By William Greene
I think it is risky business to point to the fact that the IRS is breaking some law, as we continue to stand up for the constitution by saying “Show Me the Law,” so it nice to see the U.S. Government Accountability Office (U.S. GAO) standing up there to do it for us for a change.
However, as I’ve tried to explain in the past, I think they need help though and believe that an answer might come from a “Citizens Grand Jury.” Yet, I suspect that there will be someone out here who will find some kind of error in my perception, and seek to set the record straight.
That being said, if you take the time to look at the GAO report, you'll find that the GAO reviewed a selection of IRS forms, and page 33, Table 4 of that report shows that, of the 474 approved forms, 0 (0%) had a “missing or incorrect” OMB number, 0 (0%) had a missing expiration date, and although the GAO reported that of the 474 forms reviewed 202 (43%) were "missing one or more notices", on page 34 the GAO report explains that "most of the agency’s noncompliance resulted from forms that did not cite the tax law that requires the information to be collected. OMB regulations … state that agencies are to cite the law or other authority whenever the collection of information is required to obtain or retain a benefit … or is mandatory (with civil or criminal sanctions imposed for failure to respond).”
In fact, the issue presented in the GAO report (again page 34) is that “… the following typical PRA notice on IRS forms omits the required reference to the law:
We ask for the information on this form to carry out the Internal Revenue laws
of the United States. You are required to give us the information. We need it to ensure that you are complying with these laws and to allow us to figure and collect the right amount of tax.”
The IRS’s justification for the missing “specific tax law requiring information to be reported” was give in the GAO report (again page 34) where “… the IRS Reports Clearance Officer stated that IRS’s burden estimation methodology increases the burden estimate when a specific law is mentioned in order to include the time required to read the law.”
WOW! The IRS's Justification for not stating the law is that it would be a "burden" because we might actually be "required to read the law." Additionally, although the GAO report which IRS officials espoused the notion that “… that citing the “Internal Revenue laws of the United States” provided adequate disclosure and that on many forms, it would be impractical to cite a specific law authorizing the collection…”, the GAO report reported despite such espoused notion, “… Nonetheless, the regulations require citation of the law so that respondents are fully informed. Until IRS corrects this language on the forms, respondents may not know what law is associated with the information requested.”
And that being said, once again, I think it is risky business to point to the fact that the IRS is breaking some law, as we stand up for the constitution by saying “Show Me the Law,” so it nice to see the U.S. Government Accountability Office (U.S. GAO) standing up there to do it for us for a change. I mean, I say this kind of tongue and cheek though, because the courts have a history of siding with the IRS, holding that "Congress did not enact the PRA’s public protection provision to allow OMB to abrogate any duty imposed by Congress." See United States v. Neff, 954 F.2d 698, 699 (11th Cir. 1992). Also, Salberg v. United States, 969 F.2d 379 (7th Cir. 1992); United States v. Dawes, 951 F.2d 1189 (10th Cir. 1991); United States v. Hicks, 947 F.2d 1356 (9th Cir. 1991); United States v. Wunder, 919 F.2d 34 (6th Cir. 1990).
Thus, I ask the reader to not get too excided over the fact that the GAO report indicates that the IRS is violating the law, for as noted on page 24a (United States v. Clayton, (5th Cir. 2007) (per curiam), cert. denied, case no. 07-904 (April 14, 2008) “… those courts that have examined the issue post-1995 have decided that the PRA does not invalidate the statutory requirement to file tax returns. Citing United States v. Ouwenga, 173 F. App’x 411, 417 (6th Cir. 2006); Alford v. United States, No. 3:02-CV-1719-M, 2002 WL 31415800 (N.D. Tex. Oct. 22, 2002); United States v. Foster, No. CRIM.97-700103JMRRLE, 1997 WL 685371 (D. Minn. May 27, 1997).
I mean, even though the courts of the past have implied that it is their duty to correctly interpret even the Acts of Congress in the context of the Constitution, as well as to enforce the Acts of the Congress that are deemed constitutional, when it comes to the IRS the modern day courts themselves also have a history of turning away from Acts passed unanimously by the Continental Congress, to kind of pick and choose, even when the People act to peaceably procure relief, as evidenced by WTP’s historic suit which was dismissed and the decision upon appeal was to treat the subject of an Acts of Congress as a “debate.” See We the People Found. v. United States, 485 F.3d 140 (D.C. Cir. 2007), with rehearing en banc denied (Aug. 3, 2007), certiorari denied (January 7, 2008), and certiorari denied without comment on February 25, 2008.
Moreover, when it comes to the IRS, the modern day courts themselves also have a history of turning away from Acts of Congress, to kind of pick and choose even ignore Causes of Action like that of the that IRS Officials being involved in the suppression of evidence submitted to the Senate Finance Committee (Exhibit 3), following which IRS Officials publicly announced that WTP Petitions were being responded to with enforcement actions (Exhibit 4). As such, when I ask the reader to not get too excided over the fact that the GAO report indicates that the IRS is violating the law, I pray that the above will perhaps make my statement that “I think they need help though and believe that an answer might come from a “Citizens Grand Jury” a bit clearer.
Tuesday, May 25, 2010
Hendrickson Rebuttle to a tax rat.
On May 19th, 2010, Pete Hendrickson sent this message to Bob Hurt, of the Florida Lawman group.
"You asked for a response to this ill-informed nonsense from "Pablo" (which you might have asked for before broadcasting his "analysis"...). Here are a few quick words:
"Pablo" (I'll dispense with the quote marks around the pseudonym behind which this fellow conceals his identity-- the reader will just have to imagine them through the rest of these comments) begins with the idiotic rhetorical question of "How was the DOJ able to declare that Mr. Hendrickson did in fact earn wages contrary to his first-hand knowledge and sworn testimony?"
It's a prosecution, Pablo! They can declare any damn thing they want. Frankly, if they BELIEVED what they "declared" here, they would have long since made an effort to assess taxes for these years. See http://losthorizons.com/PostCertsOfAssess.pdf. This rhetorical question should alert the reader from the very beginning that Pablo's screed is in service to a theory or argument engaged in a desperate search for convenient facts, and he is not unwilling to creatively "misunderstand" things in order to find some...
It would be nice if Pablo would actually read the material about which he presumes to comment. At the very least, he should have gotten right what the IRS did in response to my 2002 and 2003 filings, which was NOT "didn't believe for a second" or "go to court". The actual response to those filings was complete refunds-- the first in history, followed by four efforts to get my book out of circulation with "promotion of an abusive tax shelter" charges, all ultimately dismissed on the DoJ's own motions-- four more historic firsts.
Only after that failed was the hokey, evidence-free "civil complaint" launched in which, as Pablo conveniently forgets to mention, the government is trying to force me to replace my filings with others saying what the government needs for me to say in order to have a pretext for claiming I owe a tax. This recognition of the primacy of what is said on a form, rather than the mere use of any particular form, completely contradicts the misunderstanding that Pablo is trying to sell here, which is likely why he overlooks these facts when spinning out his fiction...
Pablo also should understand that my filings said nothing whatever about "employee" or "employer"-- these things are secondary. It is enough to respond to allegations of the payment of XX of "wages" with a rebuttal of XX of "wages". I don't have to explain myself, and didn't. Frankly, since nothing on my filings says anything about "employer" or "employee", Pablo's reference to this is inexplicable, unless it is just a cheap effort to twist (or invent) facts in order to serve his thesis.
Frankly, as I have pointed out ad nauseum, even those who ARE "employees" can be paid remuneration which doesn't qualify as "wages". Again, Pablo should actually read the things filed. He would see this prominently in my filings in the criminal case. Even the DoJ was forced to admit this point in its own briefs, and this point alone completely and dispositively eviscerates Pablo's entire arguments on the subject of the use of forms, the fact that withholding has taken place, and so on.
Indeed, he should take note of the fact that while Kim Halbrook was never called as a witness in the civil case (nor was anyone else, of course, as no testimony or other evidence was ever introduced in that pretense of a litigation) she WAS called as a witness in the criminal trial, but no examination such as he imagines took place. Instead, the government didn't ask her, or any other witness from the company I worked for, ANY such questions, neither in support of anything on any W-2, nor even about whether I was paid anything. It simply couldn't risk allowing the subject to face cross-examination.
Pablo goes on to make another idiotic assertion and conclusion about the civil case. Referring to Kim Halbrook, Pablo says: "She basically stated that her company paid Mr. Hendrickson wages." No, she didn't. She signed a DoJ-written affidavit attesting to the fact that the W-2 put into the record by the government was a true copy of the one in the file cabinet of the company at which she didn't even begin working until after some of the period in question had passed, and she gave no testimony subject to cross-examination at all. Her "affidavit" was nothing but hearsay about hearsay.
Pablo goes on to say: "The IRS moved for summary judgment shortly after this because, in their view, there were no justiciable facts in contest." This is either breath-taking naiveté, or deliberate disingenuousness (to put it in the kindest possible way). The IRS (actually the DoJ) moved for summary judgment because it felt it had a cooperative court that had been sitting on my immediate motions to dismiss and for other relief-- including jurisdictional challenges-- for months without a ruling at that point, and figured it might as well take its shot. Six more months would then go by before the court would grant the bogus MSJ on the same day that it finally ruled against my motions, and would do so by explicitly reversing the "burden of proof" rules for MSJs. As I pointed out in my petition to the SC:
A. The courts below have abused their discretion in the award of summary judgment to the government, and have thereby also committed an assault on the Seventh Article of Amendment to the United States Constitution.
The District Court granted the “U.S.’s” motion for a summary judgment in this case by making “findings of fact” which elevate all of the (hear-say) allegations presented by the “U.S.” to gospel and disregard entirely our sworn testimony to the contrary-- despite having no independent knowledge of these matters whatsoever, and alluding to none. The court then declares that, lo and behold! no genuine issue of fact exists and (based on the same “found facts”) summary judgment for the “U.S.” is appropriate! This is highly convenient to the “U.S.”, of course, but flatly violates the well-established doctrine regarding such motions:
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes, 398 U.S., at 158 -159”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
“[I]n ruling on a motion for summary judgment, the nonmoving party's evidence "is to be believed, and all justifiable inferences are to be drawn in [that party's] favor." Anderson , supra, at 255”
Hunt v. Cromartie, 526 U.S. 541 (1999)
It also flatly violates the admirable and accurate position well-expressed in Beaty v. United States, 937 F.2d 288 (6th Cir. 1991):
“A central tenet of our republic--a characteristic that separates us from totalitarian regimes throughout the world--is that the government and private citizens resolve disputes on an equal playing field in the courts. When citizens face the government in the federal courts, the job of the judge is to apply the law, not to bolster the government’s case.”
Frankly, it is just this sort of contrivance that the rules concerning summary judgment are designed to prevent, and that the 7th Amendment to the U.S. Constitution makes illegal by providing that the right of trial by jury shall be preserved. If permitted to favor one side in this fashion, any court could keep any case-- the outcome of which it wished to control-- from reaching a jury by making convenient “findings of fact” favoring one side, just as has been done by the District Court in this case. Nonetheless, when allegedly considering the matter de novo on appeal, the panel of the Circuit Court simply repeats the District Court’s bad behavior.
Perhaps the Appellate Court’s error results from confusion as to both who was the moving party in this case and as to the rules regarding summary judgment. Discussing those rules in its opinion, it says, "Thereafter, the nonmoving party must present significant probative evidence in support of the complaint to defeat the motion. The nonmoving party is required to show more than a metaphysical doubt as to the existence of a genuine issue of material fact.” (Citations omitted.) However, the “non-moving party” in this case were the defendants, who obviously do NOT need to “present significant probative evidence in support of the complaint to defeat the motion”; more significantly, the “non-moving party” is NEVER “required to show more than a metaphysical doubt as to the existence of a genuine issue of material fact” On the precise contrary, it is the MOVANT that must attempt to raise doubts as to the existence of an issue of material fact; the non-movant need merely show that there IS an issue of material fact in controversy.
In this case, a third party has alleged that “Event A” occurred, on the basis of which alleged event the “U.S.” argues that we are indebted to it. We have testified-- both long before this case began and directly in response to the motion for summary judgment-- that “Event A” did not occur. There can be no plainer “issue of material fact.”
Neither the District Court nor the Circuit Court have any first-hand knowledge whatever as to the occurrence of “Event A”, and thus have no basis upon which to make “findings of fact”, even if such findings were not the proper province of a jury in any case. Yet both courts presume to make such findings.
The courts below thus abuse their discretion and, without regard to the fact that the only proper disposition of this case is dismissal, do violence to the spirit of the 7th Amendment as well. The appellate Court compounds the abuse and that violence by punishing us with sanctions for invoking its supervisory authority over the District Court! This Honorable Court has plainly declared, “The evidence of the nonmovant is to be believed.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). We appealed a District Court ruling based on the straightforward meaning of this declaration, among other things, and the Appellate Court declares our appeal to be “frivolous” and punishes us with sanctions! We appeal to this Honorable Court for its protection from this abuse.
We feel obliged to observe that in addition to sharing the Circuit Court’s “confusion” about the rules concerning summary judgment, the District Court exhibited considerable “confusion” about matters of concrete fact throughout its Final Rulings. For example, in those rulings the court deliberately quotes one line of Peter Hendrickson’s book, ‘Cracking the Code- The Fascinating Truth About Taxation In America’ out of context so as to suggest that the book argues that income tax-related withholding only applies to federal workers. The book does contain that one line, but makes no such argument. Income tax-related withholding in other cases is discussed in depth in the book.
Similarly, the District Court refers to “the false and frivolous claims set forth in 'Cracking the Code' that only federal, state or local government workers are liable for the payment of federal income tax”; and “the assertion that wages do not constitute income for federal tax purposes”. No such claims are made in the book; in fact, the book specifically says otherwise in great detail.
Most egregiously, perhaps, the District Court makes the following declaration in its final ruling:
“The only new argument is that “the statutes invoked or relied upon by Plaintiff and the Court . . . are unconstitutional, being plainly violative of at least the ‘necessary and proper’ clause of the eighth section of Article One, and the First, Fifth, Seventh, Ninth, and Tenth Articles of Amendment to the U.S. Constitution.” (Defs.’ Mot. for Reconsideration at 9.)”
What we actually said in the referenced motion is:
4. Regarding Plaintiff’s requests for an injunction and coerced testimony and the Court’s related decisions, it is self-evident that to dictate what cannot be said is to dictate what must be said, or to impose silence. It is not necessary to discuss Plaintiff’s calculated mischaracterizations of what is said in Defendant Peter Hendrickson’s book or Plaintiff’s pretensions in suggesting that it possesses some mystic knowledge about the underlying meaning of our tax return testimony in order to observe that neither Plaintiff, nor anyone else on Earth, has the lawful authority to dictate the content of our testimony, or to impose silence, in the face of allegations concerning us, such as those on the “information returns” made so much of by Plaintiff in this case.
To whatever degree the statutes invoked or relied upon by Plaintiff and the Court can be construed to provide for such an injunction and coercion of testimony, those statutes are unconstitutional, being plainly violative of at least the “necessary and proper” clause of the eighth section of Article One, and the First, Fifth, Seventh, Ninth, and Tenth Articles of Amendment to the U.S. Constitution. Such efforts to dictate or control testimony also violate various federal criminal statutes regarding witness tampering and intimidation, as well as the fundamental principles of due process.
The very fact that Plaintiff has sought such an injunction, and a coerced change in testimony we have already made, is a plain acknowledgment that Plaintiff has no legal basis for disputing the freely-made testimony on our returns. The same plain truth is revealed by Plaintiff’s inability to carry its burden of proof throughout this contest, and its failure to even try to do so. Plaintiff CANNOT substantiate the allegations made on the “information returns” upon which it relies, and therefore seeks to prevent those allegations from being rebutted.
It is not for us to say whether these mis-statements and contrivances are calculated to plant false notions about our arguments and positions in the minds of those who read only the rulings by the court and not the actual materials we filed in the proceedings below, and to suggest that we are “tax protestors”. However, if left unaddressed, these mis-statements will leave such false notions. Therefore, we bring them to this Honorable Court’s attention here.
Returning to Pablo's errant thesis: he should have read my posts in the last few newsletters of the following:
THOSE IN THE "TAX HONESTY" COMMUNITY who persist with nonsense about the use of 1040s or 4852s as amounting to inherent, adverse "admissions" (and those confronted with this nonsense) should take careful note of the fact that no effort was made by the DoJ to argue such a thing in its "response", even while it DID argue that my having not explicitly rebutted my receipt of "wages" on my pre-CtC-research filings amounted to such admissions...
Its arguments in this regard were futile, as my reply makes clear. But the point here is that the DoJ evinces a definite interest in trying to make a case that I made admissions supporting its allegations but only tries to do so by making the one argument, and not the other.
It is thus clear that even the DoJ won't go so far as to venture the absurd proposition that the use of forms specified by its own laws as those with which allegations of the conduct of taxable activities are rebutted somehow constitutes evidence that taxable activities WERE conducted, or makes the user into some kind of entity whose every economic act or gain is subject to the tax. Had that kind of twisted notion been viable, the DoJ would have simply pointed out that I used such forms in, and concerning, the years of the charged offenses, and that would be that.
The agency does not, and in fact, does the virtual opposite. It argues that because I FAILED to deploy 4852s in my earlier filings to explicitly rebut the characterization of my earnings as "wages", I should be deemed to have admitted them to be (just as is pointed out in CtC...).
Similarly, where it makes a reference to my completion of W-4s, the DoJ does so not with the assertion that my completion and submission of such forms made me into an "employee", but rather by suggesting that my doing so indicated that I "accepted the characterization" of myself as an "employee" (and thus the jury could conclude that I was an employee and my remuneration was "wages"). Unfortunately for this argument, it was the government's burden to actually try and prove that I really DID receive "wages", if it could-- not just paint a picture from which something theoretically COULD be concluded (but hey, when it's all you got...). Further, the last W-4 I submitted prior to the period involved in these charges was accompanied by documents making clear that I DID NOT "accept the characterization" of myself as an "employee" and my earnings as "wages".
But the larger point is that this riff is just another example of the principles and legal realities pointed out in CtC, and is NOT an argument that the filling out and/or submission of the forms itself made anything into a reality, or even just into an unrebuttable presumption.
PRECISELY THE SAME POINT APPLIES to the "citizenship/residency" (c/r) nonsense persistently flogged throughout the community by those seeking to distract Americans away from the liberating truth revealed in CtC and keep them from lending their strength to the one effort that will win this war against the lies about the tax-- standing up and standing firm on behalf of that truth, while spreading the word...
That ridiculous "c/r" argument holds that merely by being (or allowing or encouraging oneself to be deemed) a "United States citizen" or "resident" (sometimes viewed as "citizenship or residency" in the "federal zone"), one's earnings are all transformed into profits from the exercise of some federal function or prerogative. The underlying "reasoning" here is that "United States citizenship or residency" is a privilege granted by the United States, and subsequent economic activity while enjoying this "privilege" is therefore taxable.
Writing about this just gave me a great idea! I'll just grant my neighbors the privilege of citizenship of "Hendricksonland", and start collecting taxes from them. If any of them refuse to pay, I'll sue, and just quietly explain to the judge that the protestor is my citizen, that being so is a privilege, and that I've laid a tax on all the economic activity of anyone to whom I've extended a privilege, based on the reasoning that the "privilege" is a sort that simply hangs on them 24/7, and that therefore anything they do at any time is facilitated by that "privilege" and I can claim a piece of its outcome by right.
Or maybe I'll be subtle.
I'll send my neighbors notes indicating that unless they tell me not to, by returning the form I provide for that purpose, I will cut their lawns this summer and bill them accordingly. Then, if they don't reply, I'll presume them to have agreed, and enforce the charges accordingly (and who knows, perhaps I'll even actually cut some of their lawn). If they DO reply--even just to say "No!"-- I'll deem them to have admitted to being my citizens, or residents on my property, by virtue of their use of my reply form to decline the "service agreement" (and in either case because they never deny being my citizens or residents, for which no means for doing so will be provided or explained, in any case), and I'll take the charge from them as a "tax" of a portion of all their economic activity, based on the reasoning outlined above...
TO RETURN TO SERIOUSNESS, the proponents/injectors of this nonsense hope that their marks will forget that unapportioned capitations remain prohibited, and that as the Supreme Court clearly points out and/or upholds in many cases over a century-and-a-half of relevant jurisprudence, the government can't evade this prohibition by crafting a tax scheme that effectively amounts to an unapportioned capitation, while pretending that it isn't one, and is just an application of its excise authority on the "privilege" of earning money as a "citizen" or "resident" of the "United States (however that latter term is defined). (In fact, the court has flatly said that all Constitutional prohibitions apply even to those who really are citizens and/or residents of its territories and possessions. See http://losthorizons.com/comment/CitizenshipJuriesVoting14th.pdf for an extended discussion and case-law.)
The DoJ isn't so bold as to make this ridiculous argument, even while it finds itself compelled to try the equally lame argument that, "He didn't [explicitly] deny that his earnings were "wages" back in the '90s, your honor, so he must have been lying when he began [explicitly] saying said he didn't believe that they were starting in 2002!" As in the case of the "use of government forms" issue, if the government actually operated on the basis of the "c/r" concept, the DoJ would never have bothered with the argument it DID attempt, and would have simply said, "Hendrickson hasn't argued that he isn't a citizen or resident of the United States, your honor, and therefore, since the law imposes a tax on all income of any citizen or resident..."
THAT THE DoJ DOES NOT MAKE THIS ARGUMENT (or anything like it, such as arguments involving Social Security numbers, or whatever other distracting notions not found in CtC, WGRaM or on non-forum pages at losthorizons.com clutter up the landscape) must be accorded its proper significance. By the same token, what the DoJ DOES argue, and the conformity of that argument with what is pointed out in CtC, must also be accorded its proper significance.
Finally (because I can't take the time to parse out all the errors in this well-meant but disturbingly ill-informed "analysis"), Pablo should read my motions on the "person" issue, rather than imagine himself to know what this issue is about by osmosis (or whatever he did rely upon in lieu of study). All of those motions are posted, and none of them are very long.
An evening of studious attention would make a world of difference in the quality of future analysis. The "person definition at 7343 is NOT one met by merely being an "employee"-- it hinges on being an "employee under a duty (as a fiduciary) to complete and subscribe a form on behalf of a corporation or partnership (or other entity of like kind or class)-- a definition that was completely and tellingly evaded by the government and court, both of which lamely tried to argue that the "person" definition just meant "a person" as defined in the dictionary.
Were Pablo correct in his various notions about this subject, these actors would just have said, "Hey, you're an "employee", so you're covered". Nothing of the sort was attempted.
Pablo needs to dig deep and come to grips with the fact that this trial, like the bogus civil case in which the court was reduced to actually reversing the "motion for summary judgment" rules-- and actually say them backwards, on paper-- in the refused for publication appellate ruling-- are just corrupt efforts to overcome the complete and correct truth about the tax revealed in CtC.
In short, Pablo needs to stop his speculations and "analyses" and spend his time reading what I present to be read by those who want to know and understand what's going on, and why. I really wish he would, because I still believe he's a good and valuable man, but he is actually doing much more harm than good right now.
-Pete
--
"You asked for a response to this ill-informed nonsense from "Pablo" (which you might have asked for before broadcasting his "analysis"...). Here are a few quick words:
"Pablo" (I'll dispense with the quote marks around the pseudonym behind which this fellow conceals his identity-- the reader will just have to imagine them through the rest of these comments) begins with the idiotic rhetorical question of "How was the DOJ able to declare that Mr. Hendrickson did in fact earn wages contrary to his first-hand knowledge and sworn testimony?"
It's a prosecution, Pablo! They can declare any damn thing they want. Frankly, if they BELIEVED what they "declared" here, they would have long since made an effort to assess taxes for these years. See http://losthorizons.com/PostCertsOfAssess.pdf. This rhetorical question should alert the reader from the very beginning that Pablo's screed is in service to a theory or argument engaged in a desperate search for convenient facts, and he is not unwilling to creatively "misunderstand" things in order to find some...
It would be nice if Pablo would actually read the material about which he presumes to comment. At the very least, he should have gotten right what the IRS did in response to my 2002 and 2003 filings, which was NOT "didn't believe for a second" or "go to court". The actual response to those filings was complete refunds-- the first in history, followed by four efforts to get my book out of circulation with "promotion of an abusive tax shelter" charges, all ultimately dismissed on the DoJ's own motions-- four more historic firsts.
Only after that failed was the hokey, evidence-free "civil complaint" launched in which, as Pablo conveniently forgets to mention, the government is trying to force me to replace my filings with others saying what the government needs for me to say in order to have a pretext for claiming I owe a tax. This recognition of the primacy of what is said on a form, rather than the mere use of any particular form, completely contradicts the misunderstanding that Pablo is trying to sell here, which is likely why he overlooks these facts when spinning out his fiction...
Pablo also should understand that my filings said nothing whatever about "employee" or "employer"-- these things are secondary. It is enough to respond to allegations of the payment of XX of "wages" with a rebuttal of XX of "wages". I don't have to explain myself, and didn't. Frankly, since nothing on my filings says anything about "employer" or "employee", Pablo's reference to this is inexplicable, unless it is just a cheap effort to twist (or invent) facts in order to serve his thesis.
Frankly, as I have pointed out ad nauseum, even those who ARE "employees" can be paid remuneration which doesn't qualify as "wages". Again, Pablo should actually read the things filed. He would see this prominently in my filings in the criminal case. Even the DoJ was forced to admit this point in its own briefs, and this point alone completely and dispositively eviscerates Pablo's entire arguments on the subject of the use of forms, the fact that withholding has taken place, and so on.
Indeed, he should take note of the fact that while Kim Halbrook was never called as a witness in the civil case (nor was anyone else, of course, as no testimony or other evidence was ever introduced in that pretense of a litigation) she WAS called as a witness in the criminal trial, but no examination such as he imagines took place. Instead, the government didn't ask her, or any other witness from the company I worked for, ANY such questions, neither in support of anything on any W-2, nor even about whether I was paid anything. It simply couldn't risk allowing the subject to face cross-examination.
Pablo goes on to make another idiotic assertion and conclusion about the civil case. Referring to Kim Halbrook, Pablo says: "She basically stated that her company paid Mr. Hendrickson wages." No, she didn't. She signed a DoJ-written affidavit attesting to the fact that the W-2 put into the record by the government was a true copy of the one in the file cabinet of the company at which she didn't even begin working until after some of the period in question had passed, and she gave no testimony subject to cross-examination at all. Her "affidavit" was nothing but hearsay about hearsay.
Pablo goes on to say: "The IRS moved for summary judgment shortly after this because, in their view, there were no justiciable facts in contest." This is either breath-taking naiveté, or deliberate disingenuousness (to put it in the kindest possible way). The IRS (actually the DoJ) moved for summary judgment because it felt it had a cooperative court that had been sitting on my immediate motions to dismiss and for other relief-- including jurisdictional challenges-- for months without a ruling at that point, and figured it might as well take its shot. Six more months would then go by before the court would grant the bogus MSJ on the same day that it finally ruled against my motions, and would do so by explicitly reversing the "burden of proof" rules for MSJs. As I pointed out in my petition to the SC:
A. The courts below have abused their discretion in the award of summary judgment to the government, and have thereby also committed an assault on the Seventh Article of Amendment to the United States Constitution.
The District Court granted the “U.S.’s” motion for a summary judgment in this case by making “findings of fact” which elevate all of the (hear-say) allegations presented by the “U.S.” to gospel and disregard entirely our sworn testimony to the contrary-- despite having no independent knowledge of these matters whatsoever, and alluding to none. The court then declares that, lo and behold! no genuine issue of fact exists and (based on the same “found facts”) summary judgment for the “U.S.” is appropriate! This is highly convenient to the “U.S.”, of course, but flatly violates the well-established doctrine regarding such motions:
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes, 398 U.S., at 158 -159”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
“[I]n ruling on a motion for summary judgment, the nonmoving party's evidence "is to be believed, and all justifiable inferences are to be drawn in [that party's] favor." Anderson , supra, at 255”
Hunt v. Cromartie, 526 U.S. 541 (1999)
It also flatly violates the admirable and accurate position well-expressed in Beaty v. United States, 937 F.2d 288 (6th Cir. 1991):
“A central tenet of our republic--a characteristic that separates us from totalitarian regimes throughout the world--is that the government and private citizens resolve disputes on an equal playing field in the courts. When citizens face the government in the federal courts, the job of the judge is to apply the law, not to bolster the government’s case.”
Frankly, it is just this sort of contrivance that the rules concerning summary judgment are designed to prevent, and that the 7th Amendment to the U.S. Constitution makes illegal by providing that the right of trial by jury shall be preserved. If permitted to favor one side in this fashion, any court could keep any case-- the outcome of which it wished to control-- from reaching a jury by making convenient “findings of fact” favoring one side, just as has been done by the District Court in this case. Nonetheless, when allegedly considering the matter de novo on appeal, the panel of the Circuit Court simply repeats the District Court’s bad behavior.
Perhaps the Appellate Court’s error results from confusion as to both who was the moving party in this case and as to the rules regarding summary judgment. Discussing those rules in its opinion, it says, "Thereafter, the nonmoving party must present significant probative evidence in support of the complaint to defeat the motion. The nonmoving party is required to show more than a metaphysical doubt as to the existence of a genuine issue of material fact.” (Citations omitted.) However, the “non-moving party” in this case were the defendants, who obviously do NOT need to “present significant probative evidence in support of the complaint to defeat the motion”; more significantly, the “non-moving party” is NEVER “required to show more than a metaphysical doubt as to the existence of a genuine issue of material fact” On the precise contrary, it is the MOVANT that must attempt to raise doubts as to the existence of an issue of material fact; the non-movant need merely show that there IS an issue of material fact in controversy.
In this case, a third party has alleged that “Event A” occurred, on the basis of which alleged event the “U.S.” argues that we are indebted to it. We have testified-- both long before this case began and directly in response to the motion for summary judgment-- that “Event A” did not occur. There can be no plainer “issue of material fact.”
Neither the District Court nor the Circuit Court have any first-hand knowledge whatever as to the occurrence of “Event A”, and thus have no basis upon which to make “findings of fact”, even if such findings were not the proper province of a jury in any case. Yet both courts presume to make such findings.
The courts below thus abuse their discretion and, without regard to the fact that the only proper disposition of this case is dismissal, do violence to the spirit of the 7th Amendment as well. The appellate Court compounds the abuse and that violence by punishing us with sanctions for invoking its supervisory authority over the District Court! This Honorable Court has plainly declared, “The evidence of the nonmovant is to be believed.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). We appealed a District Court ruling based on the straightforward meaning of this declaration, among other things, and the Appellate Court declares our appeal to be “frivolous” and punishes us with sanctions! We appeal to this Honorable Court for its protection from this abuse.
We feel obliged to observe that in addition to sharing the Circuit Court’s “confusion” about the rules concerning summary judgment, the District Court exhibited considerable “confusion” about matters of concrete fact throughout its Final Rulings. For example, in those rulings the court deliberately quotes one line of Peter Hendrickson’s book, ‘Cracking the Code- The Fascinating Truth About Taxation In America’ out of context so as to suggest that the book argues that income tax-related withholding only applies to federal workers. The book does contain that one line, but makes no such argument. Income tax-related withholding in other cases is discussed in depth in the book.
Similarly, the District Court refers to “the false and frivolous claims set forth in 'Cracking the Code' that only federal, state or local government workers are liable for the payment of federal income tax”; and “the assertion that wages do not constitute income for federal tax purposes”. No such claims are made in the book; in fact, the book specifically says otherwise in great detail.
Most egregiously, perhaps, the District Court makes the following declaration in its final ruling:
“The only new argument is that “the statutes invoked or relied upon by Plaintiff and the Court . . . are unconstitutional, being plainly violative of at least the ‘necessary and proper’ clause of the eighth section of Article One, and the First, Fifth, Seventh, Ninth, and Tenth Articles of Amendment to the U.S. Constitution.” (Defs.’ Mot. for Reconsideration at 9.)”
What we actually said in the referenced motion is:
4. Regarding Plaintiff’s requests for an injunction and coerced testimony and the Court’s related decisions, it is self-evident that to dictate what cannot be said is to dictate what must be said, or to impose silence. It is not necessary to discuss Plaintiff’s calculated mischaracterizations of what is said in Defendant Peter Hendrickson’s book or Plaintiff’s pretensions in suggesting that it possesses some mystic knowledge about the underlying meaning of our tax return testimony in order to observe that neither Plaintiff, nor anyone else on Earth, has the lawful authority to dictate the content of our testimony, or to impose silence, in the face of allegations concerning us, such as those on the “information returns” made so much of by Plaintiff in this case.
To whatever degree the statutes invoked or relied upon by Plaintiff and the Court can be construed to provide for such an injunction and coercion of testimony, those statutes are unconstitutional, being plainly violative of at least the “necessary and proper” clause of the eighth section of Article One, and the First, Fifth, Seventh, Ninth, and Tenth Articles of Amendment to the U.S. Constitution. Such efforts to dictate or control testimony also violate various federal criminal statutes regarding witness tampering and intimidation, as well as the fundamental principles of due process.
The very fact that Plaintiff has sought such an injunction, and a coerced change in testimony we have already made, is a plain acknowledgment that Plaintiff has no legal basis for disputing the freely-made testimony on our returns. The same plain truth is revealed by Plaintiff’s inability to carry its burden of proof throughout this contest, and its failure to even try to do so. Plaintiff CANNOT substantiate the allegations made on the “information returns” upon which it relies, and therefore seeks to prevent those allegations from being rebutted.
It is not for us to say whether these mis-statements and contrivances are calculated to plant false notions about our arguments and positions in the minds of those who read only the rulings by the court and not the actual materials we filed in the proceedings below, and to suggest that we are “tax protestors”. However, if left unaddressed, these mis-statements will leave such false notions. Therefore, we bring them to this Honorable Court’s attention here.
Returning to Pablo's errant thesis: he should have read my posts in the last few newsletters of the following:
THOSE IN THE "TAX HONESTY" COMMUNITY who persist with nonsense about the use of 1040s or 4852s as amounting to inherent, adverse "admissions" (and those confronted with this nonsense) should take careful note of the fact that no effort was made by the DoJ to argue such a thing in its "response", even while it DID argue that my having not explicitly rebutted my receipt of "wages" on my pre-CtC-research filings amounted to such admissions...
Its arguments in this regard were futile, as my reply makes clear. But the point here is that the DoJ evinces a definite interest in trying to make a case that I made admissions supporting its allegations but only tries to do so by making the one argument, and not the other.
It is thus clear that even the DoJ won't go so far as to venture the absurd proposition that the use of forms specified by its own laws as those with which allegations of the conduct of taxable activities are rebutted somehow constitutes evidence that taxable activities WERE conducted, or makes the user into some kind of entity whose every economic act or gain is subject to the tax. Had that kind of twisted notion been viable, the DoJ would have simply pointed out that I used such forms in, and concerning, the years of the charged offenses, and that would be that.
The agency does not, and in fact, does the virtual opposite. It argues that because I FAILED to deploy 4852s in my earlier filings to explicitly rebut the characterization of my earnings as "wages", I should be deemed to have admitted them to be (just as is pointed out in CtC...).
Similarly, where it makes a reference to my completion of W-4s, the DoJ does so not with the assertion that my completion and submission of such forms made me into an "employee", but rather by suggesting that my doing so indicated that I "accepted the characterization" of myself as an "employee" (and thus the jury could conclude that I was an employee and my remuneration was "wages"). Unfortunately for this argument, it was the government's burden to actually try and prove that I really DID receive "wages", if it could-- not just paint a picture from which something theoretically COULD be concluded (but hey, when it's all you got...). Further, the last W-4 I submitted prior to the period involved in these charges was accompanied by documents making clear that I DID NOT "accept the characterization" of myself as an "employee" and my earnings as "wages".
But the larger point is that this riff is just another example of the principles and legal realities pointed out in CtC, and is NOT an argument that the filling out and/or submission of the forms itself made anything into a reality, or even just into an unrebuttable presumption.
PRECISELY THE SAME POINT APPLIES to the "citizenship/residency" (c/r) nonsense persistently flogged throughout the community by those seeking to distract Americans away from the liberating truth revealed in CtC and keep them from lending their strength to the one effort that will win this war against the lies about the tax-- standing up and standing firm on behalf of that truth, while spreading the word...
That ridiculous "c/r" argument holds that merely by being (or allowing or encouraging oneself to be deemed) a "United States citizen" or "resident" (sometimes viewed as "citizenship or residency" in the "federal zone"), one's earnings are all transformed into profits from the exercise of some federal function or prerogative. The underlying "reasoning" here is that "United States citizenship or residency" is a privilege granted by the United States, and subsequent economic activity while enjoying this "privilege" is therefore taxable.
Writing about this just gave me a great idea! I'll just grant my neighbors the privilege of citizenship of "Hendricksonland", and start collecting taxes from them. If any of them refuse to pay, I'll sue, and just quietly explain to the judge that the protestor is my citizen, that being so is a privilege, and that I've laid a tax on all the economic activity of anyone to whom I've extended a privilege, based on the reasoning that the "privilege" is a sort that simply hangs on them 24/7, and that therefore anything they do at any time is facilitated by that "privilege" and I can claim a piece of its outcome by right.
Or maybe I'll be subtle.
I'll send my neighbors notes indicating that unless they tell me not to, by returning the form I provide for that purpose, I will cut their lawns this summer and bill them accordingly. Then, if they don't reply, I'll presume them to have agreed, and enforce the charges accordingly (and who knows, perhaps I'll even actually cut some of their lawn). If they DO reply--even just to say "No!"-- I'll deem them to have admitted to being my citizens, or residents on my property, by virtue of their use of my reply form to decline the "service agreement" (and in either case because they never deny being my citizens or residents, for which no means for doing so will be provided or explained, in any case), and I'll take the charge from them as a "tax" of a portion of all their economic activity, based on the reasoning outlined above...
TO RETURN TO SERIOUSNESS, the proponents/injectors of this nonsense hope that their marks will forget that unapportioned capitations remain prohibited, and that as the Supreme Court clearly points out and/or upholds in many cases over a century-and-a-half of relevant jurisprudence, the government can't evade this prohibition by crafting a tax scheme that effectively amounts to an unapportioned capitation, while pretending that it isn't one, and is just an application of its excise authority on the "privilege" of earning money as a "citizen" or "resident" of the "United States (however that latter term is defined). (In fact, the court has flatly said that all Constitutional prohibitions apply even to those who really are citizens and/or residents of its territories and possessions. See http://losthorizons.com/comment/CitizenshipJuriesVoting14th.pdf for an extended discussion and case-law.)
The DoJ isn't so bold as to make this ridiculous argument, even while it finds itself compelled to try the equally lame argument that, "He didn't [explicitly] deny that his earnings were "wages" back in the '90s, your honor, so he must have been lying when he began [explicitly] saying said he didn't believe that they were starting in 2002!" As in the case of the "use of government forms" issue, if the government actually operated on the basis of the "c/r" concept, the DoJ would never have bothered with the argument it DID attempt, and would have simply said, "Hendrickson hasn't argued that he isn't a citizen or resident of the United States, your honor, and therefore, since the law imposes a tax on all income of any citizen or resident..."
THAT THE DoJ DOES NOT MAKE THIS ARGUMENT (or anything like it, such as arguments involving Social Security numbers, or whatever other distracting notions not found in CtC, WGRaM or on non-forum pages at losthorizons.com clutter up the landscape) must be accorded its proper significance. By the same token, what the DoJ DOES argue, and the conformity of that argument with what is pointed out in CtC, must also be accorded its proper significance.
Finally (because I can't take the time to parse out all the errors in this well-meant but disturbingly ill-informed "analysis"), Pablo should read my motions on the "person" issue, rather than imagine himself to know what this issue is about by osmosis (or whatever he did rely upon in lieu of study). All of those motions are posted, and none of them are very long.
An evening of studious attention would make a world of difference in the quality of future analysis. The "person definition at 7343 is NOT one met by merely being an "employee"-- it hinges on being an "employee under a duty (as a fiduciary) to complete and subscribe a form on behalf of a corporation or partnership (or other entity of like kind or class)-- a definition that was completely and tellingly evaded by the government and court, both of which lamely tried to argue that the "person" definition just meant "a person" as defined in the dictionary.
Were Pablo correct in his various notions about this subject, these actors would just have said, "Hey, you're an "employee", so you're covered". Nothing of the sort was attempted.
Pablo needs to dig deep and come to grips with the fact that this trial, like the bogus civil case in which the court was reduced to actually reversing the "motion for summary judgment" rules-- and actually say them backwards, on paper-- in the refused for publication appellate ruling-- are just corrupt efforts to overcome the complete and correct truth about the tax revealed in CtC.
In short, Pablo needs to stop his speculations and "analyses" and spend his time reading what I present to be read by those who want to know and understand what's going on, and why. I really wish he would, because I still believe he's a good and valuable man, but he is actually doing much more harm than good right now.
-Pete
--
Tuesday, May 18, 2010
Challenge to IRS: Does OMB apply? US V Springer case.
US V Springer. 2010.
On May 2nd, Lindsey Springer wrote:
" I realize there are many people who simply do not have time to understand the issues I am raising. I will herein provide a more simple understanding of the issues.
"For most of you, only 2 issues I am raising matter. The first has to do with Form 1040 and whether that form or any other tax form are subject to the Paperwork Reduction Act. Subsidiary to this question is whether the Form 1040 complies. If it does not, then you cannot be penalized for anything that involves a failure to file such forms.
"The Tax Division has been propagandizing everything it can to convince the public that the Form 1040 and the requirement to same is not subject to the PRA. Every United States Circuit Court who has addressed the issue has repeatedly said Form 1040 MUST comply. There are a few cases in passing that said the law which requires use of the Secretary’s tax forms withstands the public protection provision at Title 44 Section 3512.
"Section 3512 begins "Not withstanding any other provision of law, no person shall be subject to any penalty...". Those few cases referenced above are completely in opposition to the Supreme Court and 10th Circuit holdings on the subject of the PRA.
"At my trial, for example, the Tax Division argued before the jury that although the Dole decision in 1990 by the Supreme Court said "tax forms" were "typical" information collection requests subject to the PRA, and that no where in the Dole decision was the Form 1040 ever specifically mentioned. That argument will not withstand scrutiny at the 10th Circuit,. The 10th Circuit has repeatedly told the Tax Division that Form 1040 is subject to the PRA. The Tax Division continues to tell the public my PRA claims are "legalistic gibberish".
"The Tax Division told judge Friot on May 6 2010 that I have been repeatedly told numerous times that my specific PRA claims are frivolous and meritless. The last time Tax Division made that argument in the 10th Circuit, they were told by the 10th Circuit for the 1st time ever, they were making a frivolous argument to that court. The frivolous argument found by the 10th Circuit, that Tax Division maintains, was that they(10th Circuit) had ruled on the merits of my PRA claims. Again, the 10th circuit told the Tax Division that their claim was false.
"The reason why the Tax Divisions continues to maintain the argument they made in Springer v. the Commissioner, 08-9004 is because at the time I was indicted, the 10th Circuit had not entered it’s published decision extending from 08-9004. That decision came out 8-31-09. Recently, the 10th Circuit ordered the Tax Division to address each issue in my motion for release from jail pending appeal on or before May 19,2010.
"In particular, the 3rd issue I raised in the 10th Circuit demands that they explain why they told Judge Friot the requirement to file a Form 1040 tax return withstands Section 3512 and PRA. The 10th Circuit has held for over 19 years that the Form 1040 MUST comply with the Paperwork Reduction Act or no person can be subject to any penalty including criminal for any claim inexorably linked to failing to file a Form 1040 tax return. If there is any doubt at this point by anyone as to whether the requirement to pay a tax to the Secretary has any independent basis than from a Form 1040, the Tax Division in it’s Bill of Particulars left no room to question this proposition. While describing the requirement by law to file the Form 1040 tax return, they informed the Court and me that Title 26 Section 6151 was their basis and theory for my failure to pay a tax. Anyone who reads Section 6151 will no doubt recognize that you are only required to pay a tax that you show is owed UPON the requirement to file a Form 1040 tax return.
"I have tried to get this relief under the Paperwork Reduction Act for many years. Each time I get closer to getting it as in 2007, the 10th Circuit told me I can only raise the PRA as a defense and not on the offense. If the Form 1004 was not subject to the PRA, they would have affirmed Judge Eagan on her erroneous claim the requirement to file was not subject to the PRA. In 2009, the 10th Circuit said in a published opinion, I raise difficult issues between the tax code and the PRA. They also said the Tax division made a frivolous argument when they argued to the 10th Circuit that the 10th circuit had ruled on the merits of my PRA claims which they informed the Tax Division again, they had not EVER made any such ruling.
"I know it has been a long and difficult time to get these PRA issues ruled upon on their merits by the 10th Circuit and I believe that time is now here.
"The second issue is what the impact should be on the revelation by the Tax Division that since 2000, there has been no delegates of the Secretary of Treasury authorized by law to act outside of the District of Columbia in the enforcement for administration for the Internal Revenue laws.
"In my case the Tax Division admits those offices or districts simply no longer exist. There are now 4 cases in the 10th Circuit to which I am prosecuting or defending. "
Many times I’ve wondered which would be better for me and my family and my mission-a not guilty verdict, which was certain to have been the result without Judge Friot threatening the jury. He had previously found certain "facts" in regard to the PRA and Form 1040 "I have found the From 1040 does not and did not violate the PRA"; or a ruling by the 10th Circuit finally unequivocally telling the public Form 1040 violates the PRA and must comply to the PRA. The 10th Circuit has repeatedly stated both without ever finding what the violations were. In Lewis, the 10th circuit 2008 allowed the unchallenged non-accompanying instruction booklet to save the Form 1040 violations. And in passing stated Mr. Lewis did not challenge the instructions.
The Tax Division told the 10th Circuit last Wednesday that their argument of the PRA protection against all charges against me was that I was wrong because the phrase "tax forms" as announced by the Supreme Court in Dole v. United Steelworkers(1990) was subject to the PRA while a "tax return" was not. So, to put this into perspective the requirement to file a tax form is subject to the PRA while the requirement to file a tax return is not protected by the PRA.??
After trying each of these phrases over and over again, I have come to the conclusion the TAX Division has gone simply nuts. Ask yourself why would they tell the 10th Circuit something preposterous intentionally. If they are correct, then how would anyone have ever known that the requirement to file a tax return was different than a requirement to file a tax form. The "Form 1040 us individual income tax return" uses both terms in it’s heading. The reason the tax Division made this erroneous claim was because their other 3 previous intentions failed miserably. First, the statutory mandate theory ran into the PRA mandate by the law, which is not a theory. Second, the Form 1040 was argued to purportedly comply and is clearly false simply making the comparison between the Form 1040 and the law and regulations. Third, the instruction accompanying Form 1040 purportedly satisfies the PRA mandate is simply not sustainable. These three now aborted propositions that the tax division dismissed have given birth to their latest position that somehow a requirement to file a tax return is not subject to the PRA protection while the requirement to file a tax form is subject to the PRA.
Besides the obvious problem that the face of the Form 1040 contains both the term Form and return, it creates even greater problem created by this new song and dance.
If return is not defined, and it’s not, then how would anyone know what that term means in Federal law? Congress settled this problem by directing the Secretary by regulation to provide the form and made it the duty of every person to use that specified form. The Tax Division think tank certainly was aware that the supreme court in commissioner v. Lane wells,321 US 219(1944), and 26 CFR 601.105, and even in the tax Divisions bill of particulars which they provided Title 26 Section 6011 and 26 CFR 1.6011 and 1.6012. They also admit the return is to be "filed" and that such filing requires a form to satisfy.
I understand many of you are just now starting to realize to put the dots together regarding why the PRA is not only so important but has caused the United States Tax Division to make Federal law look like it is only designed to ensnare or entrap citizens by being made so complicated no one could understand it. Fortunately for each of us, under criminal statutes the law is to be strictly construed and the Tax Division has virtually no hope that strictly construing the word "return" will exclude the term "form" from it’s meaning. I just thought I would clarify this for you since those who do not want you to understand it and their continued attempt to
On May 2nd, Lindsey Springer wrote:
" I realize there are many people who simply do not have time to understand the issues I am raising. I will herein provide a more simple understanding of the issues.
"For most of you, only 2 issues I am raising matter. The first has to do with Form 1040 and whether that form or any other tax form are subject to the Paperwork Reduction Act. Subsidiary to this question is whether the Form 1040 complies. If it does not, then you cannot be penalized for anything that involves a failure to file such forms.
"The Tax Division has been propagandizing everything it can to convince the public that the Form 1040 and the requirement to same is not subject to the PRA. Every United States Circuit Court who has addressed the issue has repeatedly said Form 1040 MUST comply. There are a few cases in passing that said the law which requires use of the Secretary’s tax forms withstands the public protection provision at Title 44 Section 3512.
"Section 3512 begins "Not withstanding any other provision of law, no person shall be subject to any penalty...". Those few cases referenced above are completely in opposition to the Supreme Court and 10th Circuit holdings on the subject of the PRA.
"At my trial, for example, the Tax Division argued before the jury that although the Dole decision in 1990 by the Supreme Court said "tax forms" were "typical" information collection requests subject to the PRA, and that no where in the Dole decision was the Form 1040 ever specifically mentioned. That argument will not withstand scrutiny at the 10th Circuit,. The 10th Circuit has repeatedly told the Tax Division that Form 1040 is subject to the PRA. The Tax Division continues to tell the public my PRA claims are "legalistic gibberish".
"The Tax Division told judge Friot on May 6 2010 that I have been repeatedly told numerous times that my specific PRA claims are frivolous and meritless. The last time Tax Division made that argument in the 10th Circuit, they were told by the 10th Circuit for the 1st time ever, they were making a frivolous argument to that court. The frivolous argument found by the 10th Circuit, that Tax Division maintains, was that they(10th Circuit) had ruled on the merits of my PRA claims. Again, the 10th circuit told the Tax Division that their claim was false.
"The reason why the Tax Divisions continues to maintain the argument they made in Springer v. the Commissioner, 08-9004 is because at the time I was indicted, the 10th Circuit had not entered it’s published decision extending from 08-9004. That decision came out 8-31-09. Recently, the 10th Circuit ordered the Tax Division to address each issue in my motion for release from jail pending appeal on or before May 19,2010.
"In particular, the 3rd issue I raised in the 10th Circuit demands that they explain why they told Judge Friot the requirement to file a Form 1040 tax return withstands Section 3512 and PRA. The 10th Circuit has held for over 19 years that the Form 1040 MUST comply with the Paperwork Reduction Act or no person can be subject to any penalty including criminal for any claim inexorably linked to failing to file a Form 1040 tax return. If there is any doubt at this point by anyone as to whether the requirement to pay a tax to the Secretary has any independent basis than from a Form 1040, the Tax Division in it’s Bill of Particulars left no room to question this proposition. While describing the requirement by law to file the Form 1040 tax return, they informed the Court and me that Title 26 Section 6151 was their basis and theory for my failure to pay a tax. Anyone who reads Section 6151 will no doubt recognize that you are only required to pay a tax that you show is owed UPON the requirement to file a Form 1040 tax return.
"I have tried to get this relief under the Paperwork Reduction Act for many years. Each time I get closer to getting it as in 2007, the 10th Circuit told me I can only raise the PRA as a defense and not on the offense. If the Form 1004 was not subject to the PRA, they would have affirmed Judge Eagan on her erroneous claim the requirement to file was not subject to the PRA. In 2009, the 10th Circuit said in a published opinion, I raise difficult issues between the tax code and the PRA. They also said the Tax division made a frivolous argument when they argued to the 10th Circuit that the 10th circuit had ruled on the merits of my PRA claims which they informed the Tax Division again, they had not EVER made any such ruling.
"I know it has been a long and difficult time to get these PRA issues ruled upon on their merits by the 10th Circuit and I believe that time is now here.
"The second issue is what the impact should be on the revelation by the Tax Division that since 2000, there has been no delegates of the Secretary of Treasury authorized by law to act outside of the District of Columbia in the enforcement for administration for the Internal Revenue laws.
"In my case the Tax Division admits those offices or districts simply no longer exist. There are now 4 cases in the 10th Circuit to which I am prosecuting or defending. "
Many times I’ve wondered which would be better for me and my family and my mission-a not guilty verdict, which was certain to have been the result without Judge Friot threatening the jury. He had previously found certain "facts" in regard to the PRA and Form 1040 "I have found the From 1040 does not and did not violate the PRA"; or a ruling by the 10th Circuit finally unequivocally telling the public Form 1040 violates the PRA and must comply to the PRA. The 10th Circuit has repeatedly stated both without ever finding what the violations were. In Lewis, the 10th circuit 2008 allowed the unchallenged non-accompanying instruction booklet to save the Form 1040 violations. And in passing stated Mr. Lewis did not challenge the instructions.
The Tax Division told the 10th Circuit last Wednesday that their argument of the PRA protection against all charges against me was that I was wrong because the phrase "tax forms" as announced by the Supreme Court in Dole v. United Steelworkers(1990) was subject to the PRA while a "tax return" was not. So, to put this into perspective the requirement to file a tax form is subject to the PRA while the requirement to file a tax return is not protected by the PRA.??
After trying each of these phrases over and over again, I have come to the conclusion the TAX Division has gone simply nuts. Ask yourself why would they tell the 10th Circuit something preposterous intentionally. If they are correct, then how would anyone have ever known that the requirement to file a tax return was different than a requirement to file a tax form. The "Form 1040 us individual income tax return" uses both terms in it’s heading. The reason the tax Division made this erroneous claim was because their other 3 previous intentions failed miserably. First, the statutory mandate theory ran into the PRA mandate by the law, which is not a theory. Second, the Form 1040 was argued to purportedly comply and is clearly false simply making the comparison between the Form 1040 and the law and regulations. Third, the instruction accompanying Form 1040 purportedly satisfies the PRA mandate is simply not sustainable. These three now aborted propositions that the tax division dismissed have given birth to their latest position that somehow a requirement to file a tax return is not subject to the PRA protection while the requirement to file a tax form is subject to the PRA.
Besides the obvious problem that the face of the Form 1040 contains both the term Form and return, it creates even greater problem created by this new song and dance.
If return is not defined, and it’s not, then how would anyone know what that term means in Federal law? Congress settled this problem by directing the Secretary by regulation to provide the form and made it the duty of every person to use that specified form. The Tax Division think tank certainly was aware that the supreme court in commissioner v. Lane wells,321 US 219(1944), and 26 CFR 601.105, and even in the tax Divisions bill of particulars which they provided Title 26 Section 6011 and 26 CFR 1.6011 and 1.6012. They also admit the return is to be "filed" and that such filing requires a form to satisfy.
I understand many of you are just now starting to realize to put the dots together regarding why the PRA is not only so important but has caused the United States Tax Division to make Federal law look like it is only designed to ensnare or entrap citizens by being made so complicated no one could understand it. Fortunately for each of us, under criminal statutes the law is to be strictly construed and the Tax Division has virtually no hope that strictly construing the word "return" will exclude the term "form" from it’s meaning. I just thought I would clarify this for you since those who do not want you to understand it and their continued attempt to
Friday, May 14, 2010
Not enough Clear, accurate, reliable information available to act properly.
After being part of the tax protester and tax honesty movement for the last 25+ years, I have seen a lot happen. I have witnessed many friends try to take on the beast and be defeated, despite their best efforts. When the courts system becomes an equal adversary, assisting the prosecution who is representing the Treasury department whom hides the IRS from scrutiny, it is all but impossible for a citizen to prevail in court.
The current "policy" of this government is to shift the burdent of proof on the American citizen. The IRS claims that if it had the burden of proof, it could not do its job. This sounds silly to me at best, and is a lame excuse for avoiding its duty.
Where does a citizen turn to, to obtain VALID, correct, and accurate information?
The courts give us a few hints:
"We sympathize with the taxpayer who in fact relies upon what he accepts as an
authoritative interpretation of the laws and of the Treasury publications. But
nonetheless it is for the Congress and the courts and not the Treasury to declare
the law applicable to a given situation." (Carpenter v. United States, 495 F.2d 175)
"It is hornbook law that informal publications all the way up to revenue rulings are
simply guides to taxpayers, and a taxpayer relies on them at his peril." (Catipillar
Tractor Co. v. United States, 589 F-2d 1040)
The procedures in the Internal Revenue Manual do not have the force of law, so
neither the IRS nor the individual is legally bound to follow them [paraphrased].
(First Federal Savings and Loan Ass'n of Pittsburgh, WD Pa., F.Supp. 101)
In other words, the IRS publications are worthless, and cannot be relied upon.
Some court cases can, Such as some Tax Court cases, and most US district cases, unless they have been sent to the US supreme court, of which their decisions take precidence over all others.
The avarage citizen relies on the IRS giving acurate information, but as stated above, that information may not be correct.
One must look to the Published law. The Federal Register. Most Americans don't have a clue as to how to acccess these publications.
If one goes to the public library and looks in the legal section, you might find copies of the nations laws. There, in title 26, one finds the Internal Revenue Code.
Upon reading chapter 1, one finds congress imposed a tax, but continual reading shows congress did not write a liablity statute. Continuing reading you would find other taxes imposed, in other chapters, many of which do in fact, contain a liablity section. But there is none for chapter 1, Income tax. Why?
Upon further reading of the IRC, you will come across section 61A. Gross income defined. Notice Income itself, is not. Gross income, Adjusted Gross income, taxable income, ordinary income, and unordinary income are all defined by law, but these are types of income, not the defintion of income itself.
If a citizen is trying to find out what income is, and he cannot find it within the context of the written law, how can he be expected to follow a law that is vague at best?
Unable to determine if the citizen has income, he gives up and decides he has none.
Then the IRS uses its "unreliable" publications to create a legal presumption of liablity, via the work sector. That is the W4 form, and will be discussed in another posting.
If a citizen can read the Internal revenue code, and find taxes imposed, with proper liablity sections for taxes on Distilled Spirits, on rubber products, on tires, on automobiles, on petrolum products, why isn't there a clear liablity statute for the income taxes imposed by congress, in chapters 1 and 2?
The citizen is left in a state where there is not enough accurate information for him or her to determine if he or she has income, and with out the ability to make a proper determination of that, if he or she has taxable income, and thus would be required give service according to the law. In this case it would mean filing a 1040 tax return.
The current "policy" of this government is to shift the burdent of proof on the American citizen. The IRS claims that if it had the burden of proof, it could not do its job. This sounds silly to me at best, and is a lame excuse for avoiding its duty.
Where does a citizen turn to, to obtain VALID, correct, and accurate information?
The courts give us a few hints:
"We sympathize with the taxpayer who in fact relies upon what he accepts as an
authoritative interpretation of the laws and of the Treasury publications. But
nonetheless it is for the Congress and the courts and not the Treasury to declare
the law applicable to a given situation." (Carpenter v. United States, 495 F.2d 175)
"It is hornbook law that informal publications all the way up to revenue rulings are
simply guides to taxpayers, and a taxpayer relies on them at his peril." (Catipillar
Tractor Co. v. United States, 589 F-2d 1040)
The procedures in the Internal Revenue Manual do not have the force of law, so
neither the IRS nor the individual is legally bound to follow them [paraphrased].
(First Federal Savings and Loan Ass'n of Pittsburgh, WD Pa., F.Supp. 101)
In other words, the IRS publications are worthless, and cannot be relied upon.
Some court cases can, Such as some Tax Court cases, and most US district cases, unless they have been sent to the US supreme court, of which their decisions take precidence over all others.
The avarage citizen relies on the IRS giving acurate information, but as stated above, that information may not be correct.
One must look to the Published law. The Federal Register. Most Americans don't have a clue as to how to acccess these publications.
If one goes to the public library and looks in the legal section, you might find copies of the nations laws. There, in title 26, one finds the Internal Revenue Code.
Upon reading chapter 1, one finds congress imposed a tax, but continual reading shows congress did not write a liablity statute. Continuing reading you would find other taxes imposed, in other chapters, many of which do in fact, contain a liablity section. But there is none for chapter 1, Income tax. Why?
Upon further reading of the IRC, you will come across section 61A. Gross income defined. Notice Income itself, is not. Gross income, Adjusted Gross income, taxable income, ordinary income, and unordinary income are all defined by law, but these are types of income, not the defintion of income itself.
If a citizen is trying to find out what income is, and he cannot find it within the context of the written law, how can he be expected to follow a law that is vague at best?
Unable to determine if the citizen has income, he gives up and decides he has none.
Then the IRS uses its "unreliable" publications to create a legal presumption of liablity, via the work sector. That is the W4 form, and will be discussed in another posting.
If a citizen can read the Internal revenue code, and find taxes imposed, with proper liablity sections for taxes on Distilled Spirits, on rubber products, on tires, on automobiles, on petrolum products, why isn't there a clear liablity statute for the income taxes imposed by congress, in chapters 1 and 2?
The citizen is left in a state where there is not enough accurate information for him or her to determine if he or she has income, and with out the ability to make a proper determination of that, if he or she has taxable income, and thus would be required give service according to the law. In this case it would mean filing a 1040 tax return.
Wednesday, May 12, 2010
Question of the Century.
The income tax, is an excise tax, not subject to apportionment. This is what the courts have said, and repeatidly held to be the truth about this tax.
An excise is a tax that is 'laid upon the manufacture, sale or consumption of commodities within the country, upon licenses to pursue ceratin occupations, and upon corporate privileges.'"
So my question of the century, is how did Joe Doe and hourly worker and Bob Smith a salaried worker, both of whom are non corporate officers, end up owing an excise tax if they are not benifiting from corporate privileges, do not have licences to pursue specific occupations, or are not involved in the sale, or manufacture of commodities, or are not actual government workers, drawing paychecks from the US Treasury?
In other words, when did working for a living to provide for ones self, become an excise taxable activity?
Just because they both work for ABC Inc., does not mean they enjoy the status of limited liablitity that the corporate Officers do. In fact, officers of corporations are included as "persons" as a person is defined in chapter 75. Hourly and salaried workers are not.
An excise is a tax that is 'laid upon the manufacture, sale or consumption of commodities within the country, upon licenses to pursue ceratin occupations, and upon corporate privileges.'"
So my question of the century, is how did Joe Doe and hourly worker and Bob Smith a salaried worker, both of whom are non corporate officers, end up owing an excise tax if they are not benifiting from corporate privileges, do not have licences to pursue specific occupations, or are not involved in the sale, or manufacture of commodities, or are not actual government workers, drawing paychecks from the US Treasury?
In other words, when did working for a living to provide for ones self, become an excise taxable activity?
Just because they both work for ABC Inc., does not mean they enjoy the status of limited liablitity that the corporate Officers do. In fact, officers of corporations are included as "persons" as a person is defined in chapter 75. Hourly and salaried workers are not.
Friday, May 7, 2010
IRS V Hendrickson (Cracking the code)
Right or wrong, Mr. Hendrickson was convicted of knowingly filing false documents with the IRS.
When you read the IRS’ complaint, it specifically points out that Mr. Hendrickson received Forms W-2 from his employer but chose to declare $0 wages earned even in the face of evidence that he did in fact earn wages. How was the DOJ able to declare that Mr. Hendrickson did in fact earn wages contrary to his first-hand knowledge and sworn testimony?
This is the IRS's position, in these cases. That the company has provided an information return, signed under penalties of perjury, that they paid us wages, and that we had taxable income.
The IRS then expects us to accept that information as factual, and to use it on the 1040 form, to declare tax owed and paid, as shown on the w2 forms.
This is Hendricksons Position: Since he is risking felony conviction(s) every time he files a 1040 form, then it is up to him to ensure the information is correct.
Hendrickson does not accept the information return filed by the company (employer) to be legaly accurate. It is accurate as much as the comany worker who filled it out is concerned, but that is based on that individuals belief, not on facts.
Hendrickson then relys on the IRS's own forms, the 4852 which allows a citizen to correct the record given to the IRS by another party, in this case the company he worked for (employer).
Imaginary Direct testimony given by Mr. Holbrok, to the DOJ from the witness stand:
DOJ: “Ms. Halbrook, did your company pay Mr. Hendrickson wages?”
MH: “Yes.”
DOJ: “Ms. Halbrook, are the amounts you paid based on the business
records of your current company?”
MH: “Yes.”
DOJ: “Ms. Halbrook, do you have any knowledge or belief that these
records are incorrect?”
MH: “No.”
DOJ: “Ms. Halbrook, are the amounts you paid Mr. Hendrickson accurate?”
MH: “Yes.”
DOJ: “Ms. Halbrook, are the Forms W-2, which your company made in the
course of its regular business activities, accurate in every detail?”
MH: “Yes.”
DOJ: “Ms. Halbrook, are you the custodian of these records now?”
MH: “Yes.”
So, let’s be fair to the DOJ here. They actually met their burden of proof. The IRS had a Form W-2 that is presumed correct. Mr. Hendrickson produced a correction to the document using Form 4852. In both instances, each has met the burden of production and they are at a standstill. However, the Supreme Court has ruled that in instances like this, the courts are required to favor Mr. Hendrickson’s claim over the IRS’. And the IRS still has a burden of persuasion. And that’s where 26
U.S.C. § 6201(d) comes into play. The Secretary is now required to provide credible and probative information in addition to the information return (in order to overcome the equality of evidence).
Mr. Hendrickson’s Response:
Mr. Hendrickson’s appeal stated that Ms. Halbrook had no personal knowledge of his activities since he didn’t work there when he worked and he cannot attest to the accuracy or the veracity of the records upon which the assignment of wages was made. Mr. Hendrickson believes his declaration is the DOJ’s sole evidence.
In addition, the form is internally consistent and reinforces the existing presumptions because Mr. Hendrickson included withholding of federal income tax, Social Security tax, and Medicare tax. Withholding (26 U.S.C. § 3402) is defined as amounts deducted from an employee’s wages by his employer in anticipation of a tax liability. Thus, when Mr. Hendrickson declared on his Form 4852 that he had federal income tax withheld, he necessarily declared he was in an employer-employee relationship and earned wages.
Hendrickson belives that he is not an "employee" as defined by 26 U.S.C §3401 and therefor did not recieve wages as defined in chapter 24. Nor did he receive wages as defined for chapter 21 (social security). Thefore the entire w-3 form the Company sent to the IRS, is wrong.
This whole case boils down to 2 questions of Jurisdiction.
1. Does the federal government have the authority to lable citizens so that they can be taxed under that lable?
2. Does the word includes mean expanding a definition or is it a restrictive term?
If the word includes is restrictive, then Henderickson is correct. If it is not then the issue becomes item 1. Does the government have the authoriy to declare people who work for another and get paid, to be labled employees so that the government can impose an excise (privilege) tax upon them?
That is what the courts must decide. Insted, they declared that Hendrickson violated 26 U.S.C § 7206, by filing false information on the 1040 forms. As such Hendrickson should be facing felony conviction under 7206, not the current charges he is under.
In effect, the DOJ is prosecuing Hendrickson for perjury without charging him with the proper statute.
When you read the IRS’ complaint, it specifically points out that Mr. Hendrickson received Forms W-2 from his employer but chose to declare $0 wages earned even in the face of evidence that he did in fact earn wages. How was the DOJ able to declare that Mr. Hendrickson did in fact earn wages contrary to his first-hand knowledge and sworn testimony?
This is the IRS's position, in these cases. That the company has provided an information return, signed under penalties of perjury, that they paid us wages, and that we had taxable income.
The IRS then expects us to accept that information as factual, and to use it on the 1040 form, to declare tax owed and paid, as shown on the w2 forms.
This is Hendricksons Position: Since he is risking felony conviction(s) every time he files a 1040 form, then it is up to him to ensure the information is correct.
Hendrickson does not accept the information return filed by the company (employer) to be legaly accurate. It is accurate as much as the comany worker who filled it out is concerned, but that is based on that individuals belief, not on facts.
Hendrickson then relys on the IRS's own forms, the 4852 which allows a citizen to correct the record given to the IRS by another party, in this case the company he worked for (employer).
Imaginary Direct testimony given by Mr. Holbrok, to the DOJ from the witness stand:
DOJ: “Ms. Halbrook, did your company pay Mr. Hendrickson wages?”
MH: “Yes.”
DOJ: “Ms. Halbrook, are the amounts you paid based on the business
records of your current company?”
MH: “Yes.”
DOJ: “Ms. Halbrook, do you have any knowledge or belief that these
records are incorrect?”
MH: “No.”
DOJ: “Ms. Halbrook, are the amounts you paid Mr. Hendrickson accurate?”
MH: “Yes.”
DOJ: “Ms. Halbrook, are the Forms W-2, which your company made in the
course of its regular business activities, accurate in every detail?”
MH: “Yes.”
DOJ: “Ms. Halbrook, are you the custodian of these records now?”
MH: “Yes.”
So, let’s be fair to the DOJ here. They actually met their burden of proof. The IRS had a Form W-2 that is presumed correct. Mr. Hendrickson produced a correction to the document using Form 4852. In both instances, each has met the burden of production and they are at a standstill. However, the Supreme Court has ruled that in instances like this, the courts are required to favor Mr. Hendrickson’s claim over the IRS’. And the IRS still has a burden of persuasion. And that’s where 26
U.S.C. § 6201(d) comes into play. The Secretary is now required to provide credible and probative information in addition to the information return (in order to overcome the equality of evidence).
Mr. Hendrickson’s Response:
Mr. Hendrickson’s appeal stated that Ms. Halbrook had no personal knowledge of his activities since he didn’t work there when he worked and he cannot attest to the accuracy or the veracity of the records upon which the assignment of wages was made. Mr. Hendrickson believes his declaration is the DOJ’s sole evidence.
In addition, the form is internally consistent and reinforces the existing presumptions because Mr. Hendrickson included withholding of federal income tax, Social Security tax, and Medicare tax. Withholding (26 U.S.C. § 3402) is defined as amounts deducted from an employee’s wages by his employer in anticipation of a tax liability. Thus, when Mr. Hendrickson declared on his Form 4852 that he had federal income tax withheld, he necessarily declared he was in an employer-employee relationship and earned wages.
Hendrickson belives that he is not an "employee" as defined by 26 U.S.C §3401 and therefor did not recieve wages as defined in chapter 24. Nor did he receive wages as defined for chapter 21 (social security). Thefore the entire w-3 form the Company sent to the IRS, is wrong.
This whole case boils down to 2 questions of Jurisdiction.
1. Does the federal government have the authority to lable citizens so that they can be taxed under that lable?
2. Does the word includes mean expanding a definition or is it a restrictive term?
If the word includes is restrictive, then Henderickson is correct. If it is not then the issue becomes item 1. Does the government have the authoriy to declare people who work for another and get paid, to be labled employees so that the government can impose an excise (privilege) tax upon them?
That is what the courts must decide. Insted, they declared that Hendrickson violated 26 U.S.C § 7206, by filing false information on the 1040 forms. As such Hendrickson should be facing felony conviction under 7206, not the current charges he is under.
In effect, the DOJ is prosecuing Hendrickson for perjury without charging him with the proper statute.
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