Attachment D - Jeffrey Thomas Maehr
IRS Laws and related Case law against Respondent actions;
The IR Code is NOT POSITIVE LAW (See Attachment T), but is acting under the color of law, and does not have jurisdiction over most Americans who do NOT work for the federal government.
Supreme Court Justice Brande is spoke, in the case of Olmstead v United States when he said: "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will he imperiled if it fails to observe the laws scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by it's example. Crime is contagious. If the government becomes a law breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of criminal laws the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. ...And so should every law enforcement student, practitioner, supervisor, and administrator."
"The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people. . . . The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members." See: U.S. v. William M. Butler, 297 U.S. 1.
The IRS has repeatedly ignored all questions and requests for verification, documentation and other facts under FOIA. Silence, or lack of responding to good faith questions, requests and responses can ONLY equate to attempted fraud, deceit and theft:
"Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading. . . We cannot condone this shocking behavior by the IRS. Our revenue system is based on the good faith of the taxpayer and the taxpayers should be able to expect the same from the government in its enforcement and collection activities. If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately." U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen, 64 A. 932.
"Fraud in its elementary common law sense of deceit… includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public,… and if he deliberately conceals material information from them he is guilty of fraud." McNally v. U.S., 483 U.S. 350, 371-372, Quoting U.S. v Holzer, 816 F.2d. 304, 307.
"Silence is a species of conduct, and constitutes an implied representation of the existence of facts in question. When silence is of such character and under such circumstances that it would become a fraud, it will operate as an Estoppel." Carmine v. Bowen, 64 U.S. 932
Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480 (1983).
"The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." United States Supreme Court, Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951).
"The judicial power of the United States (and therefore states) is limited by the doctrine of precedence." Anastoff v. United States (8th Circuit, 2000).
"Keeping in mind the well settled rule, that the citizen is exempt from taxation, unless the same is imposed by clear and unequivocal language, and that where the construction of a tax is doubtful, the doubt is to be resolved in favor of those upon whom the tax is sought to be laid." Spreckles Sugar Refining Co. vs. McLain: 192 US 397
"As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intent to convey; the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said." See: Gibbons v. Ogden, 27 U.S. 1
But it cannot he assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 6.3 Minn. 147, 65 W.X. N.W., 262, 101, N.W. 74; Cook v. Iverson, 122, N.M. 251.
Treasury Order 150-1, Paragraph 5 States: "US Territories and Insular Possessions. "The commissioner shall, to the extent of authority otherwise vested in him, provide for the administration of the United States internal revenue law [small i ] in the U.S. territories and insular possessions (See Attachment B) and OTHER AUTHORIZED AREAS OF THE WORLD."
Treasury Order's 150-1 thru 150-29 are the Delegation of authority orders for the IRS from the Dept. Of Treasury. No section or paragraph is found in any of these which authorize the Commissioner to administer the internal revenue laws anywhere other than the above paragraph.
Bente v. Bugbee 137 A. 552, 553, 103 N. J. Law 608 . In that case the court held: A tax is a legal imposition exclusively of statutory origin (37 Cyc.724, 725), and, naturally, liability to taxation must be read in the statute, or it does not exist.
"The taxpayer must be liable for the tax. Tax liability is a condition precedent to the demand. Merely demanding payment, even repeatedly, does not cause liability."[Boathe v. Terry, 713 F.2d 1405, at 1414 (1983).
"In view of other settled rules of statutory construction, which teach that... if doubt exists as to the construction of a taxing statute, the doubt should be resolved in favor of the taxpayer..." 1938: Hassett v. Welch, 303 U.S. 303.
"The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government; yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation." See: 2 Elliot's Debates, 94; 2 Bancroft, History of the Constitution, 267.
"It is a basic principle of statutory construction that courts have no right first to determine the legislative intent of a statute and then, under the guise of its interpretation, proceed to either add words to or eliminate other words from the statute's language." DeSoto Securities Co. v. Commissioner, 235 F.2d 409, 411 (7th Cir. 1956); see also 2A Sutherland Statutory Construction § 47.38 (4th ed. 1984).
This checklist provides a list of provisions of the Code that the Respondent is ignoring in its day-to-day administration of the Code.
26 USC 6020
26 USC 6201
26 USC 6065
26 USC 6212
26 USC 6303
26 USC 6330
26 USC 6331(a)
26 USC 6331(h)
26 USC 6331(d)
It is another violation of law for the IRS to be using the U.S. Mail system to commit fraud.
Title 18 United States Code 245 Provides:
"Whoever whether or not acting under color of law, intimidates or interferes with any person from participating in or enjoying any benefit, service, privilege, program, facility, or activity provided or administered by the United States; [or] applying for or enjoying employment, or any perquisite thereof, by any agency of the United States; shall be fined under this title, or imprisoned not more than one year or both."
Title 18 United States Code 1983 Provides:
"Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
TITLE 18, U.S.C. CHAPTER 63 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretence, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
TITLE 18, U.S.C. CHAPTER 63 1349. Attempt and conspiracy
Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
IRS Audit Manual and The Handbook For Agents IRS Supplement published on 1/10/79 in Section 6 states: "...A summons of a taxpayers books and records for return of information is not recommended"
"It does not require the actual entry upon premises and search for a seizure of papers to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment. A compulsory production of a party's private books and records, to be used against himself or his property in a criminal penal proceeding or a forfeiture, is within the spirit or meaning of the Amendment." - Boyd vs. U.S., 116 U.S. 616.
Petitioner's 5th Amendment rights are attacked in filing a 1040 form, especially one that is unofficial and facially void (as described above):
"The information revealed in the preparation and filing of an income tax return is, for the purposes of Fifth Amendment analysis, the testimony of a witness." Government compels the filing of a return much as it compels, for example, the appearance of a 'witness' before a grand jury." 1975: Garner v. United States, 424 U.S. 648.
(b)Fifth Amendment - "No person shall be held to answer for a capital, or otherwise infamous crime, unless by a presentment or indictment of a Grand Jury. except in cases arising in the land or naval forces, (xi the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law nor shall private property be taken for public use without just compensation.."
"There can be no question that one who files a return under oath is a witness within the meaning of the Amendment." Sullivan v. U.S.. 274 U.S. 259.
* TITLE 18 PART I CHAPTER 13 241 Conspiracy against rights
"If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."
"Purpose of Congress was not to protect rights and privileges under 14th amendment but to protect rights and privileges of citizens under Constitution and laws of the U.S." Williams v U.S. (1950, CA5 Fla) 179 F2d 656.
"Constitutional Liberty or Freedom. Such freedom as is enjoyed by the citizen of a country or state under the protection of its constitution (state/federal). The aggregate of those personal, civil, and political rights of the individual which are guaranteed by the Constitution (state/federal) and secured against invasion by the government or any of its agencies." Blacks Law Dictionary, sixth edition.
** TITLE 18 PART I CHAPTER 13 242. Deprivation of rights under color of law
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death."
Color of Law. The appearance or semblance, without the substance, of legal right. The misuse of power, possessed by virtue of state law and made possible only because wrongdoer is clothed with authority of state, is action taken under 'color of law.'" Blacks Law Dictionary, sixth edition.
** Implementing Regulations:
26 USC 780 5(a) "...the Secretary shall prescribe all needful rules and regulations for the enforcement of this title."
"For federal tax purposes, federal regulations govern." Dodd v. United States, 223 F Supp 785, Lyeth v. Hoey. 305 US 188, 59 S. Ct 155.
"... the Act's civil and criminal penalties attach only upon violation of regulation promulgated* by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone...The Government urges that since only those who violate these regulations (not the Code-JTM) may incur civil or criminal penalties, it is the actual regulation issued by the Secretary of the Treasury and not the broad authorizing language of the statute, which is to be tested against the standards of the 4th Amendment." Calif. Bankers Assoc. v. Shultz. 416 US 25,44, 39 L Ed 2d 812, 94 S Ct 1494. *Promulgate - to put into action.
7201 Tax Evasion, 7203 Willful failure to file, 6020 Substitute for Return, 6201 Assessment Authority, 6301 Collection Authority, 6303 Notice and Demand Authority, 7602 Summons Authority, 6321 Lien Authority, 6331-~6343 Levy and Distraint Authority, 6601 Interest on Under payments, 667 1 Assessment Penalties, ALL have NQ implementing Regulations pertaining to Individual Income Taxes (Part 1 taxes)! All implementing regulations are for mandatory alcohol, tobacco and firearms taxes!
"Although the relevant statute authorized the Secretary to impose such a duty, his implementing regulations did not do so. Therefore we held that there was no duty to disclose..." United States v. Murphy, 809 F.2d 142, 1431.
"The reporting act is not self-executing; it can impose no duties until implementing regulations have been promulgated." California Bankers Ass'n v Schultz, 416 U.S. 21, 26, 94 S. Ct. 1494, 1500, 39 L. Ed. 2d 812.
"Failure to adhere to agency regulations [by the IRS or other agency-JTM] may amount to denial of due process if regulations are required by constitution or statute..." Curley V. United States, 791 F. Supp.52.
"An Individual Cannot be Prosecuted for Violating the Act Unless He Violates Implementing Regulations.'- United States v. Reinis, 794 F. 2d 506, 508 (9th Cir. 1986) United States v. Murphy, 809 F.2d 1427 (9th Cir. 1987)
"Criminal penalties ...can attach only upon violation of regulations promulgated by the Secretary." U.S. v. Reinis, 794 F.2d 506
Conspiracy. Key 33(2). "Where regulations...did not impose duty to disclose information, failure to disclose was not conspiracy to defraud government." 18 USCA, 31 USCA~5311
United States. Key 34. "Individual cannot be prosecuted for violating Currency Reporting Act unless he violates implementing regulations." 31 U.S.C.A. 5311 et. seq.
"Because Congress has delegated to the Commissioner the power to promulgate "all needful rules and regulations for the enforcement of (the Internal Revenue Code) 26 U.S.C. 7805(a), we must defer to his regulatory interpretations of the Code so long as they are reasonable." National Muffler Dealers Assn.. Inc. United States, 440 U.S. 472, 476-477, 99 S. Ct. 1304, 1306-1307, 59 L. Ed. 2d 519
Internal Revenue. Key 3947. "Internal Revenue manual does not have force and effect of law..."
Because the Internal Revenue Code is broad and general in scope, the regulations provide the clarity that give the statute the force of law. Otherwise such statutes could be voided for vagueness.
"Due process requires that penal statutes define criminal offenses with sufficient clarity that ordinary person can understand what conduct is prohibited." U.S.C.A Const. Amend 5
Without the statute there is no authority for implementing a regulation and without the regulation, no civil or criminal penalties can be imposed. Further Regulations cannot change the statute but only clarify it.
"To the extent that the regulations implement the statute, they have the force and effect of law... The regulation implements the statute and cannot vitiate or change the statute..." Spreckles v. C.I.R. 119 F.2d, 667.
INTERNAL REVENUE MANUAL
CURLEY V U.S. 791 F. Supp 52 (E.D.N.Y. 1992), at 55
(6) "Plaintiff relies heavily on the Internal Revenue Manual ("IRM") in her argument that the assessment is procedurally invalid. However, the IRM does not have the force and effect of law." United States v. New York Telephone Co. 644 F. 2d 953 959 n. 10 (2d Cir. 1981). Since the IRM is not law, any alleged failure to adhere to its provisions will not necessarily result in an invalid assessment. See Foxman v. Renison 449 U.S. 993, 101 S. Ct. 530, 66 L.Ed. 2d 290 (1980). 449 U.S. 1119 101 S. Ct. 932, 66 L. Ed. 2d 848 (1981) Kopunek v Director of Internal Revenue, 528 F.Supp. 134, 137 (1981).
(7) However, failure to adhere to agency regulations may amount to a denial of due process if the regulations are required by the constitution or statute. Arzanipour v Immigration and Naturalization Service, 866 F. 2d 743, 746 (5th Cir. 1989).
In Bothke v. Fluor Engineers, 713, F.2d 1405 (1983), the U.S. Court of Appeals ruled that if a taxpayer has informed an IRS agent that he believes that there is an error in assessment and the agent continues levy action without first determining if the taxpayer's argument has merit, such agent losses immunity from a suit. Most IRS agents do not realize that if they act without authority, they are personally liable!
Respondent claims Petitioner was required to file 1040 returns for stated years, which is a self assessment:/P>
Assessment of tax is entirely a government function. The law makes no provision allowing people to assess themselves a tax. Girard Trust Bank v. U.S., 643 F.2d 725, 727
Electing the option of estimating a speculated tax and sending accompanying deposit via use of Form 1040, or should surmised assessment not be made by appropriate authority within the time restraints of three (3) years, reasonable assumption exists a tax is not owing. 26 USC Section 6501
"We believe that the holding of the court that money paid to the Internal Revenue Service prior to the imposition of a valid assessment is a deposit rather than a payment, should have the same meaning regardless whether it is the Government who seeks to preclude suit by the taxpayer or whether it is the taxpayer who seeks to recover a refund."
Estate of M. Karl GOETZ v US. 286 F. Supp 128, 131 (WD. MO. 1968).
IRS Restructuring and Reform Act of 1998 - Tax Regs in Plain English
3102 - Civil Damages for Collection Action
A. Provision covered: Section 3102 Civil Damages for Collection Action (LR.C. §~ 7433, 7430, 7426)
B. Background: Under prior law,. taxpayers could recover damages up to $1,000,000 under section 7433 for reckless or intentional disregard of the Code and regulations. Third parties and debtors in bankruptcy could not recover damages under section 7433. Also, under prior law, there was no exhaustion of administrative remedies requirement, although the courts could reduce the damages award if administrative remedies were not exhausted. Congress believed that expansion of the circumstances in which damages could be obtained from the Service was appropriate.
C. Change(s): The provision allows taxpayers to recover up to $100,000 in damages as the result of the negligent disregard of the Code or regulations by Service personnel. This provision also amends section 7426, regarding actions for wrongful levy, and allows third parties to recover damages up to $1,000,000 for reckless or intentional disregard of the Code or regulations, or up to $100,000 for negligent disregard of the Code or regulations.
1203 - Termination of Employment for Misconduct
A. Provision(s) covered: Section 1203, Termination of Employment for Misconduct
B. Background: This new provision was enacted in response to the widespread perception that IRS employees are not held fully accountable for improper conduct affecting taxpayers. The section provides that IRS employees must be charged with misconduct and terminated if there has been a judicial or final administrative determination that the employee committed any of the following acts or omissions:
1. willful failure to obtain the required approval signatures on documents authorizing the seizure of a taxpayer's home, personal belongings, or business asset;
2. providing a false statement under oath with respect to a material matter involving a taxpayer or taxpayer representative;
3. with respect to a taxpayer, taxpayer representative, or other employee of the Internal Revenue Service, the violation of any right under the Constitution of the United States;
The IRS has recently been corrected on the issue of all administrative orders it issues WITHOUT A COURT ORDER, which is virtually every order it issues:
"...absent an effort to seek enforcement through a federal court, IRS summonses apply no force to "taxpayers," and no consequence whatever can befall a taxpayer who refuses, ignores, or otherwise does not comply with an IRS summons until that summons is backed by a federal court order [a taxpayer] cannot be held in contempt, arrested, detained, or otherwise punished for refusing to comply with the original IRS summons, no matter the taxpayer's reasons, or lack of reasons for so refusing." (Schulz v. IRS, Case No. 04-0196-cv)
"We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen." Kilbourn v. Thompson, 103 U. S. 168, 196 (26: 377, 386).
In conjunction with this, the Court included ALL administrative actions by the IRS:
"Any legislative scheme that denies subjects an opportunity to seek judicial review of administrative orders except by refusing to comply, and so put themselves in immediate jeopardy of possible penalties 'so heavy as to prohibit resort to that remedy,' Oklahoma Operating Co. v. Love, 252 U.S. 331, 333 (1920), runs afoul of the due process requirements of the Fifth and Fourteenth Amendments." Schulz v. IRS and Anthony Roundtree.
"It will be noted that our decision here is based upon our holding the Government's lien was irregular, insufficient and valueless from a procedural standpoint for failure to serve the statutory notice and demand in connection therewith and for failure to comply with required procedures."
"In developing that conclusion many circumstances tend to show that not only were these required procedures not complied with, but that Coson was not a taxpayer and not liable for the tax to begin with..."
"... and what we hold here ... involved plaintiff may attack the Government lien for taxes as irregular or valueless 'from a procedural standpoint, and may raise the question whether the Government 'complied with required procedure*** or whether by error the assessment was made against a taxpayer other than the one intended."
"In holding as we do that the lack of proper notice or demand was fatal to acquisition of the government's lien against Cohon, the emphasis here is somewhat different than that employed by the trial judge who held that the assessment itself was void as against Coson because the taxes were never assessed as to Coson, the record of assessment in the office of the Bureau making no reference whatever to Coson. The government argues that there is no requirement that an assessment be made against any person. Although our decision as to the lack of proper notice or demand is sufficient to dispose of this case, it would appear that the trial court was right in holding the assessment was insufficient, for failure to comply with statutory requirements." (n. 17, page 464) U.S. v Coson, 286 F.2d 453 (9th, 1961) See also Hans Bothke v. Flour Engineers Construction, Inc, and Terry, 713 F.2d 1405 (9th, 1983)
"We think it clear that the term "assessment" referred to in this section of the Internal Revenue Code of 1954 has a technical meaning spelled out in the code and that meaning is binding on the court." U.S. v. Miller, C.A. Ind. 1963, 318 F. 2d 637, at 638, 639.
"Tax liability is a condition precedent to the demand. Merely demanding payment, even repeatedly, does not cause liability. For the condition precedent of liability to be met, there must be a lawful assessment... (Section 301.6203-1, title 26 CFR. Assessment... 1. Name, 2. ID number, 3. nature of assessment 4. year of assessment, 5. amount, 6. signature of assessment officer, 7. Verification under penalty of perjury or seal), either a voluntary one by the taxpayer (See Attachment A) or one procedurally proper by the IRS..." Bothke v. Flour, 713 F. 2d 1405, pg 1414, [14, 15]
Section 6203: "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."
Said request has been made with no response forthcoming from the IRS or Secretary.
The Court's decision in Bivens v. 6 unknown named federal agents 403 US 388, 91 SCT 1999, 29 LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages.