Attachment QQ: Such term also means a... | IRS Affidavit

Attachment QQ - Jeffrey Thomas Maehr

Notices of Lien/Levy from IRS are usually fraud and illegal:

26 U.S.C. 6332(c) Special rule for banks

"Any bank (as defined in section 408 (n)) shall surrender (subject to an attachment or execution under judicial process) any deposits (including interest thereon) in such bank only after 21 days after service of levy." (Emphasis theirs).

Additional Law: � 408 (n) Bank

For purposes of subsection (a)(2), the term "bank" means�

(1) any bank (as defined in section 581),

� 581. Definition of bank

For purposes of sections 582 and 584, the term "bank" means a bank or trust company incorporated and doing business under the laws of the United States (including laws relating to the District of Columbia) or of any State, a substantial part of the business of which consists of receiving deposits and making loans and discounts, or of exercising fiduciary powers similar to those permitted to national banks under authority of the Comptroller of the Currency, and which is subject by law to supervision and examination by State, Territorial, or Federal authority having supervision over banking institutions. Such term also means a domestic building and loan association.

In the Schulz v IRS case (Schulz v. IRS, Case No. 04-0196-cv), and subsequent ruling from the U.S. Court of Appeals for the Second Circuit, the court upheld its original ruling against any IRS summons as having power over citizens without a federal court order.

Most significantly, the Court held, relying on a 1920 decision by the United States Supreme Court, that the principles of due process apply to ALL IRS administrative orders and any levy or lien is an "administrative order" and therefore NOT a judicial action. We take that to mean the Court's order applies not only to IRS first party summonses, but also to IRS third party summonses, and to IRS levies and liens.

The court states:

"...the government appears to argue alternatively, or in combination, that: 1) the government may use the federal courts to punish taxpayers who disobey an IRS summons even if the summons is never enforced by court order; 2) if an IRS summons is enforced by a court order, the court may punish disobedience of the IRS summons before providing the taxpayer an opportunity to comply with the court's order; or 3) if an IRS summons is enforced by a court order, the court may punish disobedience of the IRS summons even if the taxpayer complies with the court' order. In our view, expressed in Schulz I, none of these proposals is consistent with the comprehensive tax-enforcement scheme in which 26 U.S.C. sections 7210, 7604(a) and 7604(b) are situated, constitutional due process, or the relevant precedents of this Court and the United States Supreme Court" [ page 5].

"...the IRS summons is administratively issued but its enforcement is only by federal court authority in an adversary proceeding affording the opportunity for challenge and complete protection to the witness." [page 9] (italics emphasis in the original).

In what may be the most significant sentence in the 13-page decision, the court stated:

"The rule of due process upon which we relied in Schulz I, and upon which we rely now, can be stated thus; 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." [Page 10].

Although the objects in contention in Schulz were IRS administrative summonses, it is unavoidable that the Due Process issues raised and articulated by the Court in Schulz have direct implication for all forms of routine IRS administrative process including liens, levies and seizures. This decision reiterates those constitutional principles.

The Court's reaffirmation of Schulz I is clear: any legislative scheme that forces a taxpayer to make a Hobson's choice" between either capitulating to an IRS administrative demand, or risk bearing the pains of IRS's wrath if they refuse to comply -- without access to judicial review, violates the Constitution.

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)).

I am 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.

(This is obvious Fraud by Concealment - JTM.)

(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.").