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Updated Info: In Misc RM 13 Misc reference material
Please remove the false information!
Note: Penhallow v. Doane's Administraters (3
U.S. 54; 1 L.Ed. 57; 3 Dall. 54),
appears to be a Hoax
LTM – Texas : Yes I have read the Penhallow case and it is not as it was expressed.
No where in the case was that quote to be found. We have located the source of the information.
http://wtpfit.freeservers.com Start October 2005 – Current Website
http://wtpcc.freeservers.com 2005 to October 2005
http://wtplc.freeservers.com
Years 2001 - 2004
http://micromann.freeservers.com Original Website
http://trcp.freeservers.com Texas Rules of Civil Procedure - TRCP
http://www.freewebs.com/wtpfit/ Clerks Duties
Misc RM 19 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
Vagueness Of Statute
Requirement Of Assessment, A Return, And Payment By Stamp (Excise Tax)
6331 Levy; Purpose
The Purpose Of IRC Section 6321
Distraint
IRS As Private Corporation
Burden Placed On Persons Dealing With Agent
Habitude Of Malfeasance
Subpoena Powers Of Federal Agents
OMB Number Requirement
Knowledge
Collection Procedures, Quotes From Internal Revenue Manual
The Definition Of Excise Taxes
Subtitle A From Disclosure Office
Suing Federal Agents
Immunity Of Government Officials
42 USC 1983 And Summary Judgment
Tax Evasion And Avoidance
14th Amendment Rights
***** Vagueness of Statute.
"(A) statute which either forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law." Connally v General Construction Co., 269
US 385, 391 (1926).
***** Requirement of Assessment, a Return, and Payment by Stamp (excise tax).
Sec. 6201. - Assessment authority
(a) Authority of Secretary
The Secretary is authorized and required to make the inquiries, determinations, and assessments of all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title, or accruing under any former internal revenue law,
which have not been duly paid by stamp at the time and in the manner provided by law. Such authority shall extend to and include the following:
(1) Taxes shown on return
(b) Amount not to be assessed
(1) Estimated income tax
No unpaid amount of estimated income tax required to be paid under section 6654 or 6655 shall be assessed.
(d) Required reasonable verification of information returns
In any court proceeding, if a taxpayer asserts a reasonable dispute with respect to any item of income
reported on an information return filed with the Secretary under subpart B or C of part III of
subchapter A of chapter 61 by a third party and the taxpayer has fully cooperated with the
Secretary (including providing, within a reasonable period of time, access to and inspection
of all witnesses, information, and documents within the control of the taxpayer as reasonably
requested by the Secretary), the Secretary shall have the burden of producing reasonable and
probative information concerning such deficiency in addition to such information return.
Sec. 6203. - Method of assessment
The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary
in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer,
the Secretary shall furnish the taxpayer a copy of the record of the assessment
.
26 CFR § 301.6203-1: The assessment certificate must comply with and include the following:
The summary record of assessment, through support documents, shall,
1. Provide identification of the taxpayer;
2. Identify the character of the tax liability (class or kind);
3. The tax period, if applicable;
4. The amount of the assessment;
5. The amount of the assessment shall be that shown on a return if a return has
been filed, or the amount reflected on the supporting list or record if no return is filed; and
6. The date of the assessment is the date the assessment is signed by the assessment officer.
Sec. 6211
. - Definition of a deficiency
(a) In general
For purposes of this title in the case of income, estate, and gift taxes imposed by subtitles A and B and excise taxes imposed by chapters 41, 42, 43, and 44 the term ''deficiency'' means the amount by which the tax imposed by subtitle A or B, or chapter 41, 42, 43, or 44
exceeds the excess of -
(1) the sum of
(A) the amount shown as the tax by the taxpayer upon his return
, if a return was made
by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus
(B) the amounts previously assessed (or collected without assessment) as a deficiency, over -
(2) the amount of rebates, as defined in subsection (b)(2), made.
***** 6331 LEVY; Purpose –
"This section was enacted to subject salaries of federal employees to same collection
procedures as are available against all other taxpayers, including employees of a state."
Sims v US
, W. Va. 1959, 79 S. Ct. 641, 359 US 108, and 3 L. Ed. 2d 667.
"Under provision of this section, a levy may be made upon accrued salary or wages of state
employee although state employees are not specifically mentioned in said section."
Sims v. U.S.
, U.S.W.Va.1959, 79 S.Ct. 641, 359 U.S. 108, 3 L.Ed.2d 667 .
This excerpt from a letter written by Congressman Dennis Hertel when he was representing the 14th District of Michigan is worth a look:
We can address your specific question relative to IRS Form 668-W, Notice of
Levy on Wages... Section 6131
IRC entitled "Levy and Distraint" and Section 6131(a) IRC entitled "Authority of Secretary". "...Levy may be made upon the
accrued salary or wages of any officer, employee or elected official of the United States, District of Columbia, or any agency or instrumentality of the
United States or the District of Columbia, by serving a notice of levy on the
employer of such officer, employee or elected official..." does not provide authority to levy wages of private citizens in the private sector.
The omission of this section from IRS Form 668-W may be
misleading to some
employers, as you have suggested.
I hope that you will find this information useful and regret that I am unable
to provide you with more assistance.
Please feel free to contact me again if you have any questions or comments regarding your federal government.
Sincerely,
Original has Signature
DENNS M. HERTEL
Mem ber of Congress
Original with signature can be sent as an attachment!
Just ask for : Misc RM 19 Misc reference material
(as an attachment!)
***** The Purpose of IRC Section 6321.
On 6321; "Purpose of this section is to fit federal tax liens into priority scheme of the Uniform
Commercial Code."
Pine Builders, Inc. v US , D.C. Va. 1976, 413 F. Supp. 77.
"Tax liens of the United States are entirely statutory, and provisions for their collection are to be
strictly followed according to federal law." U.S. v. Heasley, C.A.8 (N.D .) 1960, 283 F.2d 422.
***** DISTRAINT
FLORA v US , 362
US 145 (1960): "Our system of taxation is based upon voluntary assessment
and payment, not upon distraint."
***** IRS AS PRIVATE CORPORATION
CHRYSLER CORP. v. BROWN, 441 U.S
. 281 (1979)
[
Footnote 23 ] "There was virtually no Washington
bureaucracy created by the Act of July 1, 1862 ,
ch. 119, 12 Stat. 432, the statute to which the present Internal Revenue Service can be traced."
***** BURDEN PLACED ON PERSONS DEALING WITH AGENT
In Federal Crop Insurance v. Merrill, 332 U.S. 380, the Supreme Court ruled:
"Whatever the form in
which the government functions, anyone entering into an arrangement with the government takes
a risk of having accurately ascertained that he who purports to act for the government stays within
the bounds of his authority, even though the agent himself may be unaware of the limitations upon
his authority." Also see Utah Power & Light Co. v. United States, 243 U.S. 389; United States v.
Stewart, 311 U.S. 60; and generally, in re Floyd Acceptances, 7 Wall. 666.
Continental Casualty Co. v. United States
, 113 F.2d 284 (5th Cir. 1940):
"Public officers are merely the agents of the public, whose powers and authority are defined
and limited by law. Any act without the scope of the authority so defined does not bind the
principal, and all persons dealing with such agents are charged with knowledge of the extent
of their authority," 113 F.2d, at 286.
Lavin v. Marsh, 644 F.2d 1378 (9th Cir. 1981): "Persons dealing with the government are
charged with knowing government statutes and regulations, and they assume the risk that
government agents may exceed their authority and provide misinformation," 644 F.2d, at 1383.
***** Habitude of Malfeasance.
In re Benny, 29 B.R. 754, 762 (N.D. Cal. 1983): "[A]n unlawful or unauthorized exercise of
power does not become legitimated or authorized by reason of habitude."
See also Umpleby, by and through Umpleby v. State, 347 N.W.2d 156, 161 ( N.D. 1984).
habitude ( hăb
' ĭ-tūd', -tyūd'
)
n. A habitual tendency or way of behaving. See synonyms at
habit.
[Middle English, from Latin habitūdō, condition, from habitus. See
habit.]
***** Subpoena powers of federal agents without expressly named delegated authority
are void; see Cudahy Packing Co. v. Holland
, 315 U.S. 357, 62 S.Ct. 651 (1942);
"We cannot assume that Congress was of the opinion that the present agency, when
appropriately organized for the purpose, would be any the less able to function without
the power in the Administrator to delegate the signing and issuance of subpoenas than
the Federal Trade Commission, the Interstate Commerce Commission, and other agencies
which have not been given and do not assert the power. Nor can we assume, as the
Government argues, that Congress is wholly without design in withholding the power in
this case and granting it in others, or even if it had been, that it is any part of the judicial
function to restore to the Act what Congress has taken out of it. Even though Congress
has underestimated the burden which it has placed upon the Administrator, which is by
no means clear, we think that the legislative record establishes that Congress has
withheld from him authority to delegate the exercise of the subpoena power, and that
this precludes our restoring it by construction."
***** OMB NUMBER REQUIREMENT.
CFR, TITLE 5, CHAPTER III, Sec. 1320.6 Public protection:
"(a) Notwithstanding any other provision of law, no person shall be subject to
any penalty for failing to comply with a collection of information that is subject
to the requirements of this part if:
"(1) The collection of information does not display, in
accordance with Sec. 1320.3(f) and Sec. 1320.5(b)(1), a currently valid OMB c
ontrol number assigned by the Director in accordance with the Act."
"(b) The protection provided by paragraph (a) of this section may be raised in the
form of a complete defense, bar, or otherwise to the imposition of such penalty at any
time during the agency administrative process in which such penalty may be imposed
or in any judicial action applicable thereto."
***** KNOWLEDGE.
The legal dictionary states,
"Constructive knowledge - knowledge that the law attributes
to a person regardless of whether that person has actual knowledge of the matter, usually
because the circumstances are such that a failure to know a fact is regarded as inexcusable."
***** COLLECTION PROCEDURES, Quotes from Internal Revenue Manual
"Before any seizure action is considered, the assessment will be fully explained and
verified with the taxpayer. Also, any adjustments will be fully explained, and the taxpayer
will be informed of his/her rights."
"If the taxpayer claims the assessment is wrong or has additional information that could
impact the assessment, it should be thoroughly investigated and resolved prior to
proceeding with enforcement action."
"The Service has a responsibility to collect the correct amount of tax due, and is required
to verify the taxpayer's liability. In some instances the Service will be required to
demonstrate that the liability is owed. In order to satisfy this responsibility, we must
ensure the liability has been substantiated based on all available facts of the case
."
***** THE DEFINITION OF EXCISE TAXES.
"Excises are 'taxes laid upon the manufacture, sale, or consumption of commodities
within the country, upon licenses to pursue certain occupations, and upon corporate privileges.
"
FLINT v STONE TRACY, 220 US
107 (1911)
"It is claimed, however, that the ultimate question in determining the constitutionality
of this license tax (excise tax) is whether the state has given something for which it
can ask a return. That principle has wide applicability. State Tax Commission v. Aldrich,
316 U.S. 174 , 62 S.Ct. 1008, 139 A.L.R. 1436, and cases cited. But it is quite irrelevant here.
This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the state.
The privilege in question exists apart from state authority. It is guaranteed the people by
the federal constitution."
JONES v. CITY OF OPELIKA , 319
U.S. 105 (1943)
*On Occupations of Common Right.
"There are two, and only two, limitations in the Constitution on the power of the state to
raise revenue for state purposes: (1) That taxes on property must be ad valorem, equal,
and uniform; (2) that the Legislature cannot lay a tax for state revenue on occupations
that are of common right."
Sims v. Ahrens et al., Supreme Court of Arkansas (1925) *
"Legislature… has no power to declare as a privilege and tax for revenue purposes
occupations that are of common right." Sims v. Ahrens et al., Supreme Court of
Arkansas (1925) *
***** Subtitle A from Disclosure Office.
In a response letter to Joann H. Hoverale from Cynthia J. Mills, Disclosure Officer
of the Internal Revenue Service, Philadelphia ,
Pa., Ms. Mills states:
"Dear Mrs. Hoverale:
This is in response to your Privacy Act request dated
December 12, 1995 .
The Internal Revenue Code is not positive law, it is special law.
It applies
to specific persons in the United States
who choose to make themselves
subject to the requirements of the special laws in the Internal Revenue
Code by entering into an employment agreement within the
U.S. Government.
The law is that income from sources not effectively connected with the
conduct of a trade or business within the
U.S. Government is not subject
to any tax under subtitle "A" of the Internal Revenue Code.
This concludes our response to your request.
Sincerely yours, (signature of Ms. Mills)
Cynthia J. Mills, Disclosure Officer"
***** SUING FEDERAL AGENTS.
"In Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), we held that state
officials "acting in their official capacities" are outside the class of "persons"
subject to liability [502 U.S. 21, 23] under 42 U.S.C. 1983. 491 U.S., at 71. Petitioner
takes this language to mean that 1983 does not authorize suits against state
officers for damages arising from official acts. We reject this reading of Will,
and hold that state officials sued in their individual capacities are 'persons' for
purposes of 1983."
"Personal-capacity suits, on the other hand, seek to impose individual liability
upon a government officer for actions taken under color of state law. Thus, '[o]n
the merits, to establish personal liability in a 1983 action, it is enough to show
that the official, acting under color of state law, caused the deprivation of a
federal right.'
Id., at 166." HAFER v. MELO, 502 U.S. 21 (1991).
When lawsuits are brought against federal officials, they must be brought
against them in their 'individual' capacity not their official capacity. When
federal officials perpetrate constitutional torts, they do so ultra vires (beyond
the powers) and lose the shield of immunity. Williamson v. U.S.
Department
of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S.
App.
DC 101, (CA DC 1991).
"Personal involvement in deprivation of constitutional rights is prerequisite
to award of damages, but defendant may be personally involved in constitutional
deprivation by direct participation, failure to remedy wrongs after learning about it,
creation of a policy or custom under which unconstitutional practices occur or
gross negligence in managing subordinates who cause violation." (Gallegos v.
Haggerty, N.D. of New York
, 689 F. Supp. 93 (1988). *
"If those actions are such as to create a personal liability, whether sounding in
tort or in contract, the fact that the officer is an instrumentality of the sovereign
does not, of course, forbid a court from taking jurisdiction over a suit against
him. Sloan Shipyards Corp. v. Emergency Fleet Corp., 1922,
258 U.S. 549, 567 ,
388. As was said in Brady [337 U.S. 682 , 687] v. Roosevelt S.S. Co., 1943,
317 U.S. 575, 580 , 428, the principle that an agent is liable for his own torts 'is
an ancient one and applies even to certain acts of public officers or public
instrumentalities.'"
"If the denomination of the party defendant by the plaintiff were the sole test of
whether a suit was against the officer individually or against his principal, the
sovereign, our task would be easy. Our decision then would be that the United
States
is not being sued here because it is not named as a party ." *
***** IMMUNITY OF GOVERNMENT OFFICIALS
"Sovereign immunity does not shield the individual appellees in their individual,
as opposed to their official, capacities. White v.
Franklin, 637 F. Supp. 601, 612
( N.D. Miss. 1986); Keese v.
United States, 632 F. Supp.85, 92 (S.D. Tex. 1985)."
Williamson v.
U.S. Dept. Of Agriculture, 815 F.2d 368 at 379, (5th Cir. 1987). *
"An instrumentality of Government he might be and for the greatest ends, but the
agent, because he is agent, does not cease to be answerable for his acts."
BRADY v. ROOSEVELT STEAMSHIP CO., 317
U.S. 575 (1943) *
"The principal is not liable for every negligent act of his agent."
BRADY v. ROOSEVELT STEAMSHIP CO., 317 U.S.
575 (1943) *
In Cooper v. O'Connor , 99 F.2d 135, 137, 138 (D.C. Cir. 1938), a banker was
indicted, acquitted and then brought suit for malicious prosecution against the
agents who caused his indictment. Regarding the rule that agents acting outside
the scope of their authority are personally liable for their torts, the court stated:
"There is also a general rule that if any officer- ministerial of otherwise- acts
outside the scope of his jurisdiction and without authorization of law, he is liable
in an action for damages for injuries suffered by a citizen as a result thereof."
See also Estrada v. Hills, 401 F.Supp . 429, 434 (N.D.Ill. 1975).
In
Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978), this rule was clearly
acknowledged by the Court: "As these cases demonstrate, a federal official
was protected for action tortious under state law only if his acts were authorized
by controlling federal law," 438 U.S. 478, at 490.
"As Doe's analysis makes clear, absolute immunity from state law tort actions
should be available only when the conduct of federal officials is within the
scope of their official duties and the conduct is discretionary in nature"
;
Benford v. American Broadcasting Co., Inc., 554 F.Supp. 145, 148 (D.Md. 1982);
and Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989). See also Rutherford
v.
United States , 702 F.2d 580 (5th Cir. 1983).
For example, in
Buck v. Colbath, 70 U.S. 334, 344 (1866);
"That the question, whether such res, so seized as the property of the
defendant in the process, is rightfully seized by the marshal as the
property of the defendant in the process, or otherwise subject to
the exigency of the writ, is one [70 U.S. 334, 338] of jurisdiction, the
authority to decide which belongs exclusively to the court issuing the
process; or, in the language of this court, the ' question is one of right and
title to the property under the Federal process, and which belongs to the
Federal, not the State courts to determine.'"
"…the officer has a very large and important field for the exercise of his
judgment and discretion. First, in ascertaining that the property on which
he proposes to levy, is the property of the person against whom the writ
is directed; secondly, that it is property which, by law, is subject to be
taken under the writ; and thirdly, as to the quantity of such property
necessary to be seized in the case in hand. In all these particulars he is
bound to exercise his own judgment, and is legally responsible to any
person for the consequences of any error or mistake in its exercise to
his prejudice. He is so liable to plaintiff, to defendant, or to any third
person whom his erroneous action in the premises may injure. And
what is more important to our present inquiry, the court can afford him
no protection against the parties so injured; for the court is in no wise
responsible for the manner in which he exercises that discretion which the
law reposes in him, and in no one else."
***** 42 USC 1983 and SUMMARY JUDGMENT.
Accordingly, "personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983."
McKin-non, supra, 568 F.2d at 934.
***** TAX EVASION and AVOIDANCE
According to Black's Law Dictionary, Centennial 6th Edition, pg. 554, "evasion"
is defined as "An act of eluding, dodging, avoiding, or avoiding by artifice.
City of Winky v. Griffith Amusement Co., 129 Tex
40,100 S.W.2d 695,701."
"Evasion" is "A subtle endeavoring to set aside truth or to escape the
punishment of law. Tax 'evasion' is to be distinguished from tax 'avoidance',
the former meaning the illegal nonpayment of taxes due, the latter referring to
the legal reduction or nonpayment of taxes through allowable deductions,
exemptions, etc."
***** 14th Amendment Rights.
"This statute, enacted to aid in 'the preservation of human liberty and human
rights' Owen v. City of Independence, 445 US 622, 636 (1980), reflects
a congressional judgment that a 'damages remedy against the offending
party is a vital component of any scheme for vindicating cherished
constitutional guarantees.' As remedial legislation, [the Act to Enforce the
Provisions of the Fourteenth Amendment] is to be construed generously to
further its primary purpose."
Gomez v. Toledo , 446
US 635 (1980).
"The language requiring intent to deprive of equal protection, or equal
privileges and immunities, means that there must be some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the conspirators'
action. The conspiracy, in other words, must aim at a deprivation of the equal
enjoyment of rights secured by the law to all."
GRIFFIN v. BRECKENRIDGE,
403 U.S.
88, (1971).
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