Misc RM 37 Misc reference material
Reference Material - For Information Only!
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LIBERTY, YOUR RIGHT TO MAKE A LIVING, PART _____
MOTION TO SET ASIDE THE VERDICT FOR FAILURE TO CHARGE AN OFFENSE
The Defendant, _____________________, by and through counsel, respectfully Moves the court pursuant to FRCrP 12(b)(2) to set aside the Verdict for failure of the Information to charge an offense.
It is established that an indictment for a tax issue must identify a "known legal duty" to be valid. United States v. Pomponio, 429 US 10; Cheek v US, 498 US 192. The requirement of a known legal duty is jurisdictional that can never be waived. Freytag v CIR, 501 US 868, 896; Bowen v Johnston, 306 US 19, 24; Machibroda v US, 368 US 487; Kaufman v US, 394 US 217, 222. Legal process that does not identify a crime is void from its inception. Moore v Dempsey, 261 US 86; Patton v US, 281 US 276. "It is well settled that (even) the entry of a guilty plea does not act as a waiver of jurisdictional defects such as an indictment's failure to charge an offense and the defendant may raise such failure at ANY time." US v White, 258 F3d 374, 379 (5th Cir 2001). An information has no less requirement for the averment of a legal duty to have been violated than does an indictment; a violation of a law is indispensable for an accusation.
It is additionally established that the defendant has no necessity to discredit potential inferences or presumptions of responsibility. Due Process requires the plaintiff in a criminal proceeding to carry the burden of proof of a valid established responsibility duly legislated, succinctly and clearly averred in the pleading, and submitted to contestation.
"Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment… Deprivation of such a basic right (to be tried only on a criminal offense as charged) is far too serious to be treated as nothing more than a variance and then dismissed as harmless error." US v Miller, 471 US 130, 136, 140 (1985); Russell v US, 369 US 749, 770-771; Cole v Arkansas, 333 US 196; Speiser v Randall, 357 US 513, 529; First Unitarian Church v Los Angeles, 357 US 545.
And where in the instant Information have the requirements of Due Process to identify an offense been manifested???
The Plaintiff avers in each of the four courts that the defendant "was required by Title 26, United States Code, and by regulations made under the authority thereof, to make a federal income tax return." This declaration is multiple self-serving conclusions of law that has no standing. Fernandez-Montes v Allied Pilots Ass'n, 987 F2d 278, 284 (5th. Cir. 1993); Ryan v Scoggin, 245 F2d 54; Blackburn v Fisk Univ, 443 F2d 121; Pauling v McElroy, 278 F2d 252; Columbia v Tatum, 58 F3d 1101; Wag-Aero v US, 837 FSup 1479, affm. 35 F3d 569. Moreover, any regulation, even if identified, does not establish a legal requirement.
Each count additionally alludes to a "minimum filing requirement" which is another self-serving conclusion of law. It has no standing. If such a requirement exists, Due Process requires the plaintiff to aver the statutory requirement and submit it to contestation with the plaintiff carrying the burden of proof. A defendant has no necessity to assume and defend from a nebulous, unidentified requirement.
The paragraph continues to again claim the defendant failed to file a return "as required by such law and such regulation." Again, this is a legal conclusion that has no standing. Or is this a reference to the hanging phrase that is projected to constitute a subsequent paragraph: "In violation of Title 26, United States Code, Section 7203."?
Is the plaintiff attempting to infer Section 7203 establishes a legal requirement for the defendant to file a return for an income tax? Assuming this is what the plaintiff intends, such a conclusion cannot be supported. Section 7203 does not mention an income tax, a filing requirement, or even who---upon what conditions--- might be required to perform such an act. The courts have further repeatedly evidenced a conclusion of such a requirement would be impossible.
In reviewing whether 26 USC §7207 could be applicable to the offense at bar, the Supreme Court declared, upon review of the 1954 Congressional Record legislation of Part I of Chapter 75: "Congress specifically stated that it placed all these provisions (26 USC §7201 through §7217) in the same part of the Code because it wished them to apply to taxes generally, including income taxes." Sansone v United States, 380 US 343, 348 citations omitted. By the words of the Supreme Court and Congress itself, a citation of Part I of Chapter 75 does not identify a specific tax the defendant can violate. The citation in the instant information therefore cannot identify a "known legal duty" for any tax.
Concurring evidence abounds in case law.
In Grosso v US, 390 US 62, the Supreme Court addressed an issue of willful failure to pay a wagering tax (IRC §4401) and willful failure to pay a gambler's occupational license tax (IRC §4411). Willful failure is not mentioned in either of the two cited statutes. Willful failure came from §7203. "Those LIABLE for payment of that tax are REQUIRED to submit each month Internal Revenue Service Form 730 . . . failure to pay the excise tax and to FILE A RETURN are separately punishable under 26 USC §7203." id 65, emphasis added. Notice should be taken that the known legal duties of those "required, liable" and the requirement to "file a return" are identified within Chapter 35 (§4401 to §4424) while punishment is established by §7203.
Marchetti v United States, 390 US 39, also involved an offense punishable by §7203 for violations of gambling tax statutes. "The second indictment included two counts: the first alleged a willful failure to pay the occupational tax, and the second a willful failure to register, as required by 26 U.S.C. 4412, before engaging in the business of accepting wagers." id, 40-41. Note that the statutory requirements of a "known legal duty" are again "required" within the gambling tax statutes. Willful failure as a conditional requirement for imposition of a specific punishment comes from §7203.
In Ingram v US, 360 US 672, the Supreme Court reviewed utilization of §7201 and §7203 to punish violation of §4401, §4411, and §4421 wagering tax provisions. id, Footnote #1. The court declared: "Liability for the federal tax is imposed by §4401 and 4411 of the IRC…" id 675. The "known legal duty" was within Chapter 35; it was not in Chapter 75.
Punishment via §§7201, 7203, and 7206 for violations relating to wagering taxes was also imposed in US v Sheer, 278 F2d 67; Burks v US, 287 F2d 117; US v Shaffer, 291 F2d 689; US v Minker, 312 F2d 632; Bohn v US, 260 F2d 773; US v Claney, 276 F2d 617; US v Stoffey, 279 F2d 924; Application of Leahy, 298 F2d 233; George v US, 346 F2d 137; US v DiPrimio, 209 FSup 137; US v Nicholas, 224 FSup 310.
Liquor law violations were punished by §7201, §7203 or §7206 in prosecutions for untaxed distilled spirits in Wilson v US, 320 F2d 493; US v Cook, 412 F2d 293; US v One Ford, 304 F2d 419; US v Champion, 387 F2d 561; Benefield v US, 370 F2d 912; US v Davis, 369 F2d 775; US v Goss, 353 F2d 671; Hyche v US, 286 F2d 248; Ingram v US, 241 F2d 708; Dowling v US, 249 F2d 746; Brown v US, 253 F2d 587; West v US, 259 F2d 868; O'Neal v US, 273 F2d 549; Tucker v US, 279 F2d 62; King v US, 282 F2d 398; Monnette v US, 299 F2d 847; Blumenfield v US, 306 F2d 892; US v Denton, 307 F2d 336; US v One Pontiac, 308 F2d 893; US v Lemons, 309 F2d 168; US v Ivey, 310 F2d 229; Davis v US, 385 F2d 919; US v Rector, 488 F2d 1079. The "known legal duties" are found in Chapter 51. Chapter 75 does not identify that responsibility.
§7201, §7203, or §7206 were used to punish the failure to file excise tax returns on wagers required by §4401 and §4411 in Tyler v US, 397 F2d 565; US v Stavros, 597 F2d 108; Edwards v US, 321 F2d 324; US v Sams, 340 F2d 1014; Scaglione v US, 396 F2d 219; US v Magliano, 336 F2d 817; Rutherford v US, 264 F2d 180; US v Gaydos, 310 F2d 883; US v Sette, 334 F2d 267; US v Simon, 241 F2d 308; Clay v US, 246 F2d 298; Merritt v US, 248 F2d 19; Field v US, 263 758; Barnhill v US, 279 F2d 105; Rosen v US, 293 F2d 938; US v Woodson, 303 F2d 49; US v Nicholson, 303 F2d 330; US v Brooks, 303 F2d 851; US v Marchointe, 309 F2d 435; US v Whiting, 311 F2d 191; US v Viale, 312 F2d 595; US v Grossman, 315 F2d 94; US v Wilson, 214 FSup 629. The "known legal duties" are found in Chapter 35. Punishment was imposed as authorized by Chapter 75.
Violations of the required filing of race track forms could have been charged with a misdemeanor under §7203 or a felony under §7206 according to the court in US v LaHaye, 548 F2d 474. Similar gambling violations used the same punishments in US v McGee, 572 F2d 1097; US v Snyder, 549 F2d 171; US v Dumaine, 493 F2d 1257; US v Kessler, 449 F2d 1315; US v Haimowitx, 404 F2d 38; US v Willoz, 449 F2d 1321; US v Salerno, 330 FSup 1401.
A violation of §4461 coin operated gaming devices statute was punished by §7203 in US v Menk, 260 FSup 784. The "known legal duty" is found in Chapter 36.
Violations of corporate/employment tax requirements resulted in punishment by §7201, §7202, §7203 or §7210 in Van Allen Co, v US, 422 US 617; Gundlach v US, 262 F2d 72; US v Mollet, 290 F2d 273; US v Stevedores, 310 F2d 47; Botta v Scanlon, 314 F2d 392; Ryan v US, 314 F2d 306; US v Becker, 259 F2d 869; US v Rothbart, 723 F2d 752.
Tax preparer violations were punished by §§ 7201, 7203, and 7206 in US v Mesheski, 286 F2d 345, and US v Barnes, 313 F2d 325.
A sugar tax violation was punished by §7203 in Call v US, 265 F2d 167.
An estate tax violation was punished by §7207 in US v Alker, 254 F2d 292.
A marijuana tax violation was punished by §7206 in US v Alvere, 470 F2d 981.
A violation of concealing property from levy was punished by §7206 in US v Bergman, 306 F2d 653.
This list is not exhaustive. Its purpose is to merely show that the provisions of Chapter 75, and specifically §7203, have been utilized for the prosecution of a multitude of Title 26 offenses other than what the prosecution would have this court assume and apply. The "known legal duties" for the offenses within the above list have not been contained within Chapter 75, nor can Chapter 75 be used to identify any legal duties specifically for an income tax. A conclusion that Chapter 75 identifies the required "known legal duty" for an income tax, as contended by the prosecution, is totally incompatible with the above case law.
"The (revenue) statute was evidently drawn with care. Its language is plain and unambiguous. What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function." Iselin v U.S., 270 US 245, 250-251; West Virginia University Hospital v Casey, 499 US 83, 101 (1991). In the instant case, the prosecution does not want the court to merely construct an ambiguous statute in a favorable manner or enlarge a statute that might be overly restrictive, but wants this court to conjure, assume, and apply numerous duties in their entirety for multiple unidentified legal responsibilities---after the trial where the prosecution has been relieved of the burden of proof and the assumptions cannot be contested. Such an act is not supported by any holding, or dicta, of the supreme court. No appellate court condones such an action except for income tax cases. It is a "well-settled rule that the citizen is exempt from taxation unless the same is imposed by CLEAR AND UNEQUIVOCABLE language, and that where the construction of a tax law is doubtful, the doubt is to be resolved in favor of those upon whom the tax is sought to be laid..." Spreckles Sugar v McClain, 192 US 397 emphasis added.
All we have in the instant case is a naked accusation without any statutory foundation. If the only thing necessary for establishing the existence of a legal responsibility is the whim of the prosecutor, there is no reason for a judicial proceeding. The whim can equally prearrange requirements of culpability even to where an accusation is conclusive evidence of guilt. Due Process would be set back 2000 years to Roman law.
The necessity of being informed of a known legal duty has been expressed by the court.
"This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law." Jordan v De George, 341 US 223, 230 (1951). In the instant information, we are not faced with a lack of a statute that gives notice of a lawful duty before an act is done; we are instead looking for a law that describes a mandatory responsibility before conviction. The prosecution implicitly asks this court to assume such a law exists but refuses to identify it and submit it to contestation. And again: "Conviction upon a charge not made would be sheer denial of due process." De Jonge v Oregon, 299 US 353, 362. (1937); Dunn v US, 442 US 100, 106-107. "If doubt exists as to the construction of a taxing statute, the doubt should be resolved in favor of the taxpayer." Hassett v Welch, 303 US 303, 314. Again, a request for construction by the Hassett court must rest upon an identified tax statute that has previously been averred, which has not been done in the instant case.
This is not a situation were a defendant has been accused of one crime and convicted of another with "prejudice" being required to set aside the verdict. Where NO crime has been averred, prejudice is a non sequitur. Patton v US, 281 US 276, 292; Harris v US, 149 F3d 1304, 1308; Kelly v US, 29 F3d 1107, 1113-1114.
Nor can the prosecutor rely upon the provision of FRCrP 7(c)(3) that authorizes criminal process without a statutory citation. The committee that wrote the provision in 2002 relied upon the two cases of Williams v US, 168 US 382 (1897) and US v Hutcheson, 312 US 219 (1941) as supporting authority for the provision. Scrutiny of the two cases reveal each case involved the averring of one crime with the conviction of another crime, and the origin of the prejudice requirement. They do not support the validity of process that has NO statutory duty averred. Eight hundred years evolution of Due Process that no man shall be punished for a crime except "by the law of the land" cannot properly be reversed by a misleading representation made by a committee rewriting procedural rules.
The responsibility for a tax can only be imposed by a statute. 26 USC §7203 is the only statute identified in the information and the above analysis conclusively shows §7203 can apply to numerous different taxes and to many acts forbidden within each tax. The citation therefore cannot identify a "known legal duty" that the defendant may have violated and the information therefore does not charge an offense.
Without a crime being presented to the court in the information, the court does not have a "case" before it and the verdict must be set aside.
Summons or an audit notice
SO THE IRS HAS ISSUED YOU A SUMMONS OR AN AUDIT NOTICE
These instructions are to help you so that you can prepare yourself for a direct face to face confrontation with the Internal Revenue Service in answer to a request for an Audit or a Summons.
First of all you need to be aware that under the Anti- Peonage Act and pursuant to the 13th Amendment you cannot be required to work for the government for free.
The Thirteenth Amendment, which was added to the Constitution in 1864, prohibits involuntary servitude. Laws on peonage were passed by Congress shortly thereafter. They are founded upon long standing principles that are passed upon the Constitutional Fifth Amendment mandate that no person shall be deprived of life, liberty, or property without due process of law. Your labor is your property. Peonage is defined as a status or condition of compulsory service, based upon indebtedness.
When the Internal Revenue Service asks you to produce your books and records you are entitled to be reimbursed for your time that you spend off work and the time that you have used to prepare the books and records and any expenses you have incurred through the use of an attorney or an accountant to prepare these alleged books and records.
So, you need to tell the IRS agent or to notify them by letter as soon as you receive the summons stating that you cannot be deprived of your property without just compensation.
In your letter to them, you write:
"My time is worth $ - .00 an hour. I estimate it will take me - hours to prepare my books and records. I estimate that my time at the audit will be - hours, so therefore, upon receipt of your check for the amount of (time multiplied by rate you are going to charge), I will be more then happy to appear at your office. When you agree to pay me for my time, I will agree to come and meet with you."
If you feel that it is in your best interest, or you just want to have some fun at the expense of an IRS agent and you decide to meet with them to answer a summons to go into the Internal Revenue Service to produce your books and your records.
1. Make sure that you never go to the office of the IRS by yourself.
2. Always invite a witness to go with you and make sure you have a good portable tape recorder.
3. If the agent refuses to let you have a tape recorder, then postpone the meeting until they will allow it.
4. Some of the agents will try to tell you that a tape recorder is not allowed. Don't you believe it!
5. Other agents will tell you that you have to give them at least ten days notice if you are going to have a tape recorder with you. This is because of the internal rule that if you are going to tape the interview, they have to tape the interview also.
6. The very first thing you need to ask for is the agent's identification. You want to see his badge. Don't question him about it, just write down his NAME and IDENTIFICATION NUMBER and the COLOR of the badge. If the back ground of the badge is yellow it is an IRS agent. If the background color is blue the agent is BATF (Bureau of Alcohol Tobacco and Firearms), and it is white the agent is a CID agent (Criminal Investigations Division).
7. Next, go to the Internal Revenue Code, Section 7701 (a)(1) and ask the IRS agent to
PERSON: The term "person" shall be construed to mean an individual, a trust, a state, partnership, association, company or corporation."
Then you go to 7701 (a)(30) and have the agent read:
UNITED STATES PERSON: The term United States Person means a citizen or resident of the United States."
8. Then you ask the IRS officer:
Which person do you believe that I am? Am I a "person" or a "United States Person?"
(The IRS agent will tell you that you are a United States Person.)
9. Then, go to Section 6001. Hand this page to the IRS agent and say.
"Now, would you please read 6001, first sentence?"
"Every person liable for a tax imposed by this title, or for the collection thereof, shall keep such records, render such statements, make such returns, and comply with such rules and regulations as the secretary from time to time may prescribe."
Then, you say,
"Now first of all, what evidence do you have that I am liable for a tax? And second of all, where does it identify me as an United States Person as being subject to this paragraph? It says every person, not every United States Person and by definition they are two separate entities."
10. Then you have him read the second sentence in this paragraph and it says:
"Whenever in the judgment of the secretary it is necessary he may require any person by notice served upon such person or by regulation to make such returns, render such statements or keep such records as the secretary may deem sufficient to show whether or not such person is liable for a tax under this title."
11. Now, if you've gotten this far with the IRS agent you're doing good because usually people don't get passed the first question. Then you ask:
"According to the Freedom of Information Act would 10 days be sufficient time for you to obtain the notice that the IRS has allegedly sent me notifying me that I am required to keep any books and records?"
12. Would 10 days be sufficient time for you to obtain the written determination records and the legal basis you used to determine which person I am (whether I am a person or a United States Person)
13. Would 10 days be sufficient time for you to obtain the books and records and determination of background file records, which you rely on, to determine that I have incurred a liability to the United States Government upon which I am required to keep books and records?
In this interview you have not argued Constitution, since you showed them their own documents and records they cannot argue that they are not going to discuss Constitutional issues with you because you haven't even brought up the Constitution. However, they have been so trained and so ingrained in what they are going to use and what they have usually said in these types of interviews. They will probably say,
"We're not going to argue Constitutional issues and this interview is terminated."
To be sure to have that on your tape and your witness heard it, you state,
"I'm here to attempt to cooperate with you. All I need to do is have some information. So let's let the record show that this interview is being terminated at your request and that it has nothing to do with Constitutional issues and that I have made every effort to cooperate and to be here to fulfill the requirement of the summons."
As soon as the interview is over, pick up your tape recorder, thank them for their time and you and your witness politely leave. They will not ask you for another interview.
Name address City, State zip
Internal Revenue Service
Address City, State zip
With regard to the piece of paper with the word "Summons" in bold print on the top dated ______, I believe you have served process illegally. I could be wrong but, according to the Federal Rules of Civil Procedure, Rule 4. Process
(a) Summons: Issuance. Upon the filing of a complaint the clerk [of a court] shall forthwith issue a summons and deliver the summons to the plaintiff of the plaintiff's attorney who shall be responsible for prompt service of the summons and a copy of the complaint...
I don't believe that piece of paper you call a summons was ordered by a court and the court clerk issued it.
A "Summons" is a mandate of court and means supplied by law for assertion of jurisdiction. Lybrand v The State Co. 184 S.E. 580 179 S. C.
What court issued the summons? I might have missed it but, what Judge signed it?
The object of service of a "Summons" is not only to give notice to the defendant of pendency of suit against him but to bring him under jurisdiction of the court. Coever v Cresent Lead Zink Corp 286 W.W. 3, 10, 315 Mo. 276.
What suit? There is no legal action that I know of.
The function of the "Summons" is to bring defendant within jurisdiction of court and to give him notice of action (in court] and opportunity to appear and defend, and is the usual means of acquiring of the person of defendant. Raines v. Posston, 38 S.E. 2d 145, 146, 208 S.C. 349
I don't mean to be telling you how to do your business but, the "Collection Summons" received from your office, this piece of paper was not requested by a judge and was not delivered by a legal summons server. It fails to state the law that makes me, an individual, a "taxpayer" within the scope of Title 26. So, it can have no claim on my property, nor can it require me provide anything to the IRS.
The piece of paper with the word "Summons" in bold print at the top makes the statement that it is "issued under the authority of the Internal Revenue Code... 11 Now, you know as well as I do that the Internal Revenue Code does not have any authority. This is confirmed by the Congressional Research Service.
"Is Title 26, of the United States Code, law?
This question stems from the fact that some titles of the United States Code (U.S.C.) are "positive law" and others are not. Title 26, Internal Revenue, has not been enacted as positive law.
The U.S.C. is divided into fifty titles. of the fifty titles, twenty and part of another have been enacted into positive law. If a title has been enacted into positive law, then the text of that title constitutes legal evidence of the laws in that title. If the title has not been enacted into positive law, then the title is only prima facie evidence of the actual law. The courts could require proof of the underlying statutes, which are the positive law when the title has not been so enacted.
I realize that it is not very comforting to you to know that the IRS is governed by Title 26 of the United States Code, a non-positive law at best known as "prima facie" law. Naturally, I was curious to find out what underlying positive law the IRS Code relies upon. So I did a little research. This might be interesting to you. I found that all laws in all of the titles not codified as positive law receive their authority from the United States Statutes at Large which have been codified in the United States Code of Federal Regulations. Of course, you probably already know this. If not, please take the time to notice for yourself that Section 7602 gets its "rule making authority" from Title 27, Part 70. (No kidding. I was surprised also. Check it out for yourself. A little trip to your local law library would be very enlightening.)
Or write to the office of the Federal Register. Michael L. White, Attorney for the office of the Federal Register, in a letter dated May 16, 1994, states:
The Director of the Federal Register has asked me to respond to your inquiry. You have asked whether Internal Revenue Service provisions codified at 26 U. S. C. 6020, 6201, 6203, 6301, 6303, 6321, 6331 through 6343, 6601, 6602, 6651, 6701, 7207, and 7601-7606 have been processed or included in 26 CFR part 1. (Income Tax)
The Parallel Table of Authorities and Rules, a finding aids compiled and published by the office of the Federal Register (OFR) as a part of the CFR Index" indicates that implementing regulations for the sections cited above have been published in various parts of title 27 of the Code of Federal Regulations (CFR). There are no corresponding entries for title 26.
The way you are reading Titles 26 and 27 reminds me of the way some people read the Bible. "And he cast down the pieces of silver in the temple, and departed, and went and hanged himself." Matthew 27:5 " ... Then said Jesus unto him, Go, and do thou likewise." Luke 10:37
I am sure you know that Title 27 has nothing to do with Title 26 Part 1 (Income Tax). Title 27 CFR Part 70 is involved only with Alcohol, Tobacco Products and Firearms. Therefore, form 2039 can only be used by the Bureau of Alcohol, Tobacco and Firearms. (Did you borrow this form from them?)
The Code of Federal Regulations is a codification of the Federal Register and
"the contents of the Federal Register shall be judicially noticed and without prejudice to any other mode of citation ... (USC 44, 1507).
Now, if we go to 27 CFR 70:
Subpart A Scope
This part sets forth the procedural and administrative rules of the Bureau of Alcohol, Tobacco and Firearms for:
(a) the issuance and enforcement of summonses, examination of books of account and witnesses, administration of oaths, entry of premises for examination of taxable objects, granting of rewards for information, canvas of regions for taxable objects and persons, and authority of ATF officers.
Are you an ATF officer, or do you work for the BATF? (I don't know. Some of us have to work two jobs just to make ends meet.)
I can find no where in 27 CFR 70 where it refers to IRS, IRS Agent, Revenue Agent, District Director, Form 2039, or Chief, Collection Branch. In fact, I find the following definitions:
ATF officer, to mean an officer or employee of the Bureau of Alcohol, Tobacco and Firearms (ATF) authorized to perform any function relating to the administration or enforcement of this part;
Bureau to mean The Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, Washington, D.C. 20226;
Chief, Tax Processing Center, the ATF officer principally responsible for administrating regulations in this part concerning special occupation tax and also responsible for filing tax liens and issuing third party levies and for disbursing money due to taxpayers under the provisions 26 U.S.C. enforced and administered by the Bureau.
For the sake of discussion, let's go to Title 26, Section 7602 (a) AUTHORITY TO SUMMON. Then let's look up the underlying positive law that gives Section 7602 its authority. To do that we need to go to the Code of Federal Regulations, Title 27 Part 70.23.
(b) Summonses. For the purposes of this section the officers and employees of the Bureau (of Alcohol, Tobacco, and Firearms] designated in paragraph (c) of this section are authorized to summon the person liable for tax...
Let's go to paragraph (c) it refers to.
(c) Persons who may issue summonses. The following officers and employees of the Bureau are authorized to issue summonses pursuant to 26 U.S.C. 7602:
(1) Regional director (compliance, and
(2) office of Inspection: Assistant Director, Deputy Assistant Director, and regional inspectors.
Are you one of the above? Do you have the authority to issue a summons?
Title 27 Part 70.23 Service of summonses. (a) In general. A summons issued under 26 U.S.C. 7602 shall be served by an attested copy delivered in hand to the person to whom it is directed, or left at his last and usual place of abode.
Who can serve a summons? Do you have the authority to serve a summons?
A "Summons" is the name of writ, commanding the Sheriff, or other authorized officer, to notify the party to appear in court to answer a complaint made against him and in said writ specified, on the day therein mentioned. Johns v. Phoenix Nat Bank 56 P. 725, 726, G. Aviz 290.
What Sheriff or other authorized officer delivered this piece of paper?
A "Summons" may be served by any person who is at least 18 years of age and not a party to the action." Caldwell v., Copula 219 Cal. App.3rd,859 "prohibiting personal service of process by parties... " "discouraging fraudulent service by persons with an adversarial interest in a legal action."
I really don't think you would be foolish enough to serve the summons yourself because that would put you in jeopardy, So, please, may I have the name of the legal server. (If somebody else told you it was alright to serve this summons this way, please share this letter with them, then both of you should take a trip to the law library.)
Title 27 Part 70.23 (b) Persons who may serve summonses. The following officers and employees of the Bureau are authorized to serve a summons issued under 26 U.S.C. 7602:
(1) The officers and employees designated in paragraph (c) of paragraph 70.22 and
(2) Chiefs, field operations, area supervisors, inspectors, regional audit managers and auditors, Compliance Operations; special agents, Internal Affairs; and all special agents. Law Enforcement. The authority to serve a summons may be redeligated only by the Assistant Director, office of Inspection, and regional directors (compliance), to officers and employees under their jurisdiction.
Which one of the positions in the Bureau of Alcohol, Tobacco, and Firearms described above identifies you?
A "Summons" is a process, a means of bringing a defendant into court so that court acquires jurisdiction of his person, and is wholly stationery matter, and unless defendant is served in a manner provided by law, court is without authority to proceed. State ex rel Ballew v. Hawkins, Mo. app., 361 S.W. 2nd 852, 857
Was this piece of paper served in a manner provided by law? Check it out.
Also, as you are obviously not informed of my Nontaxpayer status, or you would not be involved in this action. So I have included a declaration of my position.
DECLARATION OF BELIEF
I am not a taxpayer as defined in the Internal Revenue Code. Due to fraud on the part of the Internal Revenue Service, I have previously revoked all signatures with your organization. This revocation and rescission is based upon my rights in respect to constructive fraud as established in, but not limited to the cases of Tyler v. Secretary of State, 184 A.2d 101 (1962), and also El Paso Natural Gas Co. v. Kysar Insurance Co., 605 Pacific 2d. 240 (1979) which stated, "Constructive fraud as well as actual fraud may be the basis of cancellation of an instrument."
Now, while you are at the library, please look up Title 28 sec. 2201. Because neither the courts nor the IRS has the authority to change my status from "NONTAXPAYER" to "taxpayer". I am now and continue to be outside of your jurisdiction and decline your invitation to submit to your jurisdiction.
The United States courts have ruled:
"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 Congress does not assume to deal, and they are neither of the SUBJECT nor of the OBJECT of the revenue laws." Long v. Rasmussen, 281 F. 236, at 238. (1922); Economy Plumbing and Heating v. U.S., 470 F. 2d 585, at 589. (1972) (Emphasis added)
I'll tell you what. To prove jurisdiction before the scheduled meeting you must :
1) provide the law and/or the factual basis which the IRS is relying on to determine that I am a "taxpayer" within the scope of Title 26, and positive laws backing said Title.
2) provide the law and/or the factual basis which the IRS is relying on to determine that I am a "person required" to file a tax return with the IRS.
3) produce a copy of the Delegation of Authority that you relied upon to determine that I am a "person subject to" or a "person liable for', an Internal Revenue Tax."
4) produce proof that the above requested Delegation of Authority has been published in the Federal Register as required by 44 USC 1507.
Your failure to answer these Demands for Documents within the time limit prescribed is an admission, by automatic operation of law upon these presents, that I am not within the scope of Title 26 and have no requirement to file anything with the IRS and that your claim is straight fraud. That's fair enough, isn't it?
Therefore, and until you can prove otherwise, I am not a "taxpayer" as defined by your code. I have no debt with your organization and I have no obligation to submit to an audit or collection summons. Nor do you have the authority to conduct an audit on me. Naturally, if you continue in this illegal action I will not hesitate to take legal action against you.
Before me, a Notary Public, on this day, personally appeared the above named individuals.
Subscribed and sworn before me on this day of 20__.
Notary Public My Commission Expires:
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