account for any reason and you have agreed that it is not liable and you cannot sue them for taking it. Schiff believes that this action gives him the right to depose bank officials to find out what prompted them to so drastically alter bank policy.

26 USC Section 6332

The bank's defense of its actions in this matter may make depositors a little nervous about keeping their life savings in a Bank of America vault. It argued that it was required to let the IRS take Schiff's money.

During oral argument March 26, 2002, attorneys for the Bank of America stated, “If it turns out that the agent who sent the notice of levy didn't have the authority or exceeded his authority, or is a secretary or a janitor or whatever, that's between Mr. Schiff and the IRS.”

“First of all, 6332 is captioned, 'Surrender of property subject to levy.' All Gritis had was a non-enforcement pocket commission and an improperly constructed notice of levy. My money was not subject to levy and, therefore, the bank has no defense of its actions under section 6332,” Schiff said.

After making several points that are flawlessly logical, founded in law and court precedent as well as supported in facts, Schiff closed by stating, “...if there was ever a court ruling that was more egregious with respect to the law and the facts, the public will be hard pressed to find it. Therefore, this Court is moved to reconsider and reverse its instant order and let this lawsuit proceed to trial, as the law, facts and all rules of civil procedure require.”

Schiff is the author of several books on the income tax which can be obtained at Freedom Books, (702) 385-6920 or by visiting his website at www.paynoincometax.com