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Although the People's war against the income tax fraud and IRS abuse has been lengthy and daunting and has left many freedom fighters across our nation battered and bankrupt, there are continuing signs that the tide of tyranny may finally be meeting effective resistance.
On April 12th 2005, William Wallace Lear of Muskegon Michigan appeared in federal District Court in Grand Rapids to face IRS charges claiming Lear had violated the terms of his probation. William Lear had served one year in a federal detention facility in Minnesota following his conviction in 2002 for Willful Failure to File income tax returns (a misdemeanor). His probation began in March, 2004.
The basis for the probation violation hearing was an IRS claim that Lear failed to abide by the strict terms of his probation which included the requirement that he file all his delinquent tax returns and pay all back taxes and penalties owed.
Just as the hearing before Judge Gordon Quist began, the DOJ attorneys moved to dismiss the IRS's probation violation claim against Lear that would have sent him back to prison.
Although Lear had filed his missing returns signing them “under duress” (which IRS does not allow) and failed to pay the taxes owing on those returns, Judge Quist signed an order, completely releasing Lear from federal custody. As of April 12th, Lear has been a free man.
An important question remains: Why? Why would the IRS and DOJ walk away from a golden opportunity to make headlines and send a convicted tax protester back to prison?
Before answering the question, let’s review some of the key developments leading up to the April 12, 2005 probation violation hearing.
After serving his 1-year sentence and after his return to his home in Michigan to fulfill his probation, Bill Lear and his wife Rose “dug back in” and continued to review the extensive body of legal research that had originally caused Bill Lear not to file.
During the summer of 2004, they constructed a “Challenge of Authority” document relying on legal material from various sources including comprehensive research posted by WTP in May 2004 and that has since been sent repeatedly by the Foundation (and others) to various officials of the U.S. government, including the President's current Advisory Panel on Federal Tax reform.
This research conclusively documents that IRS has no legal authority to impose taxes on the wages and salaries of ordinary Americans. Particularly damaging in the challenge was recently archived documentation from the government itself clearly showing that IRS Form 1040 is a “proposed” information collection form and that there is no legal authority cited for its use.
On October 4, 2004, during a meeting in the offices of their Congressional Representative Peter Hoekstra, the Lears formally served their Challenge of Authority on three IRS agents and engaged in a significant discussion about the limits of their authority. The IRS agents refused to respond to the Challenge of Authority simply stating that it is not the “practice” of IRS to respond to such requests.
What the agents did not know, however, was that two weeks earlier, on September 24th, the Lears had filed the same document as a formal public legal record in their local county courthouse at office of the Registrar of Deeds.
On February 28, 2005, after additional contacts with IRS officials in which Bill Lear repeatedly asked the IRS to provide specific legal guidance to him so he could know which tax form the law required him to fill out, and thereby comply with the terms of his probation, the Lears again confronted the IRS agents in a meeting in Rep. Hoekstra's office.
At that meeting, and after a heated discussion with IRS agents, confronting them with government documents and evidence clearly showing Form 1040 has no authority in law, IRS ended the discussion by telling Lear that the law required him to use “Form 1040” to file his returns.
Frustrated and agitated with the exchange, IRS Agent J. McWilliams stated that Lear “wasn't cooperating with the IRS”, and that Lear was “going back to prison.”
On March 2, just days before Lear's probation was due to expire, IRS filed a probation violation complaint with the federal probation office. Lear was promptly served Notice of the hearing that could send him back to prison.
On March 4, the Lears filed a Habeas Corpus regarding the original conviction.
On March 9, Lear filed a pleading answering the alleged violation of probation.
On March 10, Lear also decided to “hedge his bet” and filed the delinquent tax returns, but signed the tax forms “under duress.”
On March 14, 2005 - Lear appeared before Magistrate Joseph G. Scoville who found cause for the violation and sent the case to Judge Quist for a formal hearing.
It should be noted that IRS routinely rejects tax returns signed “under duress” due to the obvious due process implications related to the use of force, threat of force, or other intimidation to coerce an individual to swear to a statement made under “penalties of perjury.” It should be further noted that although required by the terms of his probation, Lear did not make any payment toward the alleged taxes or penalties due for the returns he was convicted for willfully failing to file.
Finally, on March 21st, the Lears filed a Motion to Quash the Release Revocation Hearing. Contained within this motion was the formal “Challenge of Authority” document that had been previously recorded in their local county courthouse as a legal public record.
On April 12, Lear and his wife Rose appeared in court for Bill's probation violation hearing.
Instead of publicly confronting the merits of the alleged probation violation and asking the court to send a “recalcitrant tax convict” back to prison, attorneys for the DOJ and IRS withdrew their complaint alleging the probation violation.
Because under Rule 902 of the Federal Rules of Evidence, a court cannot deny the admissibility of relevant evidence consisting of certified copies of public legal records as they are presumed to be self-authenticating and valid as evidence.
Here is the text of Rule 902, sub-paragraph (4):
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(4). Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification.
In other words, in facing a public criminal hearing where the contents of Lear's “Challenge of Authority” was, without argument, directly relevant to Lear's alleged violation, and knowing the District Court could not deny its admittance as evidence, the DOJ was faced with two unpleasant alternatives: either produce IRS witnesses to explain away government documentation clearly showing IRS Form 1040 is not a legally authorized form, or walk away from the probation violation hearing.
Rather than take a potential headline-making opportunity to publicly chastise and send back to prison a convicted tax protester who had dared – even after conviction -- to continue questioning the legal authority of the government, the IRS and DOJ instead withdrew their criminal complaint, thereby avoiding having to confront – on the record – the damning evidence contained in Lear's formal Motion to Quash and its “Challenge of Authority” exhibit. (Note the legal argument regarding the lack of authority for Individual Form 1040 begins on page 4 of the Motion to Quash.)
By withdrawing the IRS complaint against Lear, DOJ avoided having to publicly attempt to rebut Lear's legal research and having to admit that the government could not cite any legal authority requiring the filing of a 1040 Individual tax return.
On April 25th, despite the facts that Lear had filed defective returns signed “under duress” and also failed to pay the taxes and penalties owed for the returns he was convicted for failing to file, Judge Quist signed a formal order completely freeing Bill Lear from the terms of his probation.
The Sixth Circuit Court of Appeals in Cincinnati, Ohio is currently considering whether to certify Lear's most recent Habeas Corpus motion to vacate his conviction. That motion is also based upon the new legal research contained in his “Challenge of Authority.”
The Hard Evidence That
Form 1040 Has No Legal Authority
In their “Challenge of Authority” document, the Lears provide hard documentary evidence that IRS Form 1040 has NO legal authority.
This evidence was presented by contrasting archived government documents that have been filed pursuant to the federal Administrative Procedures Act (APA) and Paperwork Reduction Act (PRA).
Under the PRA, each and every government form that is used to collect information from the general public under law must be linked to its authorizing statutes and implementing regulations and have a valid Office of Management and Budget “OMB” Form number. This requirement of law provides an orderly means to identify which statutes, regulations and forms are related.
As one item of evidence, the Lears produced a stamped copy of a 1987 Treasury Department document entitled, “Request for OMB Review” which is required by the Paperwork Reduction Act. The request was for IRS Form “1040-NR”, the tax form used by Non-Resident Aliens to report their “income”.
Several things about this document are noteworthy:
1. The form used for the request is OMB Form “83”
2. On line 5 of Form 83, the administrative requester is required to cite the statutes actually authorizing the collection of the information. The authorizing statutes are, in fact, cited.
3. On line 27 of Form 83, the administrative requester is required to cite the regulations actually authorizing the collection of the information. The authorizing regulations are, in fact, cited.
Click Here to See the “OMB Form 83” Treasury request for IRS Form 1040-NR for use by Non-Resident Aliens
Here's where it gets very interesting:
The “Challenge of Authority” document also contains a similar Treasury PRA request from 1996, but this one is for the “regular” IRS Individual Form 1040 that millions of Americans file each year.
This Treasury administrative request is not made on OMB “Form 83” ---- but rather using an alternate OMB form, “83-1” titled, ”Paperwork Reduction Act Submission”.
Several very important differences between the OMB request forms need to be noted:
1. OMB Form 83-1 does NOT require any specific citation of statutory authority.
2. OMB Form 83-1 does NOT require any specific citation of regulatory authority.
3. In the “Certification” box found on page 2 of Form 83-1, there are specific references to
both PRA Regulations “5 CFR 1320.9” and “5 CFR 1320.8(b)(3).”
4. The attachments to this OMB Form 83-1 request consist primarily of a list of Title 26 (Income Tax) regulations and statutes that are merely (quoting) “associated” with IRS Form 1040.
Click here to see the Treasury request using OMB Form 83-1 for the IRS Individual “Form 1040”
Here's the punch line:
IRS Form 1040-NR (for Non-Resident Aliens) is certified as complying with the requirements of the PRA found at regulation 5 CFR 1320.8. In its request to the OMB for IRS Form “1040-NR”, the Department of Treasury (IRS) clearly cites both the statutory and regulatory authorities authorizing the use of the form to collect information and certifies its request as such.
Click Here to read the Paperwork Reduction Act (PRA) form disclosure requirements found at 5 CFR 1320.8.
Please specifically note that for the Treasury's request using alternative OMB Form 83-1 for IRS Individual Form 1040, the Treasury has formally certified the request under regulation 5 CFR 1320.9, which is explicitly reserved for “PROPOSED” government forms.
Printed just below is the title header for federal regulation “5 CFR 1320.9”:
[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 5 CFR 1320.9]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER III--OFFICE OF MANAGEMENT AND BUDGET
PART 1320_CONTROLLING PAPERWORK BURDENS ON THE PUBLIC--Table of Contents
Sec. 1320.9 Agency certifications for proposed collections of information.
As part of the agency submission to OMB of a proposed collection
of information, the agency (through the head of the agency,
the Senior Official, or their designee) shall certify
and provide a record supporting such certification)
that the proposed collection of information [...]
In short, if IRS Individual Form 1040 was actually authorized under U.S. law, the Department of Treasury would have submitted it for OMB certification using OMB “Form 83” which requires explicit citation of the Form's authorizing statutes and regulations.
Instead, the IRS used alternative OMB Form “83-1” -- which is designated ONLY for “proposed” government forms – and which does NOT require any formal citation of legal authority allowing its use.
Furthermore, even though an attachment to the Treasury's request for IRS Form 1040 (on OMB Form 83-1) contains a lengthy list of statutes and regulations, and “Box 12” on the form is marked indicating the form is “mandatory”, a careful reading of the submission to OMB will make it clear that the Department of Treasury is ONLY certifying that:
1. Form 1040 is a “proposed form” and that, IF authorized, it would meet the collection criteria established by regulation 5 CFR 1320.9, and
2. That Form 1040 is only “associated” with the statutes and regulations cited in the 1040 request, and
3. If Form 1040 were actually authorized by law, it would be “mandatory”.
As a final observation, it should be noted that both the 1987 Form 1040-NR request as well as the 1996 Form 1040 request were signed by the same IRS officials, one Garrick R. Shear, the IRS Reports Clearance Officer and one Lois K. Holland as/for the Departmental Reports Management Officer. Lear's pleadings contain additional OMB certifications, also signed by Shear & Holland.
In short, the Department of Treasury's clear and willful intent to use OMB Form 83-1 (rather than OMB Form 83) to legally certify IRS Individual Form 1040 as a valid government document, is compelling proof establishing that IRS Form 1040 is merely a PROPOSED tax form, and that there is NO LEGAL AUTHORITY that authorizes its use.
When one considers who the Subtitle A income taxes actually apply to, which is elected or appointed officials of the U.S. Government and officers, their "employer" is actually the U.S. Government, and certainly that government has a right to tell its own administrative employees that they must withhold if their employees volunteer for withholding using the IRS form W-4.
It would be hypocritical not to and beyond the authority of an administrative agency of the U.S. government to deny the right of Congress to expect them to withhold.
However, applying the same rules to private employers inside the 50 states on nonfederal land definitely is involuntary servitude, not to mention exceeds the jurisdiction of the U.S. government to assess income taxes. The U.S. supreme Court case of Yick Wo v. Hopkins, 118 U.S. 356 (1886) defined what slavery means:
"For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself."
This definition of slavery doesn’t mean total slavery, and includes simply having one’s time or property or labor usurped or stolen or one’s property rights infringed. We would argue then that compelled withholding by employers definitely amounts to slavery, or involuntary servitude. Even if it doesn’t meet the precise intent of the original purpose of the Thirteenth Amendment (which outlawed slavery), it is still slavery, as revealed in the following definitions of slavery in Merriam Webster’s Collegiate dictionary:
1: a person held in servitude as the chattel of another: BONDMAN
2: one that is completely subservient to a dominating influence.
1. drudgery, toil
2. submission to a dominating influence
3. a: the state of a person who is a chattel of another b: the practice of slaveholding.
The same dictionary then defines "servitude" as follows:
1. a condition in which one lacks liberty especially to determine one's course of action or way of life
2. a right by which something (as a piece of land) owned by one person is subject to a specified use or enjoyment by another
From the above definition, you can see that servitude, or slavery, encompasses not only surrendering control of one’s body and time to another, but it also involves the right of use and beneficial enjoyment of one’s property as well. Servitude is a condition where we have been involuntarily deprived of liberty. Black’s Law Dictionary, Sixth Edition, on page 1388 defines slavery as follows:
slavery: The condition of a slave; that civil relation in which one man has absolute power over the life, fortune, and liberty of another. The 13th Amendment abolished slavery.
slave: A person who is wholly subject to the will of another; one who has no freedom of action, but whose person and services are wholly under the control of another. One who is under the power of a master, and who belongs to him; so that the master may sell and dispose of his person, of his industry, and of his labor, without his being able to do anything, have anything, or acquire anything, but what must belong to his master. The 13th Amendment abolished slavery.
The condition of slavery is referred to in the U.S. Code, Title 18, Chapter 77 (sections 1581 through 1588) as "peonage", which is defined as follows:
1. a: the use of laborers bound in servitude because of debt b: a system of convict labor by which convicts are
2. : the condition of a peon.
PEON 3 a: a person held in compulsory servitude to a master for the working out of an indebtedness b: DRUDGE, MENIAL
Interestingly, would anyone argue that we aren’t peons who are slaves to the Federal Reserve and who owe income taxes to pay off the debts of the U.S. government to the privately owned Federal Reserve? If you look at former President Reagan’s Grace Commission Report, for instance, you find that the income tax doesn’t go to pay the expenses of the government.
Instead, it goes mainly to pay interest on the national debt to the Federal Reserve. Isn’t peonage against the law? But that’s what the U.S. Congress legalized when it nearly simultaneously passed the Federal Reserve Act and the Income Tax in 1913.
The two are linked together because if you are going to run up a big public debt, then peons are needed to pay it off.
THAT’S RIGHT - YOU’RE A PEON AND YOU DIDN’T EVEN KNOW IT!
However, 18 U.S.C §1581 makes peonage illegal:
Sec. 1581. Peonage; obstructing enforcement
* (a) Whoever holds or returns any person to a condition of peonage, or arrests any person with the intent of placing him in or returning him to a condition of peonage, shall be fined under this title or imprisoned not more than 10 years, or both.
* (b) Whoever obstructs, or attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be liable to the penalties prescribed in subsection (a).
Now do you understand why the IRS has no delegated authority directly linked to Congress and why there is no statute directly authorizing the establishment of the IRS? Because if Congress created one, the members of Congress could be held personally liable for violating the above law as well as constructively instituting "extortion under the color of office":
extortion under the color of office: "Unlawful taking by any officer by color of his office, of any money or thing of value, that is not due to him, or more than is due or before it is due." 4 Bla.Comm. 141; Com. v. Saulsbury, 152 Pa. 554,25 A. 610; U.S. v. Denver, D.C.N.C. 14 F. 595; Bush v. State, 19 Ariz. 195, 168 P. 508, 509
"Obtaining property from another, induced by wrongful use of force or fear, OR under color of official right." See State v. Logan, 104 La. 760, 29So. 336; In re Rempfer, 51 S.D. 393, 216 N.W. 355, 359, 55 A.L.R. 1346; Lee v. State, 16 Ariz. 291, 145 P. 244, 246,Ann.Cas. 1917B, 131. (Black’s Law Dictionary, Revised 4th Edition)
Notice that the key to being a slave is the absence of property rights, and the most sacred kind of property is one’s labor, as confirmed in the supreme Court case of Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, 1883. Thomas Jefferson, the author of our Declaration of Independence, confirmed the foundation of our political system is the ownership and complete control over one’s property when he said the following:
"The true foundation of republican government is the equal right of every citizen in his person and property and in their management." -- Thomas Jefferson to Samuel Kercheval, 1816. ME 15:36
"Nothing is ours, which another may deprive us of." --Thomas Jefferson to Maria Cosway, 1786. ME 5:440
“The taxpayer must be liable for the tax. Tax liability is a condition precedent to the demand. Merely demanding payment, even repeatedly, does not cause liability”. Boathe v. Terry, 713 F. 2d 1405, at 1414 (1983).
Hey Look! - Proper 23C Assessment Forms really do Exist!
Internal Revenue Manual 3(17)(63) (14).1
Account 6110 Tax Assessments
(2) All tax assessments must be recorded on Form 23C Assessment Certificate. The Assessment Certificate must be signed by the Assessment Officer and dated. The Assessment Certificate is the legal document that permits collection activity.
Internal Revenue Manual 3(17)(46) 2.3
(1) All assessments must be certified by signature of an authorized official on Form 23-C, Assessment Certificate. A signed Form 23C authorizes issuance of notices and other collection action.
(2) Some assessments are prescribed for expeditious action and may be certified on a daily basis. These assessments will require immediate preparation of Form 23C from RACS.
Form 23C is described in Document 7130, IRS Printed Product Catalog as:
23C - Assessment Certificate-Summary Record of Assessments
Form 23C is used to officially assess tax liabilities. The completed form is retained in the Service Center case file as a legal document to support the assessment made against the taxpayer. This status notice is reissued to update the status notice file.
TR:R:A Internal Use
CURLEY v. U.S. Cite as 791 F. Supp 52 (E.D.N.Y. 1992)-  Plaintiff relies heavily on Brafman v. United States, 384 F.2d 863 (5th Cir. 1967), where an assessment was invalidated due to the lack of a signature on the 23C Form. This defect, however, was a significant violation of the regulation-
A signature requirement protects the taxpayer by ensuring that a responsible officer has approved the assessment -764 FEDERAL ********** Page 315
BREWER v. U.S. Cite as 764 F.Supp. 309 (S.D.N.Y. 1991)However, there is no indication in the record before us that the "Summary Report of Assessments", known as Form 23C, was completed and signed by the assessment officer as required by 26 CFR § 301.6203-1.3 Nor do the Certificates of Assessments and Payments contain 23C dates which would allow us to conclude that a Form 23C form was signed on that date. See United States v. Dixon, 672 F. Supp. 503, 505-506 (M.D.Ala.1987). Thus we find that the plaintiff has raised a factual question concerning whether IRS procedures were followed in making the assessments - This regulation provides, in relevant part, that "[t]he assessment shall be made by an assessment officer signing the summary record of assessment”
The assessment process regarding federal income taxes is a matter controlled by statutes and regulations. In the 1954 and 1986 Internal Revenue Codes, §6201(a) authorizes the Secretary of the Treasury to make assessments. The method of recording such an administrative act is governed by §6203, which provides:
"The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of assessment."
Were You Legally Assessed?
Have you requested yours??? Were you legally assessed? Without a legal assessment there can legally be no collection activity. Don’t get upset - exhaust your administrative remedies first. Even the IRS admits this legal assessment procedure with Form 23-C is rarely used as documented below. Here are a couple recent sample responses -
---------------------------------The specific tax regulation concerning the assessment process is 26 C.F.R., §301.6203- 1, which reads in pertinent part: "The district director and the director of the regional service center shall appoint one or more assessment officers - The assessment shall be made by an assessment officer signing the summary record of the assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment. The amount of the assessment shall, in the case of tax shown on a return by the taxpayer, be the amount so shown, and in all other cases the amount of the assessment shall be the amount shown on the supporting list or record." [Emphasis added].
In Internal Revenue Manual 5312(1), MT 5300-1 (11-15-85), this assessment process is further clarified: "(1) The assessment is made by an assessment officer designated by the District Director or Service Center Director, as appropriate. The assessment officer signs a Form 23-C, Assessment Certificate, and this record, through supporting data, provides identification of the taxpayer by name and number, the taxable period, the nature of the tax and the amount assessed."
"(3) - The assessment lists support the assessment certificate, which is used to summarize and record the official action of the assessment officer." [Emphasis added].
Thus, by the Service's own admission in its IR Manual, "[t]he assessment lists only support the assessment certificate - " Pursuant to Fed.R.Evid. 801(d)(2)(D), this is a party admission that an assessment list must exist; see United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989)(government manuals admissible as party admissions under Fed.R.Evid. 801(d)(2)(D)). There can be no dispute that the assessment list is the supporting record and is absolutely essential before a valid assessment is made. Further, the regulation contemplates a signed document. This is consistent with the supporting statute which provides that the taxpayer is entitled to a copy, which implies that a hard copy exists.
In addition to the above IRM provision which shows that Form 23-C is the assessment form, established decisional authority also shows that a tax assessment is made upon Form 23-C. For example, in Meyersdale Fuel Co. v. United States, 44 F.2d 437, 443 (Ct.Cl. 1930), this form was mentioned: "When the Commissioner of Internal Revenue makes an assessment of taxes he signs a list entitled 'Commissioner's assessment list' on Form 23C-1."
In Brafman v. United States, 384 F.2d 863 (5th Cir. 1967), there was also a demonstration of how tax assessments are executed upon Form 23-C. There, the government sought to attach liability for unpaid estate taxes to an heir of that estate under a transferee liability theory. But, Mrs. Brafman argued that she was not so liable because the assessment certificate relevant in that case was unsigned. In agreeing with that argument and holding the certificate at issue void, that court stated:
"The assessment certificate involved in this case, a photostated [sic] copy of which is in the record, is not signed by an assessment officer or by any other official. Since the certificate lacks the requisite signature, it cannot constitute a valid assessment," Id., at 865-66.
"Even the instructions on the reverse side of the assessment certificate, Form 23C, specify that the original form 'is to be transmitted to the District Director for signature, after which it will be returned to the Accounting Branch for permanent filing,'" Id., at 866.
"What is important in any case is that assessment is not automatic upon recordation; it requires the action of an assessment officer. That action, as defined explicitly in the Treasury Regulations, is the signing of the certificate," Id., at 867.
See also Stallard v. United States, 806 F.Supp. 152, 158 (W.D.Tex. 1992)("Defendant submitted a 'Form 23C' which it asserts is a summary record of assessment").
Several cases disclose the type of information which must be contained on a Form 23-C tax assessment record and its supporting list. For example, in Ianelli v. Long, 329 F.Supp. 1241, 1242 (W.D.Pa. 1971), that description of the various data was as follows: "The procedure for assessment provides, inter alia, that the assessment officer shall sign the summary record of assessments made against any tax payer, that said action, through supporting records, shall provide identification of the tax payer, the character of the liability assessed, the taxable period as applicable, and the amount of the assessment. The date of the assessment is the date the summary record is signed by an assessment officer. 26 U.S.C.A. § 301.6203-1, Code of Federal Regulations. Since this procedure was not followed, the assessment is void and the executions based thereon are invalid."
In Planned Investments, Inc. v. United States, 881 F.2d 340, 343 (6th Cir. 1989), the court examined the requirements of 26 C.F.R., §301.6203-1, and stated: "Section 6203 of Subchapter A provides that assessment be made by recording the liability in accordance with the regulations promulgated by the Secretary. 26 U.S.C. § 6203 - Treasury regulations provide that the assessment be made by signing the summary record of assessment. 26 CFR § 301.6203-1. The summary record, through supporting documents, must contain the following:
1. identification of the taxpayer;
2. character of liability assessed;
3. taxable period, if applicable; and
4. amount of assessment."
Finally, the court in Robinson v. United States, 920 F.2d 1157, 1158 (3rd Cir. 1990), described the assessment process as: "A duly designated official for the district or regional tax center signs the summary record of the assessment, which identifies the taxpayers, the type of tax owed, the taxable period and the amount of the assessment. 26 U.S.C. §6203; Treas. Reg. §301.6203-1."
Therefore, from the above authority, the documents which are executed in making an assessment are clearly known. First, the assessment is made on a Form 23-C. This assessment form may apply either to a single individual or a group. The supporting documentation for a Form 23-C is the assessment lists, which must contain (1) the identification of the taxpayer; (2) character of liability assessed; (3) taxable period, if applicable; and (4) amount of the assessment. If these documents do not exist, the absence proves that there has been no assessment and consequently, no tax collection activities may be pursued.
But further, 26 U.S.C., §6203, which governs the process of making tax assessments, simply cannot be construed as a statute creating a conclusive presumption that taxes are due once assessed. To give conclusive effect to this statute would violate the due process clause and deny a defendant the ability to contest the assessment; see Heiner v. Donnan, 285 U.S. 312, 329, 52 S.Ct. 358 (1932); Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241 (1943); United States v. Romano, 382 U.S. 136, 139, 86 S.Ct. 279 (1965); Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532 (1969); Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 2233 (1973)("Statutes creating permanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments"); Baker v. United States, 395 F.2d 368, 370 (8th Cir. 1968); Stump v. Bennett, 398 F.2d 111, 118 (8th Cir. 1968); United States v. Bowen, 414 F.2d 1268, 1273 (3rd Cir. 1969)" (No administrative agency, nor even a legislature, may make the proof of one fact conclusive proof of another fact in any proceeding, civil or criminal, to the detriment of a private party"); United States v. Lake, 482 F.2d 146, 149 (9th Cir. 1973); United States v. Belgrave, 484 F.2d 915 (3rd Cir. 1973); United States v. Boucher, 509 F.2d 991 (8th Cir. 1975); and Allen v. County Court, Ulster County, 568 F.2d 998, 1005 (2nd Cir. 1977). Consequently, §6203 cannot be construed in such a manner as to make tax assessments conclusive even in civil cases; at most, assessments only create a rebuttable, prima facie case that taxes are due. Surely in a criminal case, §6203 can't be construed as creating an irrebuttable presumption; see Holland v. United States, 348 U.S. 121, 126, 75 S.Ct. 127 (1954)
Rebuttable Presumption: An assumption that is made in the law that will stand as a fact unless someone comes forward to contest it and prove otherwise. This "presumption" will stand as a legal fact unless it is contested and proven to be wrong.
DOJ Dismisses Felony Tax Prosecution
-- With Prejudice -- After PRA Defense Raised
Evidence OMB Complicit In Income Tax Fraud
DOJ & IRS Petitioned To Explain
On May 12, 2006 in Peoria, Illinois, the attorney for the U.S. Department of Justice (DOJ) begged the court to dismiss all charges against IRS victim Robert Lawrence in federal District Court. The motion for dismissal came on the heels of a surprise tactic by Lawrence's defense attorney Oscar Stilley.
The tactic threatened exposure of IRS's on-going efforts to defraud the public. The move put DOJ attorneys in a state of panic that left them with only one alternative: beg for dismissal, with prejudice.
Stilley's tactic paid off. Sixty days earlier, the DOJ had indicted Lawrence on three counts of willful failure to file a 1040 form, and three felony counts of income tax evasion. The federal Judge dismissed all charges with prejudice, meaning the DOJ cannot charge Lawrence with those crimes again.
The trial was to have started on Monday morning, May 15th.
On Wednesday, May 10, Stilley mailed a set of documents to the DOJ in response to DOJ's discovery demands. The documents revealed to DOJ for the first time that Lawrence was basing his entire defense on an act of Congress, 44 U.S.C. 3500 ' 3520, also known as the "Paperwork Reduction Act" (PRA).
In Section 3512 of the Act, titled "Public Protection," it says that no person shall be subject to any penalty for failing to comply with an agency's collection of information request (such as a 1040 form), if the request does not display a valid control number assigned by the Office of Management and Budget (OMB) in accordance with the requirements of the Act, or if the agency fails to inform the person who is to respond to the collection of information that he is not required to respond to the collection of information request unless it displays a valid control number.
In Section 3512 Congress went on to authorize that the protection provided by Section 3512 may be raised in the form of a complete defense at any time during an agency's administrative process (such as an IRS Tax Court or Collection and Due Process Hearing) or during a judicial proceeding (such as Lawrence's criminal trial).
In sum, the PRA requires that all government agencies display valid OMB control numbers and certain disclosures directly on all information collection forms that the public is requested to file. Lawrence's sole defense was he was not required to file an IRS Form 1040 because it displays an invalid OMB control number.
Government officials knew that if the case went to trial, it would expose the fraudulent, counterfeit 1040. They also must have known that a trial would expose the ongoing conspiracy between OMB and IRS to publish 1040 forms each year that those agencies knew were in violation of the PRA. That would raise the issue that the Form 1040, with its invalid control number, is being used by the Government to cover up the underlying constitutional tort -- that is, the enforcement of a direct, unapportioned tax on the labor of every working man, women and child in America.
Any information collection form, such as IRS Form 1040, which lacks bona fide statutory authority or which conflicts with the Constitution, cannot be issued an OMB control number. If a control number were issued for such a form, the form would be invalid and of no force and effect.
Under the facts and circumstances of the last 24 years, it is safe to say that IRS Form 1040 is a fraudulent, counterfeit, bootleg form. Government officials responsible for this fraud should be investigated and face indictment for willfully making and sponsoring false instruments.
Caught between a rock and a hard place, the DOJ and IRS decided not to let the Lawrence case proceed because it would reveal one critical and damning fact:
The PRA law protects those that fail to file IRS bootleg Form 1040
The DOJ knew that it stood a significant chance of losing the case, and if that happened, the press and others would quickly spread the word, and leave only fools to ever file a 1040 again. Oscar Stilley's pleadings and documents made these points quite clear:
* IRS Form 1040 violates the federal Paperwork Reduction Act (PRA) and is therefore a legally invalid form.
* Under the Public Protection clause of the PRA, no person can be penalized for failing to file a 1040 if the IRS fails to fully comply with the PRA.
* The PRA statutes explicitly provide that a PRA challenge is a complete defense and can be raised in any administrative or judicial proceeding.
* The IRS Individual Form 1040 has not and cannot comply with the requirements of the PRA because no existing statute authorizes the IRS to impose or collect the federal income tax from individuals. That lack of bona fide authority makes it impossible for IRS to avoid violating the PRA.
We The People Foundation has researched the facts, law and circumstances surrounding this case, and has determined that:
* A public trial would have opened a "Pandora's Box" of legal evidence and government testimony under oath that would establish the IRS 1040 form as both fraudulent and counterfeit.
* Oscar Stilley's PRA defense "checkmated" the DOJ and IRS
* The Office of Management and Budget (OMB) appears to have been complicit with IRS in deceiving the public and in helping perpetuate the 1040 fraud by promulgating federal regulations that negate the plain language of the PRA laws passed by Congress and by allowing the IRS to continually skirt the explicit requirements of those statutes
The DOJ knew that it stood a significant chance of losing the case, and if that happened, the press and others would quickly spread the word, and leave only fools to ever file a 1040 again. Oscar Stilley's pleadings and documents made these points quite clear:
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