Misc RM 28 Misc reference material
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RIVERANEWS scolding the U.S. Attorney
THIS IS A RIVERA NEWSLETTER WHICH IS SENT AS PART OF YOUR ONGOING EDUCATION SERVICE
Some time ago Dr. Rivera sent his research on Article III courts to the U.S. Attorney on behalf of a client in response to a Grand Jury summons. They responded back to him with the following:
Dear Dr. Rivera:
This letter is in response to your letters regarding the Grand Jury Subpoenas issued to Mr. Xxxxxx and Mr. Xxxxxx. The government disagrees with your legal arguments objecting to the subpoenas. These arguments are frivolous. United States v. R. Enterprise, Inc., 498 U.S. 292(1991). Your clients may either comply with the subpoenas served or they can explain their noncompliance in a Rule to Show Cause Hearing. The government expects compliance with the subpoenas by February 18, 2003.
Dr. Rivera sent the following letter in response:
Re: Grand jury Subpoena for Records Concerning xxxxxxxxxxxxx & xxxxxxxxxxxx
Dear Mr. Xxxxxx,
My first reaction to the content of your letter dated February 07, 2003, was that your conclusions made you plainly incompetent, but on more contemplative rumination you are also stupid. You have had my letters and the statutes that set up the federal courts in Illinois and Hawaii for almost three months and the best you could come up with was: "The government disagrees with your legal arguments objecting to the subpoenas. These arguments are frivolous." These remarks are patently untrue. I have personally searched, in addition to statute law all written authorities on the federal district courts, and I have found no proof and not even an assertion that the Illinois district court is an Article III court. With the exception of Hawaii, not one official United States publication asserts that the federal trial courts for the several states are ordained and established under Article III of the Constitution.
The letters to which you refer contained no legal arguments. They contained the United States statutes that created the United States District Court for the Northern District of Illinois as an Article IV, territorial court and District Court of the United States for the District of Hawaii as an Article III judicial court. This letter also pointed out that Title 28 U.S.C., which was enacted as positive law in 1948, did not ordain and establish any United States District Courts for any of the several states. The only Article III District Court of the United States in any of the several states was ordained and established in Hawaii in 1959. This was all stated at length in my two letters and supported, as I indicated with copies of the statute law. Because Title 28 U.S.C. is positive law the Code says the same: there is only one Article III in the several states-Hawaii.
The purpose of the letters for my clients was not to object to the grand jury subpoenas. The purpose of my letters and the statutory material submitted with them was to make certain that you are aware that the United States District Court for the District of Illinois is not a judicial court. I have personally searched all written authorities on the federal district courts and I have found not one official United States publication that asserts that the court is ordained and established under Article III of the Constitution. My clients have a strong objection to complying with subpoenas from an administrative court but it is more important that you acknowledge that the court is administrative. Because of your stupidity, you do not understand that a federal judge selected, under §§133 and 134 of Title 28 U.S.C., that sits in a federal court that is established, under an article of the Constitution, other than Article III is not a judicial officer in a judicial court. Because federal judges are appointed for life, almost all of them are just lifetime bureaucrats. My clients do not wish to be administered by the federal government or by an administrator for life. If you were a little intelligent, I would recommend that you read number 79 of the Federalist Papers so you could understand the necessity of keeping a safe distance between the legislature and judiciary.
You, obviously, think it's frivolous to object to be subjected unnecessarily to an administrative proceeding in a United States District Court. The judiciary exists as separate branch of government to protect the people from abuse. Your inability to see the "black letter law" for exactly what it is will cause my clients injury for which you will be responsible. The jurisdiction of these administrative courts consists of the federal territory within a state, which includes the court itself. If you cannot read a statute and understand the plain meaning of what is stated there you are a danger to yourself, to the legal community and especially to my clients. The United States District Court for the Northern District of Illinois is an Article IV, territorial court or legislative court it has no judicial powers.
The main purpose of my letters was to make you aware of the fact of the law with respect to the administrative jurisdiction and power of the United States District Court for the Northern District of Illinois. Here in California, as in most states, state bars and the Supreme Courts for the states have found it necessary to enact rules for attorneys. This California rule appropriately provides direction for you. I suggest that you locate a comparable rule of the state where you are a bar member and contemplate your obligations to the law.
Rules of Professional Conduct of the State Bar of California
Rule 5-200 Trial Conduct
In presenting a matter to a tribunal, a member:
(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;
(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;
(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and
(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.
I did not make any legal arguments concerning the subpoenas from the grand jury. I stated the fact that the United States District Court for the Northern District of Illinois is not a judicial court and I presented its statutory pedigree. I am not making a legal argument when I state that the court is not a judicial court. I stated the fact that the court is not ordained and established by Congress under Article III of the Constitution. It is no wonder that the American public has no respect for lawyers and the legal profession, when we can't even agree on what is fact.
Very truly yours, Dr. Eduardo M. Rivera
Employers Know The Laws Pertaining To W4 Forms
EMPLOYERS KNOW THE LAWS PERTAINING TO W-4 FORMS
Many employers and their accountants find themselves caught in a fight between their loyal employees and an agency of the U.S. Government. However, the noncombatants can easily protect themselves by obeying the law. The applicable laws and court decisions include:
1. Internal Revenue Code 3402. In this section of the United States Code, Congress has enacted all the provisions dealing with employee withholding. Insofar as the course of action for an employer when receiving a W-4 certificate, the law clearly speaks for itself:
"NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, AN EMPLOYER SHALL NOT BE REQUIRED TO DEDUCT AND WITHHOLD ANY TAX UNDER THIS CHAPTER UPON A PAYMENT OF WAGES TO AN EMPLOYEE IF THERE IS IN EFFECT WITH RESPECT TO SUCH PAYMENT A WITHHOLDING EXEMPTION CERTIFICATE FURNISHED TO THE EMPLOYER BY THE EMPLOYEE CERTIFYING THAT THE EMPLOYEE (IS EXEMPT FROM WITHHOLDING)..." 26 USC 3402(n)
The applicable IRS regulation as to responsibility of private companies:
"THE EMPLOYER IS NOT REQUIRED TO ASCERTAIN WHETHER OR NOT THE NUMBER OF WITHHOLDING EXEMPTIONS CLAIMED IS GREATER THAN THE NUMBER OF WITHHOLDING EXEMPTIONS TO WHICH THE EMPLOYEE IS ENTITLED." IRS Regulation 31.3401 (e)(b)
So, the employer only has the duty to honor W-4 forms as filed, not to make any determination. According to current IRS procedures, the companies can notify the tax agency that a worker has claimed exempt or whatever on the W-4 form, but the payroll department still can not be made responsible to amend any form.
3. The awesome Revenue Service cannot help you: "This matter is between the Plaintiff (employee) and the Defendants (employer) and the Internal Revenue Service has no interest in the circumstances of this action ... (and is) not a party." Stahoviak v. Denver and RGW Railroad Co. #79CV20.5 Routt County, Colorado 21 Jan. 80.
4. Whose business is it? Again the Federal Courts have taken a common sense approach and held, as we could easily expect that the matter of paying taxes is between the taxpayer and his tax collector and should not involve the workplace:
"Unless the withholder has reason to know that the party filing form (W-4) is no longer eligible for exemption, the withholding party is not responsible for misstatements made on form (W-4) by an owner of income and hence is not liable for tax which would have been withheld. Defendants manifest concern as to whether the Plaintiff would pay tax... but this is none of their concern." Holmstrom v. PPG Industries, 512 F. Supp 552 (1981)
5. Who makes the DETERMINATION? Many low-level IRS agents claim they can, but do they have the authority? The applicable law, 3402 (n) above, indicates they do not. Legally a worker meeting certain criteria can use his withholding certificate to halt advance tax collections and interest free use of his money. The tax collector legally must wait until April 15th for his share.
A private company, as even the IRS admits, has no authority to make any decision regarding worker's tax status! And once a DETERMINATION is made, who has the authority to actually change the W-4 form itself, in the absence of any legislation. Only the Courts can say:
"...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 (IRC) 3402 (f)(3)". US V. MALINKOWSKI, 347 F. SUPP. 352 (1972).
6. No Altering: The company can not alter any government form or status of the employee. The IRS does not even claim that authority. The employer who cooperates with any agent without a court order is in legal jeopardy. The best policy for the company is to kindly request from the IRS a Court Order.
Even if some "low-level" administrative agent of the Internal Revenue Service may send the company a form letter advising them to disregard an employee's W-4 form, most companies simply ignore such advice letters and save themselves the expensive cost of litigation and damages.
Most employers, Federal and State agencies simply ignore the letter and respond by requesting the writers legal authority to make such a demand on a private company. After all, even Revenue admits no enforcement mechanism exists to compel a paymaster to change a worker's W-4 form nor can any penalties be laid on the wise employer who obeys the law and honors the withholding certificate as filed.
Across the country, hundreds of thousands of wage earners are trying to escape the ravages of inflation, high interest rates, etc. by legally claiming exempt status on the W-4 form or claiming additional allowances.
The Internal Revenue Service, fearing loss of its power and control, is wrongfully pressuring employers to illegally deprive workers of their hard-earned pay. Caught between a loyal employee and his tax collector, many employers want to know what course of action to follow. Prior to taking the proper action, company managers need to understand their options.
The employer and his bookkeeper have several avenues to take:
1. Ignore the IRS threats. The agents simply do not have the legal authority to carry out their phony scare tactics. See IRS National Memorandum dated 30 Dec. 80.
If the agent who sends the company a certain advice letter (that is their entire letter is), had any statutory basis for his request, he would surely state it clearly. The failure of the IRS is to support their request by law is significant and proves that NONE EXIST!
2. Exercise your rights. You have no legal duty to furnish information to any government employee unless pursuant to a court order. Reisman V. Caplin, 375 U.S. 4440, 84 S. Ct. 508 (1964), Mobile Oil Company, 82-1 USTC 9242.
3. Protect yourself. Demand that all communication to you be in writing. Determine completely whom you are dealing with, i.e. make the agent fully identify himself and explain his duties, authority and powers.
4. Allow no tricks. Some low-level administrative officers become overzealous, or forget they are public servants or just become too impressed with their position of power, prestige and privilege.
As a result, the bureaucrats often will falsely claim various hardships against you should you not comply. Study the law, do not allow this. Contact your Congressman's office or the agent's supervisor. Of course, demand a copy of the statute law authorizing any action against you or a copy of the enactment outlining any duties they claim you have.
5. Stay out of the middle. As your employee battles with his taxman on his tax matters, the employer simply does not need to be involved.
Take a neutral stance. Notify the agent that you will accept any court order. You can safely remove your company for the entire dispute by notifying the IRS that they should contact your employee directly concerning the W-4 Form and not to involve the company. Remember: Both the Congress and the Courts take the position that a private company has no legal authority to neither determine anyone's taxes nor change any government form. The power the IRS has over the taxpayer is no concern of the workplace.
6. Your real Problem: Examine your State Labor Code. Have your attorney explain to you possible charges against you for not paying wages due. Most states have penalties against employers for not paying wages.
Legal jeopardy in this matter can also involve persons who violate IRC 6103 "Confidentiality of Tax Information Act", which prohibits revealing information about "exemptions, liabilities, or tax withheld."
As you can imagine, the most serious legal problems land on the interloper, one who needlessly and foolishly meddles in the affairs of others.
7. Liability: Yes, the company can be found liable for damages. You agreed to pay your worker a certain amount for his time and abilities. Any amount withdrawn from his paycheck can only be voluntarily or by force of law. The IRS has no powers whatsoever in this area. The company and the worker entered into a contract, which requires one party to pay the other for the work performed under standard Law of Contracts in your State; the paymaster has no choice but to deliver the amount agreed to be paid.
Taking a working man's pay is hazardous to you and your company's finances. Both the company and the accountant can be sued and be found liable for the willful tort of wrongful taking! You could personally be forced to pay for your part of helping the IRS.
For more information, please contact:
The Tax Consulting Division of The American Institute For The Republic
60 East 1 00 South, Suite 201
Provo, Utah 84606
District Director tax return 1040
District Director Internal Revenue Service
Address City, St Zip
Re: NRA SS#_____
On or______________ I received an unsigned document claiming that you have not received the tax return 1040, and requesting that the form 1040 be filed. I have enclosed a copy of the request. I am know of no such code that requires me to file a "tax return 1040". If you know of such a code, please identify that code for me.
In researching the revenue code book, I discovered that only an "individual" is required to file a tax return (26 USC 6012) and then only under certain circumstances. In looking at Section 7701(a)(1) of the code, I discovered that the term "individual,, is defined as a "person". Then, in checking under 7701(a)(30), I discovered the definition of a "United States Person" as meaning a "citizen of the United States", "resident of the United States", "domestic corporation", "domestic partnership" and a "domestic trust or estate". There is no INDIVIDUAL defined under 7701 (a) (30) and therefore I cannot be an "individual,, within the meaning of 7701 (a)(1) and/or 26 USC 6012.
As well, the Supreme Court in the case of Wills vs Michigan State Police, 105 L.Ed.2d 45 (1989) made it perfectly clear that I, the sovereign, cannot be named in any statute as merely a "person", or "any person". I am a member of the "sovereignty" as defined in Yick Wo vs Hopkins, 118 U.S. 356 and the Dred Scott case, 60 U.S. 393.
Therefore and until you can prove otherwise, I am not a "taxpayer", nor an "individual', that is required to file a tax return. Please forward to me a letter stating that I am not liable for this tax return, or produce the documentation that requires me to file the "requested" tax return.
If you have any questions concerning this letter, you may write to me at the address shown below. Please sign all papers so I know who I am dealing with. Until such a time as I hear from you or your office, I will take the position that I am no longer liable for filing the return. Failure to respond will be taken as meaning that you have acquiesced and that from this date forward, the doctrine of "estoppel by acquiescence" will prevail.
(Your name) Address
re: Fraudulent IRS Levy on my property.
Copy enclosed to be sent to the IRS instead of a portion of my wages.
No police department can do it. The FBI doesn't dare. Yet the Internal Revenue Service does it - all the time. It presumes that tax payers are guilty and then punishes them by garnisheeing paychecks, snatching cash from bank accounts, slapping liens on property and even seizing cars and houses. "The IRS believes they're the good guys and tax payers are the bad guys," says tax attorney Robert Spector of Minneapolis. "The way the IRS treats taxpayers, it amazes me that our tax system still works." (How he IRS Abuses Taxpayers - Readers Digest, February, 1991, page 83.)
Most IRS agents have been mentally programmed to be aggressive in dealing with "taxpayers", and because we have allowed them to do anything short of murder, they often ignore legal procedures and responsibilities which are written up in their own Internal Revenue Codes. The use of Form 668-W, Notice of Levy on Wages, Salary, and Other Income is an example of the fraudulent use of instruments and the usurping of powers not available to them.
THE FRAUDULENT USE OF THE NOTICE OF LEVY - FORM 668-W
You have recently received a Notice of Levy requesting you to give to the IRS money due me. Please notice on the backside of the Notice of Levy. It states:
EXCERPTS FROM THE INTERNAL REVENUE CODE
(b) Seizure and Sale of Property....
Wait a minute. The most important paragraph of the entire chapter is the very first paragraph, because the first paragraph will identify what you are expected to get out of the rest of the chapter. I ask you, Why does this document begin with paragraph (b)?
Where is paragraph (a), the most important paragraph? Is this accidental? A typographical error? Perhaps an old form? Obviously we don't have the entire contract. What are they hiding? Where is the rest of the contract?
I went to the library and looked up Section 6331(a) in the Internal Revenue Code.
It has nothing to do with me or my situation. All these years the IRS had been using
the wrong instrument to collect delinquent taxes. I admit that I fell for it. But then, so do most bankers and employers.
Section 6331 (a) reads as follows:
(a) Authority of Secretary. [of the Treasury] If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official of the United States, the District of Columbia or any agency of instrumentality of the United States or the District of Columbia by serving notice of levy on the employer (as defined in section 3401 (d)) of such officer, employee, or elected official. If the Secretary makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.
Note that Section 6331 states that it is lawful for the Secretary (IRS by delegation) to collect tax by means of a levy after notice of assessment and demand for payment has been sent to the person liable. The date and circumstances when a levy occurs are defined very clearly in Section 6502 (b) and 6335 (a).
Section 6502 (b) Date When Levy in Considered Made. The date on which a levy on property or rights to property is made shall be the date on which the notice of seizure provided in section 6335 (a) is given.
Section 6335 Sale of Seized Property.
(a) As soon as practicable after seizure of property, in writing shall be given by the Secretary to the owner of the property...
The significance of the underlined parts of the Code is confirmed by Section 333.1 of the IRS Legal Reference Guide for Revenue Officers (10-29-79) which explains that A LEVY CANNOT OCCUR WITHOUT A SEIZURE.
"Whether a levy, or notice of levy, is the administrative method employed to collect delinquent taxes, it should be borne in mind that a levy requires that the property levied upon be brought into legal custody through seizure. There must be actual or constructive physical appropriation of the property levied upon. Mere intent to reduce to possession and control is insufficient."
Therefore, there can be no levy until there has been a seizure of targeted property, putting it in the possession of the government. If there has been no seizure, there can be no legitimate notice of seizure. Since a levy cannot occur until the date on which a legitimate notice of seizure is sent, the IRS has no authority to levy on any property that is not in the possession of the U.S. Government.
Notice that Section 6331(a) does create the power to levy;
"upon the accrued salary or wages of any officer, employee, or elected official of the United States, the District of Columbia, or any agency of instrumentality of the United States or the District of Columbia."
because those moneys are already in the possession of the U. S. Government, so no court order in needed to force the surrender of the money. But a court order is needed to compel surrender of salary and/or wages by third parties such as private employers.
A notice of Levy form has no force of law to compel anyone to surrender property to the IRS.
Section 7401. AUTHORIZATION
No civil action for the collection of recovery of taxes, or of any fine, penalty, or forfeiture, shall be commenced unless the Secretary authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the action be commenced.
Section 7403 of the IR Code requires the government to file suit in federal district court against the person from whom they are trying to collect. It also requires that all persons claiming any interest in the property that IRS wants to attach, must be served with papers notifying them of the law suit. Only after a hearing (due process of law) on the suit where a judgment is rendered in favor of the government by a court of law, can a lawful attachment order be issued. If there has been no hearing by a court of law (tax court is not a court of law), there can be no lawful attachment, and there can be no compulsion whatsoever for any one to surrender any property to the IRS as a result of a fraudulently delivered "Notice of Levy."
The items that are subject to seizure under the IR Code are very limited and are related to the excise taxes imposed by Subtitles D and E. of the IR Code. They are defined in Sections 7321 and 7608 (b) (2) (c) as "property subject to forfeiture." They are defined as "Any property on which ... any tax is imposed by this title.." (e.g., distilled spirits, tobacco products, etc. listed in Code Subtitles D and E).
Property such as bank accounts, automobiles, homes, businesses, buildings and other assets belonging to individuals are not subject to seizure under the IR Codes unless they are involved in activities related to taxable commodities on which taxes are not paid.
UNDER NO CIRCUMSTANCES CAN SUCH PROPERTY BE LAWFULLY SEIZED FOR INCOME TAX WITHOUT AN ATTACHMENT ORDER FROM A COURT OF LAW.
However that doesn't seem to stop the IRS from improperly using this instrument to intimidate anybody and everybody they want to at anytime they decide to.
There is a name for that type of activity and we refuse to accept this behavior from our used automobile dealers. It is called Fraud.
Fraud is defined in Blacks Law Dictionary as follows:
An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right- a false representation of a matter of fact, whether by word or by conduct, by false or misleading allegation, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury.
The consequences of fraud, according to the United States Supreme Court, are as follows:
Fraud destroys the validity of everything into which it enters. Nudd v. Burrows
Fraud vitiates the most solemn contracts, documents, and even judgments. U.S. v. Throckmorton
In other words, if you enter into a contract that you find is fraudulent, you have the responsibility to remove your name from that contract just as quickly as you are informed of the fraud so that you will not be held accountable as a party to fraud. It also means that a fraudulent act on the part of the other party releases you from all responsibility to pay.
Are there any penalties against the Government if they use an incorrect form to fraudulently collect taxes? You turn to CFR 601.106 (1) and you read:
Rule 1. An exaction by the U. S. Government, which is not based upon law, statutory or otherwise is a taking of property without due process of law in violation of the Fifth Amendment to the U. S. Constitution.
In section 7214 (a) of the IR Code:
Unlawful Acts of Revenue Officers or Agents. Any officer or employee of the United States acting in connection with any revenue law or the United States
(1) who is guilty of any extortion or willful oppression under color of law ... shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
I provide you this information for your own good because Ignorance of the Law is no defense. I am providing you with two copies of this letter so you can forward one to the IRS and keep one in your files.
I am demanding that you do not turn over any of my money to the IRS until you receive a Court Order from the IRS to do so. If I am right, the Court Order will not appear. If I am wrong, then at least I will have had my day in court under due porches of law. That is my right.
I feel anyone who has lost money to the IRS because of a fraudulent Levy has the makings of a good criminal case of Fraud against the IRS, their agents, the bank, or even their own employer for turning over money they had no obligation to do so.
Sincerely, (Your name)
IRS not a person required to file
Thank you for your correspondence dated (Date of correspondence), however, I am not a person required to file. I have asked questions which require a response before I am willing to do any business with you or any one of your agency.
I read in the Constitution of the United States of America, Article I, Section 8, "The Congress shall have the Power to lay and collect taxes..." Also, the Sixteenth Amendment says, "Congress shall have the Power to lay and collect taxes...", but your stationary indicates that the Internal Revenue Service is a branch of the Department of Treasury, which is a branch of the Executive branch of the federal government. The Executive branch receives its authority from Article II of the Constitution of the United States of America. I have researched Article II and the word taxes is not found. Please, if you will, provide for me the date and circumstances that Congress delegated the authority to collect taxes to the Executive branch of the Federal government.
While you are at it, would you please provide for me the law or regulation in Title 26 that identifies me as a "person liable" in IRC 6001, or "person made liable" in IRC 6011. What taxable activity am I involved in?
Would you also provide me the law or regulation that requires me to fill out a 1040 form. I have looked for this information and cannot find it. In a letter from Michael L. White, Attorney for the office of the Federal Register, dated May 16, 1994, he states, "... Our records indicate that the Internal Revenue Service has not incorporated by reference in the Federal Register a requirement to make an income tax return."
Would you also cite for me where "Income,, is defined in IRC 26. I can only find the Supreme Court's definition. This is important because "Tax Imposed" in Sec. l(a) is defined by using the term, "Taxable Income". "Taxable Income" in Sec. 3(d) is determined under Sec. 63. In Sec. 63(a) "Taxable Income" is defined in part by the term "Gross Income", which is defined in Sec. 61(a), but "Gross Income" is defined by the term "Income". Sec. 61(a) (1) through (15) identifies sources where income could be derived. Would you please identify for me which of the fifteen sources identifies my labor (wages, salary or commissions)?
Thank you in advance for your assistance in this matter.
(Your name and Signature)
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