c/o 924 E. Stollsteimer Rd Certified Mail #: 7007-0710-0004-4779-2003
Pagosa Springs, Colorado 
April 23, 2008
U.S. District Court
111 S. 18th Plaza
Omaha, NE 68102
PETITION TO QUASH SUMMONS
Brief and Memorandum of Law
Declatory Relief Request
re: Summons to Capital One Bank, Custodian of Records, Subpoena Coordinator, P.O. Box 85032, Richmond, VA 23285. Jeffrey T. Maehr, Petitioner; U.S., Respondent.
Jeffrey T. Maehr, Pro Se, acting under Private Attorney General Laws, in cooperation with other Attorneys General, reporting investigative evidence to the U.S. Department of Justice, and depending on equal protection under the Constitution, The Judicial machinery of the Rule of Law, Rules of Evidence and Rules of Civil Procedure, comes now before this Honorable Court, and moves this Honorable Court to take Mandatory Judicial Notice under Federal Rule 201(d) of the following:
a. The United States Supreme Court, in Haines v Kerner 404 U.S. 519 (1972) stated that all litigants defending themselves must be afforded the opportunity to present their evidence and that the Court should look to the substance of the complaint rather than the form, and that a minimal amount of evidence is necessary to support contention of lack of good faith. Fortney v. U.S., C.A.9 (Nev.) 1995, 59 F.3d 117.
b) In Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998) (per curiam): Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.
c) Substantive federal rights are grounded in Federal Constitution and laws enacted by Congress and are not created by these rules or by a mere pleading of the rules. Weiner v. Bank of King of Perussia, D.C.Pa. 1973, 358 f.Supp. 684.
d) Substantive rights remain unaffected by these rules and will be enforced. Gil/son v. Vendome Petroleum Corporation, D.C.La. 1940, 35 Supp. 815.
e) The spirit of all these rules is to settle controversies upon their merits rather than to dismiss actions on technical grounds, to permit amendments liberally... Fierstein v. Piper Aircraft Corp., D.C.Pa. 1948, 79 F.Supp. 217.
f) It is contrary to spirit of these rules for decisions on merits to be avoided on basis of mere technicalities. Forman v. Davis, Mass.19632, 83 S.Ct. 227, 371 U.S. 178m 9 K,Ed2d 222, on remand 316 F.2d 254.
g) Court and litigants must follow these rules in same manner as they must obey a statute. Beasley v. U.S., D.C.S.C.1948, 81, F.Supp. 518
h) These rules have the same effect as a statute and are as binding upon the court as upon counsel. Barrezueta v. Sword S.S. Line, D.C.N.Y. 1939, 27 F.Supp. 935.
I) The congressional authority given Supreme Court to adopt these rules was limited to matters of procedure, and it was expressly provided that substantive rights should neither be abridged, enlarged nor modified. John R. Alley & Co. v. Federal Nat. Bank of Shawnee, Shawnee County, Okl., C.C.A. OkI. 1942, 124 F.2d 995.
j) Spirit of these rules is that technical requirements are abolished and that judgments should be founded on facts and not on formalistic defects. Builders Corp. of America v. U.S.,C.A.Cal. 1958, 259 F.2d 766.
k) "This Constitution, and the laws of the United States which shall be made in pursuance thereof;... shall be the supreme law of the land; and the judges in every state shall be bound thereby... The Senators and Representatives and members of the State legislature, and all executive and judicial officers of the United States and the several States, shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." The Constitution of the united States of America, Article VI, Cl 2, 3.
l) "The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution." Reid v Covert 354 US l, 1957.
m) A judge is an officer of the court, as well as are all attorneys. A state judge is a state judicial officer, paid by the State to act impartially and lawfully. A federal judge is a federal judicial officer, paid by the federal government to act impartially and lawfully. A judge is not the court. People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).
n) "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted." Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985). (See Attachment, labeled Exhibit G).
Petitioner disputes legal veracity of this summons and demands strict proof consonant with the Federal Rules of Evidence and Civil Procedure.
STATEMENT OF STANDING
Jeffrey T. Maehr - hereinafter Petitioner has standing to petition this court to quash the 3rd party IRS summonses (copy attached) for reason:
Petitioner has timely filed this petition, postmark attesting, within the 20-day period following the date of mailing of the Notices of summons, April 7, 2008. 7609(a)(2); Petitioner is the persons who is identified in the description of the records contained in the Summons on Bank of the West; Petitioner claims an interest relating to personal, private information being summonsed under Color of Law.
Congress wanted third-party record keeper provision of subsec. (a)(3) of this section to be construed broadly in order to give taxpayers every opportunity to voice their privacy interests when those interests are implicated. Fink v. U.S., E.D.Mo.1983, 578 F.Supp. 617.
This section permitting intervention of taxpayer when records held by a third-party record keeper are subpoenaed by the Internal Revenue Service should be broadly construed. U. S. v. New York Telephone Co., C.A.2 (N.Y.) 1982, 682 F.2d 313.
Strict compliance with terms of subsec. (b)(2) of this section is jurisdictional, since the United States is consenting to waive its sovereign immunity from suit in the area of issuance of such summonses. Yocum v. U.S., N.D.Ind.1984, 586 F.Supp. 317.
PETITION TO QUASH
Petitioner requests the third-party Summons to Bank of the West be Quashed based upon the following, under Rules of Civil Procedure, Affidavit, and Case law:
a) The IRS has no jurisdiction over Petitioner because IRS denies it is a Federal Agency, so it has no authority to be requesting personal information from any company I am privately contracted with: (See Attachment, labeled Exhibit A).
b) Internal Revenue Code is NOT positive law, and refers ONLY to those who have entered into an employment agreement with the U.S. government, which Petitioner has not, therefore the IRS has NO jurisdiction over this issue or my personal records anymore than Microsoft would have. Agents referring to IR Code (See Attachment, labeled Exhibit E).
c) Summons is facially void: Rules of Civil Procedure, Rule 4, requires a Judge s signature and stamp of the court, both of which are lacking in this summons, among other voiding deficiencies required by R.C.P. Rule 4., and the Agents are acting under the Color of Law, while they require Petitioner to comply with Rules of Civil Procedure, Rule 4. (See Attachment, labeled Exhibit J).
d) Agents Sothen and Gills (Herein known as Agents ), have not provided Petitioner with any documents verifying any facts at issue with Petitioner.
e) Agents are required by law to NOTICE me of their intent to contact third party companies/individuals, PRIOR to sending Summons, and they did not.
f) Petitioner has been in constant contact with the IRS for over 5 years, answering all correspondence, providing affidavit evidence, and requesting information and clarification of all issues, and the IRS has not responded to the affidavit or requests with anything but more frivolous requests for information, or hearsay testimony. IRS refusal to rebut Petitioner s Affidavit creates Prima Facie Evidence that the facts are deemed admitted as true on this and all related issues.
Supporting Case Law:
Non Rebutted Affidavits are Prima Facie Evidence in the Case , United States vs. Kis, 658 F.2d, 526, 536-337 (7th Cir. 1981); Cert Denied, 50 U.S. L.W. 2169; S.Ct. March 22, 1982. Indeed, no more than (Affidavits) is necessary to make the Prima Facie Case. Seitzer v. Seitzer, 80 Cal. Rptr. 688 Uncontested Affidavit taken as true in support of Summary Judgment. Melorich Builders v. The SUPERIOR COURT of San Bernardino County (Serbia) 207 Cal.Rptr. 47 (Cal.App.4 Dist. 1984) Uncontested Affidavit taken as true in Opposition of Summary Judgment.
"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... 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.
g) Agents have committed Fraud by Concealment: Agents are required by law to provide any third party Summoned, notice that unless Summons has Judge s signature and stamp of the court on the document, they are not legally required to respond, and to NOT do so is to coerce Summoned into breaking their affirmative duty to protect my personal, private information.
h) Agents have shown gross negligence and wanton disregard for already filed documents, which they are ignoring, or for which they did NOT perform Due Diligence, and their Higher Duty to obtain all facts already in record, including the Affidavit filed (See Attachment, all labeled Exhibit I - please note that Petitioner has not provided copies of all correspondence due to time and fund restraints, but has provided certified mail receipt copies showing delivery of other relevant material in attempts to correspond with the IRS).
I) The IRS has failed to provide the legally required Determination Letter regarding any tax liability status for years, 2004, 2005, 2006, and is in default. (See Attachment, labeled Exhibit B).
j) Petitioner's 4th Amendment protect is being violated without due cause or process: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Agents attempts to obtain petitioner s personal records from others Petitioner is contracted with is unreasonable, given the amount of good faith efforts Petitioner has shown toward communicating with the IRS.
k) The Paperwork Reduction Act (PRA) was specifically created to prevent or minimize this sort of response to unrelenting harassment and malicious prosecution and yet, Petitioner is being forced, yet again, to spend inordinate amounts of time and money responding to Agents frivolous attempts. This Motion to Quash Summons is but one of four Petitioner is having to prepare and file, in four separate states.
l) The government's power to investigate is not without limits. To obtain enforcement of a summons, the IRS must demonstrate the following elements, citing United States v. Powell, 379 U.S. 48, 57-59, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964):
-The investigation will be conducted pursuant to a legitimate purpose;
-The inquiry will be relevant to that purpose;
-The information sought is not already in the IRS' [s] possession;
-That the IRS has taken the administrative steps necessary to the issuance of a summons;
-That the IRS has not referred the case to the Department of Justice for criminal prosecution.
m) Petitioner claims bad faith by Agents as Petitioner has exercised his Statutory rights to receive information by having filed multiple requests (See affidavit and attached documents), under authority of the Privacy Act and FOIA, which the IRS remains in default in.
n) Petitioner claims bad faith by Agents who pursue disclosure of sensitive information, a significantly protectable interest, by Summonses absent verifying any prior lawful determination that the Petitioner is a taxpayer, which request has been made in the past and which was never produced. (See Attachment, labeled Exhibit C)
o) Agents have ignored a previous attempt by IRS Agent Kuxhausen to examine my personal records, and which Petitioner responded to with legal documentation for verification, and which agent Kuxhausen later discontinued said examination due to evidence and challenge. (See Attachment, labeled Exhibit D).
p) IRS non-responsiveness has kept this matter from being resolved, now for over 5 years, causing Petitioner stress and duress, and countless hours and many thousands of dollars to respond and go beyond responding, showing MORE than good faith, to seek complete factual information, which they have refused to provide.
q) This is completely disrespectful of the Court's resources, in forcing Petitioner to defend Petitioner's Constitutional Rights and Privacy from invasive measures by Agents who have not already done their jobs, and are fishing, causing Petitioner and others undue costs and anxiety, and are doing so under the color of law.
r) Agents are attempting to circumvent the Rule of Law, which is providing false information and force against the Summoned. In their complying with a void Summons, under duress and the Color of Law, third party companies could cause a crime against Petitioner to occur under 15 U.S.C., 6801, creating a future burden on the courts which surely will occur if Summoned party responds to this void Summons, and violate my privacy.
s) Petitioner has twice requested, as a last resort over the last few years, to have a hearing to determine all the issues and to review all evidence presented, and the IRS has failed to respond, or even acknowledge this request, nor have they provided ANY form of assessment, as required by law, through which petitioner may begin administrative remedies.
t) I am naming IRS contacts I've been forced to respond to over the past 5 years which are represented by the Certified mail receipts in attachment labeled Exhibit H: Agent Marvin Otero, Cincinnati, OH., unnamed Agents in IRS, Ogden, UT., Agent David Rehbein, in Farmington, NM., unnamed agents in Holtsville, NY., unnamed Agents in Fresno, CA., unnamed Agents in Boston, MA., unnamed Agents in Seattle, WA.
u) Agents provided cover letter with notice of Summons to 3rd parties, and provided recourse to intervene, but FAILED to provide adequate filing information which could allow a denial of the Petitioner's motion to Quash, thereby committing Fraud by Concealment, namely that it is required to file with the U.S. Attorney General, and the respective District Attorneys in the areas of those receiving Summons. (See Attachment, labeled Exhibit J).
Petitioner maintains they have met their burden to submit a minimal amount of evidence to support contention of civil procedure violations, Agents/IRS lack of good faith, potential fraud by Agents/IRS, and supporting Cause for Quashing third party Summons.
Do Now Request:
Citizen's of these United States have only the Rule of Law and the Constitution to govern this land. We are expected to know and comply with the law. In order to do that, we must read the law and study all facets of it to determine where we are liable. When one comes to find that the Law has been used maliciously against them, they have ONLY to resort to the law and Constitution, and the Judicial Machinery to find relief and to bring government s under the chains of the Constitution. My correspondence with the IRS over the past 5 years has only been met with threats, intimidation and actual theft of monies from my account, and with NO actual law or facts provided.. They present Prima Facie evidence that they have NO desire to comply with the law and to serve the public. Therefore, Petitioner requests the following:
1. The Honorable Court Grant this Petition to Quash the 3rd party IRS summons noticed to this court.
2. It is not now, nor has it ever been the intent of Petitioner to avoid any obligation Petitioner might lawfully and Constitutionally be subject to, to the best of Petitioners ability. In order that the Petitioner can willfully comply in good faith and with all due alacrity, Petitioner requests this Honorable Court to require the IRS/Agents be ordered to answer Petitioners Affidavit with factual, lawful answers to all questions, point by point, regarding all elements related to IRS authority and jurisdiction, income taxation and liability, and to do so within 21 days, considering they are claiming to act within the law and Constitution, therefore 21 days should be adequate time to prepare what they should already know and have on record. If no rebuttal response, or frivolous and incomplete response, is not forthcoming within that 21 day time, IRS will be ordered to publish in 4 major national new papers, their failings, or answers, to each and every IRS related point, and to provide adequate law and support for income taxation for private individuals.
3. Declatory Judgement that Petitioner is not a taxpayer as mislabeled by the IRS according to all existing evidence provided, and to remove all records related to any aspect of Petitioner s fraudulent taxpayer status with IRS:
"The revenue laws are a code or system in regulation of tax assessment and collection. They relate to taxpayers and not to non-taxpayers. The latter are without their scope. No procedure is prescribed for non-taxpayers 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. Persons who are not taxpayers are not within the system and can obtain no benefit by following the procedures prescribed for taxpayers..." United States Court of Claims, Economy Plumbing and Heating v. United States, 470 Fwd 585, at 589 (1972) (Emphasis mine).
4. Compensation for costs of time and expenses in responding to IRS void actions, to include costs for filing Petition, at 32 hours research and preparation, at $75 per hour. (See Attachment, labeled Exhibit K).
5. Injunctions against Agents/IRS from attempting any future attempts to circumvent the law and my rights, and cease and desist any and all correspondence, unless they can provide lawful, factual authenticated evidence that would bring me within IRS jurisdiction, such as being an employee of the U.S. Government.
6. Default Judgement with enforcement of Affidavit regarding financial claims on refunds fraudulently obtained from Petitioner by IRS without lawful authority. Refund based as stated in Affidavit, with interest, to be provided within 21 days of Judgement as described in Affidavit.
Enclosed: Petition to Quash, Attachments: A, B, C - Original Affidavit with supplementary documentation; D, E, F, G, H, I, J, K; Certificate of Mailing.
Respectfully submitted and dated this 23 day of April, 2008.
Jeffrey T. Maehr, Pro Se
924 E. Stollsteimer Rd
Pagosa Springs, CO 81147
I declare under penalty of perjury that to the best of my knowledge and belief, based on this testimony, that the statements therein are true and correct, and certify Jeffrey T. Maehr appeared before me with picture identification, and acknowledged this document before me on;
Date: __________________ /s/ ____________________________________________
(NOTARY PUBLIC'S JURAT)
See IRS Motion to Deny Petition to Quash which they responded to (one response out of 4 Petitions in 4 states, creating a default in the other three)
Summons in response to IRS Motion to Deny Petition above