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Misc RM 18 Misc reference material
Reference Material - For Information Only!
Over time we have collected a lot of reference material. We figured it would be better to share with all rather than just delete it. If you want it, keep it, otherwise just delete it. Due to the volume it will take more than one mailing.
Headings Legal Names
***** Legal Names. "Complaint must identify at least one plaintiff by true name; otherwise no action has been commence." Roe v New York (1970, SD NY) 49 FRD 279, 14 FR Serv 2d 437, 8 ALR Fed 670.
The reasoning behind a true name is that the United States cannot pick up a pencil or sneeze. The United States cannot therefore write a complaint. All activities carried on by a governmental agency is carried out by its agents and actors.
The definition of a legal name in Black's Law Dictionary is: "A person's full name as recognized in law, consisting of a first name (usu. given at birth or at a baptism or christening) and a last name (usu. a family name).
***** Right To Counsel and Court Unable To Proceed.
JOHNSON v. ZERBST, 304 U.S. 458 (1938): "When this [304 U.S. 458, 468] right is properly waived, the assistance of counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court's jurisdiction at the hearing of trial may be lost 'in the course of the proceedings' due to failure to complete the court-as the Sixth Amendment requires-by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void."
"He requires the guiding hand of counsel at every step in the proceedings against him. The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." [304 U.S. 458, 464]
***** Supremacy of Supreme Court decisions.
MUGLER v. KANSAS , 123 U.S. 623 (1887): "But, as stated by the present learned judge for the Eighth circuit, 'when a proposition has once been decided by the supreme court, it can no longer be said that in it there still remains a federal question.' State v. Bradley, 26 Fed. Rep. 289."
***** Citizen's rights.
HALE v. HENKEL. 201 U.S. 43 at 89 (1906): "The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing therefrom, beyond the protection of his life and property.
"His rights are such as existed by the Law of the Land (Common Law) long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution.
"He owes nothing to the public so long as he does not trespass upon their rights."
***** Assessments, Signature, and Certification. Internal Revenue Manual 3(17)(63)(14).1: Account 6110 Tax Assessments (2) All tax assessments must be recorded on Form 23C Assessment Certificate. The Assessment Certificate must be signed by the Assessment Officer and dated . The Assessment Certificate is the legal document that permits collection activity… I nternal Revenue Manual 3(17)(46)2.3: Certification (1) All assessments must be certified by signature of an authorized official on Form 23-C, Assessment Certificate. A signed Form 23C authorizes issuance of notices and other collection action … (2) Some assessments are prescribed for expeditious action as and be certified on a daily basis. These assessments will require immediate preparation of Form 23C from RACS… Form 23C is described in Document 7130, IRS Printed Product Catalog as: 23C - Assessment Certificate-Summary Record of Assessments Form 23C is used to official assess tax liabilities . The completed form is retained in the Service Center case file as a legal document to support the assessment made against the taxpayer. This status notice is reissued to update the status notice file. TR:R:A Internal Use CURLEY v. U.S., Cite as 791 F. Supp 52 ( E.D.N.Y. 1992): "… [5] Plaintiff relies heavily on Brafman v. United States, 384 F.2d 863 (5th Cir. 1967), where an assessment was invalidated due to the lack of a signature on the 23C Form. This defect, however, was a significant violation of the regulation…" "…A signature requirement protects the taxpayer by ensuring that a responsible officer has approved the assessment…" 764 FEDERAL SUPPLEMENT Page 315 BREWER v. U.S. , Cite as 764 F.Supp. 309 (S.D.N.Y. 1991) "…However, there is no indication in the record before us that the "Summary Report of Assessments", known as Form 23C, was completed and signed by the assessment officer as required by 26 CFR § 301.6203-1.3 Nor do the Certificates of Assessments and Payments contain 23C dates which would allow us to conclude that a Form 23C form was signed on that date. See United States v. Dixon, 672 F. Supp. 503, 505-506 (M.D.Ala.1987 ). Thus we find that the plaintiff has raised a factual question concerning whether IRS procedures were followed in making the assessments…"
"This regulation provides, in relevant part, that "[t]he assessment shall be made by an assessment officer signing the summary record of assessment…"
Citing Huff v. United States, 10 F.3d 1440 (9th Cir. 1993), the court explained that Form 4340 Certificates of Assessment and Payment, together with Form 23C Summary Records of Assessment, demonstrate that a valid assessment was made.
***** Immunity. "The rule of governmental immunity as to all political subdivisions of government is hereby abrogated as it has heretofore been abrogated as to municipal corporations, i.e., cities. No longer is the defense of governmental immunity for tort liability available, irrespective of whether the involved political subdivision is functioning 'governmentally' or 'proprietarily'." MYERS v GENESSEE COUNTY , 375 Mich 1, 1965.
"The principal of sovereign immunity is not one which allows the sovereign to continue to inflict injury.... [sovereign immunity] does not give the sovereign the right to totally disregard the effect of it¹s actions upon the public."² Shaw v. Salt Lake County , 224 P2d 1037.
"Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue." Arthur v. Fry, 300 F.Supp. 622 (1960).
"The general rule is that a qualified immunity defense fails once a plaintiff has alleged that defendants have violated the plaintiff's clearly established rights. Occasionally, however, objectively "extraordinary circumstances" are present which combine to justify a grant of immunity nonetheless." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
*On Our Adversarial System; Mack vs. City of Detroit, Chief Justice Cavanagh, No. 118468, 2002. "The adversarial system ensures the best presentation of arguments and theories because each party is motivated to succeed. Moreover, the adversarial system attempts to ensure that an active judge refrain from allowing a preliminary understanding of the issues to improperly influence the final decision. This allows the judiciary to keep an open mind until the proofs and arguments have been adequately submitted. In spite of these underlying concerns, the majority today claims that the benefits of full briefing are simply a formality that can be discarded without care. The majority fails to comprehend how the skilled advocates in this case could have added anything insightful in the debate over the proper interpretation of a century's worth of precedent. Whatever its motivation, the majority undermines the foundations of our adversarial system."
***** Property Rights. "Rights of property cannot be so arbitrarily destroyed or injured. Yates v. Milwaukee , 10 Wall. 497, 504, 505; Hutton v. City of Comden, 39 N. J. Law, 122, 129, 130; Cooley, Const. Lim. (5th Ed.) 110, and notes, 446; Lowry v. Rainwater, 70 Mo. 152; Jeck v. Anderson, 57 Cal. 251. Such a legislative determination would also be void, because, where the fact of injury to public health or morals did not exist, as here, it would be a violation of the absolute right of the citizen to follow such pursuit as he sees fit, provided it be not in fact 'injurious to the community.' People v. Marx, 99 N. Y. 386, 2 N. E. Rep. 29, and cases cited. Such legislation is unconstitutional." Quintini v. City of Bay St. Louis, 1 South. Rep. 625, 628.
"The federal Constitution and laws passed within its authority are by the express terms of that instrument made the supreme law of the land. The Fourteenth Amendment protects life, liberty, and property from invasion by the states without due process of law. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property." Holden v. Hardy, 169 U.S. 366, 391 , 18 S. Sup. Ct. 383.
"Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Blackstone's Commentaries (Cooley's Ed.) 127." Buchanan v. Warley, 245 U.S. 60, 74
MCL 600.2907(a) concerns the liability of a person who encumbers an owner's property.
***** Unconstitutional Court Rule.
Rule 28A(i) expands the judicial power beyond the limits set by article III by allowing us complete discretion to determine which judicial decisions will bind us and which will not. Insofar as it limits the precedential effect of our prior decisions, the Rule is therefore unconstitutional. Anastasoff v. United States of America 223 F.3d 898 (8 th Cir. 2000).
***** Suing Judges. U.S. Supreme Court PACIFIC INS. CO. v. SOULE, 74 U.S. 433 (1868) 74 U.S. 433 (Wall.) PACIFIC INSURANCE COMPANY v. SOULE. December Term, 1868
[74 U.S. 433 , 434] ON certificate of division from the Circuit Court for California. The Constitution of the United States1 ordains thus: 'Direct taxes shall be apportioned among the several States which may be included within the Union, according to their respective numbers.'
***** Suing Judges for lack of subject matter jurisdiction. "An exception to the rule of judicial immunity exists which is founded on a distinction between excess of jurisdiction and the absence of all jurisdiction ... where an act is done in the clear absence of all jurisdiction and this is known to the judge there is no immunity. Johnson v. MacCoy, 278 F2d 37 (9th Cir., 1960); Kenney V. Fox, 232 F 2d 288 ..." Rhodes v. Houston; 202 Fed Supp. 624
***** Wage Seizures U.S. Supreme Court SNIADACH v. FAMILY FINANCE CORP., 395 U.S. 337 (1969) SNIADACH v. FAMILY FINANCE CORP. OF BAY VIEW ET AL. On the matter of garnishment of wages before a court judgment is rendered: SNIADACH v. FAMILY FINANCE CORP., 395 U.S. 337 (1969): "Held: Wisconsin's prejudgment garnishment of wages procedure, with its obvious taking of property without notice and prior hearing, violates the fundamental principles of procedural due process. Pp. 339-342." This holding should be added to all administrative pleadings to the company or bank. The Court goes on to say, "The idea of wage garnishment in advance of judgment, of trustee process, of wage attachment, or whatever it is called is a most inhuman doctrine. It compels the wage earner, trying to keep his family together, to be driven below the poverty level." "The result is that a prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning [395 U.S. 337, 342] family to the wall. 9 Where the taking of one's property is so obvious, it needs no extended argument to conclude that absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works, 237 U.S. 413, 423 ) this prejudgment garnishment procedure violates the fundamental principles of due process." "Reversed." FUENTES v. SHEVIN, 407 U.S. 67 (1972): Held: "1. The Florida and Pennsylvania replevin provisions are invalid under the Fourteenth Amendment since they work a deprivation of property without due process of law by denying the right to a [407 U.S. 67, 68] prior opportunity to be heard before chattels are taken from the possessor. Pp. 80-93. (a) Procedural due process in the context of these cases requires an opportunity for a hearing before the State authorizes its agents to seize property in the possession of a person upon the application of another, and the minimal deterrent effect of the bond requirement against unfounded applications for a writ constitutes no substitute for a pre-seizure hearing. Pp. 80-84. (b) From the standpoint of the application of the Due Process Clause it is immaterial that the deprivation may be temporary and nonfinal during the three-day post-seizure period. Pp. 84-86."
"Neither the history of the common law and the laws in several states prior to the adoption of the Bill of Rights, nor the case law since that time, justifies creation of a broad exception to the warrant requirement for intrusions in furtherance of tax enforcement ." G. M. Leasing Corp. v. U. S., U.S.Utah 1977, 97 S.Ct. 619, 429 U.S. 338, 50 L.Ed.2d 530, on remand 560 F.2d 1011.
***** Levy Before Due Process. COMMISSIONER v. SHAPIRO, 424 U.S. 614 (1976): "Normally, the Internal Revenue Service may not "assess" a tax or collect it, by levying on or otherwise seizing a taxpayer's assets, until the taxpayer has had an opportunity to exhaust his administrative remedies, which include an opportunity to litigate his tax liability [424 U.S. 614, 617] fully in the Tax Court" (Note: Here the US Supreme Court refers to TAX COURT as an administrative body performing an administrative hearing. You also have other administrative remedies and Judicial remedy in U.S. District Court.)
***** FORM 668-B, 668-W. An important point concerning notices of levy is that a notice of levy is not a levy; the notice of levy is simply a notice, nothing more. The following cite clarifies the matter: "Under the 1939 Code, effective with respect to distraint and seizure and sale actions prior to January 1, 1955, levy or distraint on personal or real property in the possession of a taxpayer was authorized by a signed Warrant for Distraint, Form 69, which commanded the collection officer to take the necessary distraint action. Under the 1954 Code, effective with respect to all collection actions after December 31, 1954, the levy and distraint action will be authorized by a new form, Levy, Form 668-B, January 1955.
***** INTERPRETATION OF THE LAW.
***** ALTERING A W-4. (Referring to the W-4 form) "The employer is not authorized to alter the form or to dishonor the employee's claim. The certificate goes into effect automatically in accordance with certain standards enumerated in section 3402 (f)(3)". United States v. Malinowski, 347 F. Supp. 347 at 352 (1972). (Note: 3402 (f)(3) specifies when the certificate takes effect. In general shall take effect on first payroll period.) Internal Revenue manual 5.14.10.2 (03-30-2002)
"any officer, agent, or receiver of such employer, who shall require any employee, or any person seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, …or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee . . . is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof . . . shall be punished for each offense by a fine…". COPPAGE v. STATE OF KANSAS, 236 U.S. 1 (1915). "The court held it unconstitutional, saying: 'The right to follow any lawful vocation and to make contracts is as completely within the protection of the Constitution as the right to hold property free from unwarranted seizure, or the liberty to go when and where one will. One of the ways of obtaining property is by contract. The right, therefore, to contract cannot be infringed by the legislature without violating the letter and spirit of the Constitution. Every citizen is protected in his right to work where and for whom he will. He may select not only his employer, but also his associates." COPPAGE v. STATE OF KANSAS, 236 U.S. 1 (1915).
***** LABOR AS PROPERTY. "The property that every man has is his personal labor, as it is the original foundation of all other property so it is the most sacred and inviolable…to hinder his employing [it]…in what manner he thinks proper, without injury to his neighbor, is a plain violation of the most sacred property". Butcher's Union Co. v. Cresent City Co., 111 US 746. "Included in the right of personal liberty…is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money and other forms of property". Coppage v. Kansas, 236 US 1 "A state may not… impose a charge for the enjoyment of a right by the Federal constitution." Murdock v. Pennsylvania, 319 US 105, at 113 (1943). Taxation Key, West 53 – "The legislature cannot name something to be a taxable privilege unless it is first a privilege." Taxation Key, West 933 – "The Right to receive income or earnings is a right belonging to every person and realization and receipts of income is therefore not a "privilege that can be taxed".
***** LIABILITY FOR TAX.
"The taxpayer must be liable for the tax. Tax liability is a condition precedent to the demand. Merely demanding payment, even repeatedly, does not cause liability". Boathe v. Terry , 713 F. 2d 1405, at 1414 (1983).
"The revenue laws are a code or system in regulation of tax assessment and collection . They relate to taxpayers, and not to nontaxpayers. The latter are without their scope. No procedure is prescribed for nontaxpayers, and no attempt is made to annul any of their rights and remedies in due course of law . With them [nontaxpayers] Congress does not assume to deal, and they are neither of the subject nor of the object of the revenue laws". [emphasis added] Economy Plumbing and Heating Co. v. United States , 470 F. 2d 585 (1972)
***** REQUIRING SIGNATURES
Independent School District #639, Vesta v. Independent School District #893, Echo, 160 N.W.2d 686 (Minn. 1968): "To allow one to take official action simply by giving oral approval to a letter which does not recite the action and which does not go out under one's name is to extend permissible delegation beyond reasonable bounds," 160 NW 2d, at 689.
"…A signature requirement protects the taxpayer by ensuring that a responsible officer has approved the assessment…", CURLEY v. U.S., Cite as 791 F. Supp 52 (E.D.N.Y. 1992)
***** AGENT'S REFUSAL TO RESPOND "Silence can be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading. . . We cannot condone this shocking behavior by the IRS. Our revenue system is based on the good faith of the taxpayer and the taxpayers should be able to expect the same from the government in its enforcement and collection activities." U.S. v. Tweel , 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen, 64 A. 932 .
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