Attachment M - Jeffrey Thomas Maehr

Under the Paperwork Reduction Act, (PRA), each and every government form that is used to collect information from the general public under law must be linked to its authorizing statutes and implementing regulations** and have a valid Office of Management and Budget "OMB" Form number. This requirement of law provides an orderly means to identify which statutes, regulations and forms are related.

In Section 3512 of the Act, titled "Public Protection," it says that no person shall be subject to any penalty for failing to comply with an agency's collection of information request (such as a 1040 form), if the request does not display a valid control number assigned by the Office of Management and Budget (OMB) in accordance with the requirements of the Act, or if the agency fails to inform the person who is to respond to the collection of information that he is not required to respond to the collection of information request unless it displays a valid control number.

In Section 3512 Congress went on to authorize that the protection provided by Section 3512 may be raised in the form of a complete defense at any time during an agency's administrative process (such as a Summons, an IRS Tax Court or Collection and Due Process Hearing) or during a judicial proceeding.

IRS Form 1040 violates the federal Paperwork Reduction Act (PRA) and is therefore a legally invalid form. Under the Public Protection clause of the PRA, no person can be penalized for failing to file a 1040 if the IRS fails to fully comply with the PRA. The PRA statutes explicitly provide that a PRA challenge is a complete defense and can be raised in any administrative or judicial proceeding. The IRS Individual Form 1040 has not and cannot comply with the requirements of the PRA because no existing statute authorizes the IRS to impose or collect the federal income tax from individuals. That lack of bona fide authority makes it impossible for IRS to avoid violating the PRA.

In U.S. v. Dawes, 951 F.2d 1189 (10th Cir. 1991) the Court said: "Where an agency fails to follow the PRA [Paperwork Reduction Act] in regard to an information collection request that the agency promulgates via regulation, at its own discretion, and without express prior mandate from Congress, a citizen may indeed escape penalties for failing to comply with the agency's request." Id. (citing United States v. Hatch, 919 F.2d 1394 (9th Cir. 1990); United States v. Smith, 866 F.2d 1092 (9th Cir. 1989)).

"...You are not required to provide the information requested on a form that is subject to the Paperwork Reduction Act unless the form displays a valid OMB control number." ...

44 U.S.C. 3512. (4) prohibits agencies from penalizing those who fail to respond to Federal collections of information that do not display valid OMB control numbers. The Act also prohibits agencies from penalizing those who have not been informed that a response is not required unless the collection of information displays a valid control number. Both of these public protections "may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto."

The wording of Subsection 3512, "Public Protection," is as follows:

§ 3512. 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 this subchapter if -

(1) the collection of information does not display a valid control number assigned by the Director in accordance with this subchapter; or

(2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.

(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.

Also, the following case law is taken from 919 F.2d 1394, UNITED STATES of America, Plaintiff-Appellee, v. Richard K. HATCH, Defendant-Appellant. No. 89-10233. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 16, 1990. Decided Nov. 29, 1990.

"The Senate Report analysis of Sec. 3512 states that 21 [i]nformation collection requests which do not display a current control number or, if not, indicate why not are to be considered 'bootleg' requests and may be ignored by the public.... These are the only circumstances under which a person may justify the failure to maintain information for or provide information to any agency otherwise required, by reliance on this Act. S.Rep. No. 930, 96th Cong., 2d Sess. 52, reprinted in 1980 U.S.Code Cong. & Admin.News 6241, 6292.

See also 5 C.F.R. Sec. 1320.5(c) ("Whenever a member of the public is protected from imposition of a penalty under this section for failure to comply with a collection of information, such penalty may not be imposed by an agency directly, by an agency through judicial process, or by any other person through judicial or administrative process.").

Another item of evidence; a stamped copy of a 1987 Treasury Department document entitled, "Request for OMB Review" which is required by the Paperwork Reduction Act. The request was for IRS Form "1040-NR,"the tax form used by Non-Resident Aliens to report their "income."

PRA Section 3507(g) and 5 CFR Section 1320.8(b)(1). Those sections mandate that OMB control numbers must expire after three years, even if the IRS made no changes to its 1040 form during that time. Form 1040 has had the same OMB control number for 24 years. Under Section 3507(g), every OMB control number must expire every three years, or sooner. OMB approves a 1040 for only a three year period so as to ensure that at least once every three years the IRS reviews the 1040 form, publishes its review in the Federal Register, and seeks public input. Apparently, the IRS has not submitted a certification to OMB with an explanation of why it would be inappropriate for OMB to issue a control number with an expiration date.

Several things about this document are noteworthy:

1. The form used for the request is OMB Form "83."

2. On line 5 of Form 83, the administrative requester is required to cite the statutes actually authorizing the collection of the information. The authorizing statutes are, in fact, cited.

3. On line 27 of Form 83, the administrative requester is required to cite the regulations actually authorizing the collection of the information. The authorizing regulations are, in fact, cited.

The "Challenge of Authority" document also contains a similar Treasury PRA request from 1996, but this one is for the "regular" IRS Individual Form 1040 that millions of Americans file each year.

This Treasury administrative request is not made on OMB "Form 83" ---- but rather using an alternate OMB form, "83-1" titled, "Paperwork Reduction Act Submission".

Several very important differences between the OMB request forms need to be noted:

1. OMB Form 83-1 does NOT require any specific citation of statutory authority.

2. OMB Form 83-1 does NOT require any specific citation of regulatory authority.

3. In the "Certification" box found on page 2 of Form 83-1, there are specific references to both PRA Regulations "5 CFR 1320.9" and "5 CFR 1320.8(b)(3)."

4. The attachments to this OMB Form 83-1 request consist primarily of a list of Title 26 (Income Tax) regulations and statutes that are merely (quoting) "associated" with IRS Form 1040.

IRS Form 1040-NR (for Non-Resident Aliens) is certified as complying with the requirements of the PRA found at regulation 5 CFR 1320.8. In its request to the OMB for IRS Form "1040-NR,"the Department of Treasury (IRS) clearly cites both the statutory and regulatory authorities authorizing the use of the form to collect information and certifies its request as such.Please specifically note that for the Treasury's request using alternative OMB Form 83-1 for IRS Individual Form 1040, the Treasury has formally certified the request under regulation 5 CFR 1320.9, which is explicitly reserved for "PROPOSED" government forms.

[Code of Federal Regulations] [Title 5, Volume 3] [Revised as of January 1, 2005]

From the U.S. Government Printing Office via GPO Access [CITE: 5 CFR 1320.9] [Page 155]

TITLE 5--ADMINISTRATIVE PERSONNEL

CHAPTER III--OFFICE OF MANAGEMENT AND BUDGET

PART 1320_CONTROLLING PAPERWORK BURDENS ON THE PUBLIC--

Sec. 1320.9 Agency certifications for proposed collections of information.

As part of the agency submission to OMB of a proposed collection of information, the agency (through the head of the agency, the Senior Official, or their designee) shall certify and provide a record supporting such certification) that the proposed collection of information [...]

If IRS Individual Form 1040 was actually authorized under U.S. law, the Department of Treasury would have submitted it for OMB certification using OMB "Form 83" which requires explicit citation of the Form's authorizing statutes and regulations.

Instead, the IRS used alternative OMB Form "83-1" -- which is designated ONLY for "proposed" government forms - and which does NOT require any formal citation of legal authority allowing its use.
Furthermore, even though an attachment to the Treasury's request for IRS Form 1040 (on OMB Form 83-1) contains a lengthy list of statutes and regulations, and "Box 12" on the form is marked indicating the form is "mandatory,"a careful reading of the submission to OMB will make it clear that the Department of Treasury is ONLY certifying that:

-Form 1040 is a "proposed form" and that, IF authorized, it would meet the collection criteria established by regulation 5 CFR 1320.9, and

-That Form 1040 is only "associated" with the statutes and regulations cited in the 1040 request, and if Form 1040 were actually authorized by law, it would be "mandatory."

As a final observation, it should be noted that both the 1987 Form 1040-NR request as well as the 1996 Form 1040 request were signed by the same IRS officials, one Garrick R. Shear, the IRS Reports Clearance Officer and one Lois K. Holland as/for the Departmental Reports Management Officer.

In short, the Department of Treasury's clear and willful intent to use OMB Form 83-1 (rather than OMB Form 83) to legally certify IRS Individual Form 1040 as a valid government document, is compelling proof establishing that IRS Form 1040 is merely a PROPOSED tax form, and that there is NO LEGAL AUTHORITY that authorizes its use.

Examples of IRS violations of the PRA and its implementing regulations that invalidate Form 1040 include these:

1. IRS has continually violated PRA Section 3506(c)(1)(B)(iii). The section mandates that the 1040 form must inform the recipient of:

(I) the reasons the information is being collected;

(II) the way such information is to be used;

(III) an estimate, to the extent practicable, of the burden of the collection;

(IV) whether responses to the collection of information are voluntary, required to obtain a benefit, or mandatory; and (V) the fact that an agency may not conduct or sponsor, and a person is not required to respond to, a 1040 form unless it displays a valid control number (i.e., issued in accordance with the requirements of PRA).

2. Respondent has continually violated of PRA Section 3507(a)(1)(C). The section mandates that the IRS shall not conduct or sponsor the collection of information via a 1040 unless in advance of the adoption or revision of the 1040 the IRS has submitted to OMB the proposed 1040 form along with copies of pertinent statutory authority and regulations authorizing the IRS to collect the information on the 1040 form. The clearance packages that the IRS submits to the OMB make no mention of IRC Section 1, 61, 63, 6011, 6012, 6091, 7203 or any of the other sections federal judges alternately cite as "the" authority that authorizes IRS to collect information via the 1040.

3. The Respondent and OMB have continually violated PRA Section 3507(g) and 5 CFR Section 1320.8(b)(1). Those sections mandate that OMB control numbers must expire after three years, even if the IRS made no changes to its 1040 form during that time. Form 1040 has had the same OMB control number for 24 years. Under Section 3507(g), every OMB control number must expire every three years, or sooner. OMB approves a 1040 for only a three year period so as to ensure that at least once every three years the IRS reviews the 1040 form, publishes its review in the Federal Register, and seeks public input. Apparently, the IRS has not submitted a certification to OMB with an explanation of why it would be inappropriate for OMB to issue a control number with an expiration date.

4. The Respondent has continually violated PRA Section 3512 ("Public Protection"). This section prohibits the IRS from penalizing any person for failing to file a "bootleg" 1040. The 1040 form falls into the "bootleg" class if it does not display a valid OMB control number and the disclaimer that no response is required without such a control number. The 1995 amendments strengthened this provision by making clear that IRS victims can invoke this protection "in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto." In spite of this, the IRS routinely penalizes and prosecutes people for failing to file the 1040 tax return. Although required by law, IRS never informs people about the bootleg nature of the 1040 form, nor the fact that its hapless victims have no legal obligation to file such bootleg forms.

1040 forms and Respondent Summons to third parties are "information collection requests" which contain NO OMB number and are facially void, therefore IRS summons has no authority. Based on Respondent's own testimony in the Motion for Summary Denial, Page 1, that the 1040 forms were required to be filed by Petitioner, and for which they are seeking personal financial information, they are in violation, once again, of legal standing and procedures.