United States of America v. Hymes et al

Filing 43

Order on Motion for Miscellaneous Relief, Order on Motion to Dismiss, Order on Motion to Dismiss/Lack of Jurisdiction, Order on Motion to Strike

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.

Case 3:05-cv-0123 RRB

DONALD L. HYMES; RITA M.
HYMES; AURORA TRUST, ZENA D.
HYMES AND CHARLA HYMES
TRUSTEES; SUNSHINE TRUST, RITA
M. HYMES, TRUSTEE; ZENA D.
HYMES; CHARLA HYMES; AND
FAIRBANKS NORTH STAR BOROUGH,

ORDER RE PENDING MOTIONS

Defendants.

Before this Court are Defendants Donald Louis Hymes, Rita
Marina Hymes, Sunshine Trust, Rita Marina Hymes, Trustee; Charla
Alethea Hymes, and Aurora Trust, Charla Hymes, Trustee, with nearly
identical motions to dismiss.1

The Government first moves to

strike Defendants Sunshine Trust and Aurora Trust’s motions to
dismiss because neither Charla Hymes nor Rita Hymes may represent

1

Clerk’s Docket Nos. 6, 7, 8, 9, 10.

ORDER RE PENDING MOTIONS - 1
3:05-CV-0123 RRB

a trust in federal court.2

Second, the Government opposes the

motions to dismiss as being without merit.3

The Court also has

before it the Government’s Supplemental Response and Hymes’ Motion
to Clarify.
The Court first considers the Government’s motion to
strike and agrees with the Government that the motions to dismiss
by Defendants Sunshine Trust and Aurora Trust should be stricken.
A

non-attorney

may

personal to her.4

represent

herself,

but

that

privilege

is

The non-attorney has no authority to appear as

an attorney for others than herself.5

Here, Charla Hymes and Rita

Hymes’ status toward the trusts is that of trustee.

There is no

evidence in the record that they are beneficiaries of the trust.
Thus, while they may each represent themselves individually, they
may not represent the trust pro se.
The Government argues that if the motion is stricken, the
Court should enter a default judgment against the two trusts.
However, rather than impose such a sanction, the Court will only
strike the motions to dismiss filed on behalf of the two trusts.

2

Clerk’s Docket No. 11

3

Clerk’s Docket No. 13.

4

C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697
(9th Cir. 1987).
5

Id.

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3:05-CV-0123 RRB

Second, the Court considers the arguments presented only
by Donald Hymes. First, he argues that, “The ‘taxes’ for the years
1989,

1990,

1991,

1992,

and

1993

limitations for collection purposes.”

are

past

the

statute

of

Hymes relies on 26 U.S.C. §

6501(a), which states that taxes “shall be assessed within three
years after the return was filed (whether or not such return was
filed on or after the date prescribed.”

However, 26 U.S.C. §

6501(b)(3) states that, “the execution of a return by the Secretary
pursuant to the authority conferred by such section shall not start
the

running

collection.”6

of

the

period

of

limitations

on

assessment

and

Here, the Internal Revenue Service (“IRS”) filed

substitutes for returns for Hymes, and Hymes did not file any
returns himself for the years at issue. Thus, § 6501(b)(3) applies
and the execution of the returns by the Secretary did not start the
running of the period of limitations. Therefore, the Government is
not barred by the statute of limitations from pursuing its action.
Donald Hymes also argues that the United States has no
taxing authority over the Defendants.7

This argument is without

merit.8

6

26 U.S.C. § 6501(b)(3).

7

Clerk’s Docket No. 6.

8

In re Becraft, 885 F.2d 547 (9th Cir. 1989).

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3:05-CV-0123 RRB

Third, all of the Defendants argue that the Court lacks
both personal and subject matter jurisdiction.

The Defendants

argue that the “United States of America has no constitutionally
granted powers” and that the “United States of America has alleged
no offense.”9

However, the United States of America does have

constitutionally-granted powers and has properly alleged offenses
against the Defendants. The Court does not recognize a distinction
between the “United States of America” and the “United States.”
Fourth, all of the Defendants argue that the Government
included innocent parties in its Complaint.10
are properly before the Court.

However, all parties

It is not enough for Defendants to

conclusorily state that there are no legal or justifiable causes to
include the various defendants in this action.
Fifth, all of the Defendants argue that their due process
rights are violated by the Government’s Complaint.11

However, the

Government is not required at this stage in the litigation to
submit all of its evidence or present sworn affidavits justifying
why

each

defendant

is

named

in

the

Complaint.

Thus,

the

Government’s failure to meet each of the Defendants’ demands is not
a violation of their due process rights.

9

Clerk’s Docket Nos. 6, 7, 8, 9, 10.

10

Id.

11

Id.

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3:05-CV-0123 RRB

Finally, all of the Defendants appear to argue that their
rights under the Fourth, Fifth, Sixth, Seventh and Ninth Amendments
were violated.12

However, they provide no support for their

arguments and the Court is also not aware of any support.
For the reasons stated herein, Defendants’ motions are
DENIED (Clerk’s Docket No.s 6, 7, 8, 9, 10) and the Government’s
Motion to Strike (Clerk’s Docket No. 11) is GRANTED. Hymes’ Motion
to Clarify is DENIED because it concerns the tax forms applicable
to him and is without relevance to the Motions to Dismiss or Motion
to Strike.
ENTERED this 12th day of January, 2006.
/s/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

12

Id.

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