IN THE UNITED STATES DISTRICT COURT,
NORTHERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case # 96-CR-113-C
)
DAN MEADOR, )
)
Defendant. )
______________________________)
Brief in Support of Motion for
Summary Judgment to Arrest Judgment
Introduction
Now comes Dan Meador, a native of Kansas and current Citizen
and qualified Elector of Oklahoma, one of several States party to
the Constitution of the United States, per Immigration and
Nationality Act definition, a "national of the United States" (8
U.S.C. 1101(a)(21) & (22)), and by Internal Revenue Code
definition, a "nonresident alien of the United States" (IRC
7701(b)).
Per order of Senior Judge Dale H. Cook, the Government, by
way of Neal B. Kirkpatrick, responded to defendant motions
submitted on the sixth business day following trial. The three
motions were, (1) a motion to arrest judgment, (2) a motion to
acquit, and (3) a motion for new trial. This brief specifically
supports the motion to arrest judgement, premised on Rule 34,
F.R.Cr.P.:
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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Rule 34. Arrest of Judgment
The court on motion of a defendant shall arrest judgment if
the indictment or information does not charge an offense or
if the court was without jurisdiction of the offense ....
More accurately, Mr. Kirkpatrick allegedly responded to the
motions. He did not address matters concerning jurisdiction,
character of the party where the defendant is concerned, the
character and capacity of the Internal Revenue Service, the fact
that the "United States of America" is not authorized as
plaintiff or defendant in Titles 18, 26 or 28 of the United
States Code, the fact that the "United States District Court" is
an Article IV territorial court of the United States which has
absolutely no Article III authority, the fact that the United
States District Court is a legislative admiralty court that is
incompetent at law as contemplated in the "arising under" clause
at Article III, Sec. 2.1 and the Fourth, Fifth, Sixth, and
Seventh Amendments to the Constitution of the United States, etc.
Accordingly, the U.S. attorney and the Plaintiff, "United
States of America", are subject to the doctrine of estoppel by
acquiescence, pursuant to Carmine v. Bowen, 64 A. 932 (1906), and
by way of silence has effected fraud, pursuant to U.S. v. Tweel,
550 F.2d 297, 299 (1977). In particular, the fraud is against the
Constitutional Oath of Office, required at Article VI, Sec. 3 of
the Constitution of the United States, which is prescribed as
necessary for holding public office for United States Government
or governments of the several States party to the Constitution.
This case, the Moore-Gunwall case, and a multitude of
others, emerge from what amounts to institutionalized tyranny.
The scheme is effected by encroachment of interests operating
under the guise of territorial United States authority spread
inland to the several States party to the Constitution. However,
the scheme has been unraveled sufficiently to demonstrate how it
works and to detail proper limits of authority. Thus, this
lengthy brief that consolidates relevant elements of fact and law
in a single instrument.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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The United States Supreme Court addressed the matter at hand
in New York v. United States, et al. (1992): The Separation of
Powers Doctrine, framed in Article II of the Articles of
Confederation and the Tenth Amendment to the Constitution of the
United States, prevents Federal government from exercising powers
in the several States party to the Constitution which are not
specifically enumerated in the Constitution. The question is not
what powers Government should have, the high court said, but what
powers are delegated. Those who exceed delegated authority
invariably do so for self-serving ends.
In our unique system, State and Federal governments serve as
the antipodes of power, both deriving what authority they have
from the sovereign American people by way of applicable
constitutions. The Tenth Amendment draws a clear line between the
two -- each of the several States has original and exclusive
jurisdiction within territorial bounds save where the United
States has acquired land for constitutionally authorized use, the
State legislature has ceded jurisdiction, and Congress has
formally accepted jurisdiction. (Art. I, Sec. 8.17, Constitution
of the United States). Congress has plenary power, serving more
or less in the capacity of State and general government, only
where the United States owns land and has secured exclusive
territorial jurisdiction (Article IV, Sec. 3.2, Constitution of
the United States). Where the several States party to the
Constitution are concerned, the United States has delegated and
limited power; where land owned by the United States is
concerned, Congress has plenary or permissive power and can
allegedly do anything not expressly prohibited by the
Constitution.
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The scheme currently known as Cooperative Federalism --
previously known as Corporatism, sometimes referred to simply as
Federalism, with the school of thought identified as Fabian
Communism contributing significantly to the fraud -- relies on
governments of the Union of several States accommodating Federal
authority which is not delegated by the Constitution.
Enough hard evidence in law and the historical record has
been unearthed to avoid constructive pleadings. For example, the
Internal Revenue Service is an agency of the Department of the
Treasury, Puerto Rico, which has authority exclusively in United
States territorial and maritime jurisdiction. So far as the
Continental United States is concerned, IRS has no legislatively
or administratively-delegated authority -- the agency merely
operates on contract to develop and maintain systems and provide
record-keeping services for the Treasury Department.
The United States, under emergency proclamation endorsed by
Congress in special session March 9, 1933, operates under a
system of "positive law" which is premised on the lineage of
Roman Civil Law. Since Erie Railroad v. Tompkins (1938), this
system of statutory law has been exclusive of common law
indigenous to forty-nine of the States party to the Constitution.
Yet common law remains in full force and effect in the several
States, as evidenced by several recent decisions by the Supreme
Court of Oklahoma:
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Common law remains in full force unless constitutional
clause or statute explicitly provides to contrary; common
law's legislative abrogation may not be effected by mere
implication, but rather must be clearly and plainly
expressed. Greenberg v. Wolfberg, Okla., 890 P.2d 895
(1994), answer to certified question conformed to 54 F.3d
787, certiorari denied 116 S.Ct. 1847, 134 L.Ed.2d 948.
Presumption favors preservation of common-law rights. Tate
v. Browning-Ferris, Inc., Okla. 833 P.2d 1218 (1992).
Mr. Kirkpatrick and peers in both the office of the United
States Attorney and the Department of Justice would deny the
force and effect of common law -- the United States does not
acknowledge common law, Mr. Kirkpatrick alleges -- and treat the
nation as a seamless garment rather than a patchwork of fifty
semi-sovereign republics subject only to Congress'
constitutionally delegated authority. Yet in United States of
America v. Lopez (1995), the Supreme Court effectively served
notice: The United States does not have plenary power in the
several States party to the Constitution of the United States.
The Constitution does not grant the United States police powers
in the several States party to the Constitution -- this matter
was addressed at length in United States v. Constantine, 296 U.S.
233 (December 1935) relating to repeal of the Eighteenth
Amendment by ratification of the Twenty-First in December 1933.
In addition to territorial jurisdiction (venue
jurisdiction), Mr. Kirkpatrick continues to equivocate concerning
character of the party: I am not a "citizen of the United
States" in the sense of the colorable citizenship created by
Section 1 of the Fourteenth Amendment. I am a native of Kansas
and currently am a Citizen of Oklahoma -- my lineage is that of
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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sovereignty articulated by American founders in the Declaration
of Independence and the Preamble to the "Constitution for the
united States of America". I do not rely on State or Federal
government to grant "civil rights", but as the Founders
articulated in the Declaration of Independence, was endowed by my
Creator with certain unalienable rights which cannot be abridged
or infringed on by Government save as authority is specifically
delegated by applicable constitutions or I expressly grant
permission.
Unfortunately, the Fourteenth Amendment citizen-subject
enjoys only civil rights and benefits created by and granted from
Government. This fraud has been addressed time and again, with
one of the more important decisions as follows:
In common usage, term "persons" does not include the
sovereign, and statutes employing it will ordinarily not be
construed to do so. United States v. United Mine Workers
(1947) 330 U.S. 258, 91 L.Ed. 884, 67 S.Ct. 677.
In order to evade the fact of my sovereignty, Mr.
Kirkpatrick has employed the common device of utilizing a nomme
de guerre, the fictitious DAN MEADOR, DAN LESLIE MEADOR, MEADOR,
etc./1 These fictional names/2 constitute fraud of the first
order -- I am Dan Leslie, Meador, with only the first letters of
____________________
1 "Nomme de guerre - , lit. 'war-name', a name assumed by, or
assigned to, a person engaged in some action or enterprise."
(Oxford English Dictionary, 1971 edition)
2 "Fictitious name. A counterfeit, alias, feigned, or
pretended name taken by a person, differing in some
essential particular from his true name (consisting of
Christian name and patronymic), with the implication that it
is meant to deceive or mislead." (Black's Law Dictionary,
6th edition) Where the instant matter is concerned, the
nomme de guerre or fictitious name has been manufactured and
assigned by Mr. Kirkpatrick as a mns to evade the fact of my
sovereignty.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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my Christian and patronymic names spelled with capital letters,
the balance of each spelled with lower case letters. Yet Mr.
Kirkpatrick, in what amounts to actionable fraud for constructive
willfulness and malicious prosecution, has persisted in employing
the fiction to further his own purpose at my expense. The court
has thus far accommodated the fraud by having denied all
defendant pleadings prior to trial while failing to judicially
determine substantive rights, legal relationships, and
application of law, jurisdictional matters included. In general,
the complicity of nonfeasance and malfeasance has been
detrimental, but faith moves the matter forward -- Paul's remedy
for the reprobate is to shine light into the darkness of intent.
Many of the particulars addressed in the balance of this
response have already been cited and otherwise placed into record
by way of or as exhibits attached to pleadings. However, it is in
the interest of all concerned, particularly with respect to
appeals if such are necessary, to bring matters forward in an
integrated instrument which demonstrates the scope of fraud
effected by Mr. Kirkpatrick and other perpetrators of the
Cooperative Federalism scheme.
I. Character & Jurisdiction of IRS;
Application of IRC Taxing Authority
During the course of trial, Ms. Tracy Foster, an inspector
with the Internal Revenue Service, was the chief Government
witness. In her testimony, Ms. Foster acknowledged that all
complaints in this case (2 x under 18 U.S.C. 1504 and 1 x under
section 1503) were registered by her in her capacity as an IRS
inspector, and all complaints in the Moore-Gunwall case (96-CR-
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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82-C; 18 U.S.C. 2, 371 & 1341 and 26 U.S.C. 7212(a)). Ms. Foster
also claimed responsibility for personally arresting or having
Mr. Wayne Gunwall arrested in the parking lot outside the Wal-
Mart store in Ponca City, Oklahoma, and for convening the grand
jury which met in November 1995 to investigate "common law
courts" in Oklahoma. Therefore, the Internal Revenue Service, or
whatever principal the Service represents, will be construed as
the party of interest in all matters relating to this case.
In post-trial motions submitted in this case, I used an
improper term to cite Ms. Foster's testimony -- I "stipulated"
where I should have "alleged" that the court was therefore
sitting in whatever capacity applies where IRS is the moving
party where the instant matter is concerned, where the Moore-
Gunwall case is concerned, and where the November 1995 grand jury
is concerned. Regardless of the incorrect term, Mr. Kirkpatrick
failed to contest the allegation so effectively confessed that
the Internal Revenue Service, or whatever principal of interest
the Internal Revenue Service represents, is the true plaintiff
behind prosecution of this case and the Moore-Gunwall case and
the November 1995 grand jury investigation. The averment,
allegation or whatever then stands: Until proven otherwise, the
Internal Revenue Service was the moving party responsible for
conduct of the November 1995 Federal grand jury investigation of
Oklahoma "common law courts", and was responsible for prosecution
of UNITED STATES OF AMERICA v. DAN LESLIE MEADOR, #96-CR-113-C
and of UNITED STATES OF AMERICA v. KENNEY F. MOORE et al., case
#96-CR-82-C.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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As all other actual agencies of Government, the Internal
Revenue Service has a source of origin, and the Internal Revenue
Code of 1954, as amended in 1986 and since ("IRC"), has a source
or sources of origin. In other words, government operates under
the same principle as physics -- "Nothing comes from nothing."
There must be a source of authority, and law which the authority
enacts applies within the bounds of authority exercised. Where
the instant matter is concerned, determining geographical bounds
for IRS delegated authority and IRC taxing authority is
fundamental. This involves tracking three converging historical
lines to document the scope of fraud, but there is a shortcut to
demonstrate geographical limitations. The source is IRC 7621:
Sec. 7621. Internal revenue districts
(a) Establishment and alteration.
The President shall establish convenient internal revenue
districts for the purpose of administering the internal
revenue laws. The President may from time to time alter such
districts.
(b) Boundaries.
For purpose mentioned in subsection (a), the President may
subdivide any State or the District of Columbia, or may
unite into one district two or more States.
The President, by way of Executive Order No. 10289,
delegated authority to the Secretary of the Treasury to establish
revenue districts by way of the above-cited statute. Confirmation
of this source of authority is found at 26 CFR, Part 301.7621-1:
Sec. 301.7621-1 Internal revenue districts.
For delegation to the Secretary of authority to prescribe
Internal Revenue districts for the purpose of administering
the internal revenue laws, see Executive Order No. 10289,
dated September 17, 1951 (16 FR 9499), as made applicable to
the Code by Executive Order No. 10574, dated November 5,
1954 (19 FR 7249).
The President's authority to re-delegate responsibility for
establishing revenue districts is at 3 U.S.C. 301:/3
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Sec. 301. General authorization to delegate functions;
publication of delegations
The President of the United States is authorized to
designate and empower the head of any department or agency
in the executive branch, or any official thereof who is
required to be appointed by and with the advice and consent
of the Senate, to perform without approval, ratification, or
other action by the President (1) any function which is
vested in the President by law, or (2) any function which
such officer is required or authorized by law to perform
only with or subject to the approval, ratification, or other
action of the President: Provided, That nothing contained
herein shall relieve the President of his responsibility in
office for the acts of any such head or other official
designated by him to perform such functions. Such
designation and authorization shall be in writing, shall be
published in the Federal Register, shall be subject to such
terms, conditions, and limitations as the President may deem
advisable, and shall be revocable at any time by the
President in whole or in part.
(Added Oct. 31, 1951, ch. 655, Sec. 10, 65 Stat. 712.)
E.O. No. 10289 is as follows:
Ex. Ord. No. 10289. Delegation of Functions To Secretary of
the Treasury
Ex. Ord. No. 10289, Sept. 17, 1951, 16 F.R. 9499, as amended
by Ex. Ord. No. 10583, Dec. 18, 1954, 19 F.
R. 8725; Ex. Ord. No. 10882, July 18, 1960, 25 F.R. 6869;
Ex. Ord. No. 11110, June 4, 1963, 28 F.R. 5605; Ex. Ord.
No. 11825, Dec. 31, 1974, 40 F.R. 1003; Ex. Ord. No. 12608,
Sept. 9, 1987, 52 F.R. 34617, provided:
1. The Secretary of the Treasury is hereby designated and
empowered to perform the following-described functions of
the President without approval, ratification, or other
action of the President:
(a) The authority vested in the President by section 1 of
the act of August 1, 1914, ch. 223, 38 Stat. 609, 623, as
amended [19 U.S.C. 2], (1) to rearrange, by consolidation or
otherwise, the several customs-collection districts, (2) to
____________________
3 3 U.S.C. 301, E.O. No. 10289, and subsequent cites from
Title 4 of the United States Code are from the 1994 edition
of the United States Code produced by the United States
Government Printing Office, Washington: 1995. Cites from
the Internal Revenue Code are from the 1996 edition produced
by the Research Institute of America, Inc., 1996 edition.
discontinue ports of entry by abolishing the same and
establishing others in their stead, and (3) to change from
time to time the location of the headquarters in any
customs-collection district as the needs of the service may
require.
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(b) The authority vested in the President by section 1 of
the Anti-Smuggling Act of August 5, 1935, c. 438, 49 Stat.
517 [19 U.S.C. 1701], (1) to find and declare that any place
or within any area on the high seas adjacent to but outside
customs waters any vessel or vessels hover or are being kept
off the coast of the United States and that, by virtue of
the presence of any such vessel or vessels at such place or
within such area, the unlawful introduction or removal into
or from the United States of any merchandise or person is
being, or may be, occasioned, promoted, or threatened, (2)
to find and declare that certain waters on the high seas are
in such proximity to such vessel or vessels that such
unlawful introduction or removal of merchandise or persons
may be carried on by or to or from such vessel or vessels,
and (3) to find and declare that, within any customs-
enforcement area, the circumstances no longer exist which
gave rise to the declaration of such area as a customs-
enforcement area.
(c) The authority vested in the President by section 1 of
the Act of August 26, 1985, Public Law 98-89, 97 Stat. 510
(46 U.S.C. 3101); to suspend the provisions of law
requiring the inspection of foreign-built vessels admitted
to American registry.
(d) The authority vested in the President by section 5 of
the act of May 28, 1908, ch. 212, 35 Stat. 425, as amended
(46 U.S.C. Appendix 104), to determine (as a prerequisite to
the extension of reciprocal privileges by the Commissioner
of Customs) that yachts used and employed exclusively as
pleasure vessels and belonging to any resident of the United
States are allowed to arrive at and depart from any foreign
port and to cruise in the waters of such port without
entering or clearing at the custom-house thereof and without
the payment of any charges for entering or clearing, dues,
duty per ton, tonnage taxes, or charges for cruising
licenses.
(e) The authority vested in the President by section 2 of
the act of March 24, 1908, ch. 96, 35 Stat. 46 (46 U.S.C.
Appendix 134), to name the hospital ships to which section 1
of the said act [46 U.S.C. Appendix 133], shall apply and to
indicate the time when the exemptions thereby provided for
shall begin and end.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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(f) The authority vested in the President by section 4228 of
the Revised Statutes, as amended (46 U.S.C. Appendix 141),
(1) to declare that -- upon satisfactory proof being given
by the government of any foreign nation that no
discriminating duties or tonnage or imports are imposed or
levied in the ports of such nation upon vessels wholly
belonging to citizens of the United States, or upon the
produce, manufactures or merchandise imported in the same
from the United States or from any foreign country -- the
foreign discriminating duties of tonnage and impost within
the United States are suspended and discontinued, so far as
respect the vessels of such foreign nation, and the produce,
manufactures, or merchandise imported into the United States
from such foreign nation, or from any other foreign country,
and (2) to suspend in part the operation of section 4219 of
the Revised Statutes, as amended (46 U.S.C. Appendix 121),
and section IV, J, subsection 1 of the act of October 3,
1913, c. 16 38 Stat. 195, as amended (46 U.S.C. Appendix
146), so that foreign vessels from a country imposing
partial discriminating tonnage duties upon American vessels,
or partial discriminating import duties upon American
merchandise, may enjoy in our ports the identical privileges
which the same class of American vessels and merchandise may
enjoy in such country: Provided, That prior to the issuance
of an order of the Secretary of the Treasury suspending and
discontinuing posts, and import duties within the United
States, the Department of State shall obtain and furnish to
the Secretary of the Treasury the proof required by the said
sections 4228, as amended, as the basis for that order.
(g) The authority vested in the President by section 3650 of
the Internal Revenue Code [section 3650 of the Internal
Revenue Code of 1939] [see 26 U.S.C. 7621], to establish
convenient collection districts (for the purpose of
assessing, levying, and collecting the taxes provided by the
internal revenue laws), and from time to time to alter such
districts.
(h) The authority which is now vested in the President by
section 2564(b) of the Internal Revenue Code [section
2564(b) of the Internal Revenue Code of 1939], and which on
and after January 1, 1955, will be vested in the President
by section 4735(b) of the Internal Revenue Code of 1954
[former 26 U.S.C. 4735(b)], to issue, in accordance with the
provisions of the said section 2564(b) or 4735(b), as the
case may be, orders providing for the registration and the
imposition of a special tax upon all persons in the Canal
Zone who produce, import, compound, deal in, dispense, sell,
distribute, or give away narcotic drugs.
(i) The authority vested in the President by Section 5318 of
the Revised Statutes, as amended (19 U.S.C. 540), to employ
suitable vessels other than Coast Guard cutters in the
execution of laws providing for the collection of duties on
imports and tonnage: [...]
2. The Secretary of the Treasury is hereby designated and
empowered to perform without the approval, ratification, or
other action of the President the following functions which
have heretofore, under the respective provisions of law
cited, required the approval of the President in connection
with their performance by the Secretary of the Treasury:
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(a) The authority vested in the Secretary of the Treasury by
section 6 of the act of July 8, 1937, ch. 444, 50 Stat. 480
[40 U.S.C. 728], to make rules and regulations necessary for
the execution of the functions vested in the Secretary of
the Treasury by the said act, as amended.
(b), (c) [Revoked by Ex. Ord. No. 11110, June 4, 1963, 28
F.R. 5605]
(d) [Revoked by Ex. Ord. No. 11825, Dec. 31, 1974, 40 F.R.
1003]
(e) The authority vested in the Secretary of the Treasury by
section 1 of Title II of the act of June 15, 1917, ch. 30,
40 Stat. 220 [50 U.S.C. 191], to make rules and regulations
governing the anchorage and movement of any vessel, foreign
or domestic, in the territorial waters of the United States.
3. (a) The Secretary of the Treasury and the Postmaster
General [now United States Postal Service] are hereby
designated and empowered jointly to prescribe without the
approval of the President regulations, under section 1 of
the act of July 8, 1937, ch. 444, 50 Stat. 479 [40 U.S.C.
721], governing the shipment of valuables by the executive
departments, independent establishments, agencies, wholly-
owned corporations, officers, and employees of the United
States./4
(b) The Postmaster General [now United States Postal
Service] is hereby designated and empowered to exercise
without the approval, ratification, or other action of the
President the authority vested in the President by section
504(b) of Title 18 of the United States Code to approve
regulations issued by the Secretary of the Treasury under
the authority of the said section 504(b) (relating to the
printing, publishing, or importation, or the making or
importation of the necessary plates for such printing or
publishing, of postage stamps for philatelic purposes ) (see
section 504(2) of title 18], and to approve any amendment or
repeal of any of such regulations by the Secretary of the
Treasury.
____________________
4 As is the case for other liabilities with civil and/or
criminal implications, authority to prosecute "mail fraud"
and the like must originate somewhere, and there must be
specific application. Section 3(a) of E.O. No. 10289
specifies who is liable for authority of the Secretary of
the Treasury and the Postmaster General to regulate and
prosecute mail-related offenses, i.e., 18 U.S.C. 1341. The
Constitution does not grant Congress authority to delegate
articulated powers from one branch of government to another.
Each of the several States party to the Constitution has
mail fraud statutes, and this is where mail fraud offenses
must be prosecuted so long as the alleged offense is
committed within one of the several States rather than in
United States territorial and maritime jurisdictions (see
Article III, Section 2.3 of the Constitution of the United
States).
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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4. As used in this order, the term "functions" embraces
duties, powers, responsibilities, authority, or discretion,
and the term "perform" may be construed to mean "exercise".
5. All actions heretofore taken by the President in respect
to the matters affected by this order and in force at the
time of the issuance of this order, including regulations
prescribed by the President in respect of such matters,
shall, except as they may be inconsistent with the
provisions of this order, remain in effect until amended,
modified, or revoked pursuant to the authority conferred by
this order.
[emphasis added]
Nothing in E.O. No. 10289 refers to Subtitle A & C taxes
(income, Social Security, railroad retirement, unemployment,
etc.), but authority conveyed by this Order is exclusive to
United States maritime and off-shore territorial jurisdiction and
conveys authority relating to customs laws, particularly with
respect to trade of narcotics and other drugs.
One of the more interesting quirks, hinging on terminology,
is that what are described as "internal revenue laws", which
would give rise to "internal revenue districts" (IRC 7621), are
imposts and duties -- so-called income tax, Social Security tax,
etc., are excises. They are classified as a completely different
category; taxes collected under customs laws are defined as
internal revenue laws.
Exercise of authority to change internal revenue districts
under provisions of IRC 7621, along with the Secretary's re-
delegation of authority to the Commissioner of Internal Revenue,
is demonstrated by Treasury Dept. Order 150-42 [1956 Federal
Register, page 5852]:
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 14 of 165
Office of the Secretary
[Treasury Dept. Order 150-42]
Panama Canal Zone, Puerto Rico, and the Virgin Islands
Administration of Internal Revenue Laws
By virtue of the authority vested in me as Secretary of the
Treasury it is hereby ordered:
1. The Panama Canal Zone is removed from the Internal
Revenue District, Jacksonville, and from the Atlanta Region;
and Puerto Rico and the Virgin Islands of the United States
are removed from the Internal Revenue District, Lower
Manhattan, and from the New York City Region.
2. The Commissioner shall, to the extent of authority
otherwise vested in him, provide for the administration of
United States internal revenue laws in the Panama Canal
Zone, Puerto Rico, and the Virgin Islands.
3. This order shall not be deemed to affect the procedures
for administrative appeal existing immediately prior to
August 1, 1956.
4. This order shall be effective as of August 1, 1956.
Dated: July 27, 1956.
[Seal] David W. Kendall,
Acting Secretary of the Treasury.
For clarity concerning jurisdiction, it is useful to
reproduce Delegation Order 36, published the same date on the
same page, effected by the Assistant Commissioner of Internal
Revenue to the Director of International Operations:
[Delegation Order 36]
Authority Extended to Panama Canal Zone, Puerto Rico and the
Virgin Islands
Pursuant to the authority vested in me by Commissioner
Delegation Order No. 33, dated June 6, 1956, it is hereby
ordered:
1. Subject to the limitations contained in paragraph 2,
there are delegated to the Director of International
Operations the functions of administering the United States
internal revenue laws in the Panama Canal Zone, Puerto Rico,
and the Virgin Islands of the United States, and in all
other areas of the world outside the United States and the
territories of Alaska and Hawaii, to the extent of authority
delegated by Commissioner Delegation Order No. 32, dated May
1, 1956.
2. Nothing in this order shall be deemed to affect the
procedures for administrative appeal existing immediately
prior to August 1, 1956, or any function of the Assistant
Regional Commissioner (Alcohol & Tobacco Tax), New York City
Region.
3. This order is effective August 1, 1956.
Dated: July 31, 1956.
[Seal] C. W. Stowe.
Assistant Commissioner
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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Nothing in E.O. No. 10289, T.D.O. 150-42 or D.O. 36 refers
to "income tax" or Social Security and related taxes in Subtitles
A & C of the Internal Revenue Code. Taxes in these two subtitles
are classified as excise taxes, not internal revenue taxes. The
rationale behind this classification is disclosed in the
definition of "income tax" located on page 2580 of the
Congressional Record -- House, for March 27, 1943:
The income tax is, therefore, not a tax on income as such.
It is an excise tax with respect to certain activities and
privileges which is measured by reference to the income
which they produce. The income is not the subject of the
tax: it is the basis for determining the amount of tax.
It is material that in the report, the prohibition against
direct tax articulated in Pollock v. Farmers' Loan and Trust Co.
(1895), 157 U.S. 429; 158 U.S. 601, is cited as being
authoritative concerning direct tax even in 1943. Additionally,
the report recognizes the Brushaber decision as having concluded
that the Sixteenth Amendment did not grant Congress any new power
to tax, but merely clarified authority to levy excise tax (p.
2580).
That aside, whether or not the Sixteenth Amendment was
properly ratified, and what it did or didn't do with respect to
direct taxing authority, is beside the point so far as income,
Social Security (employment) and related taxes are concerned. The
corresponding definition for employee tax is at 26 CFR, Part
31.3101-1:
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Sec. 31.3101-1 Measure of employee tax.
The employee tax is measured by the amount of wages received
after 1954 with respect to employment after 1936 ....
These excise taxes are levied against "certain activities
and privileges measured by reference to the income which they
produce." Analogously, a Puerto Rican rum distiller is taxed on a
per-gallon basis. The gallon is the unit measure. Where Subtitle
A & C taxes are concerned, the measure is denominated in dollars,
but the dollars themselves, or more appropriately, "public
money", constitutes the measure, not the object of these taxes.
The object is the regulated activity or privilege attending
generation of income denominated in dollars.
The questions arise, "Where did this scheme originate? How
did it emerge?" Answers lie in one of the more bizarre tales ever
told -- three initially independent but converging historical
lines are involved. The lineage of "income tax" levied against
wages, salaries, etc., will be treated first.
The original "income tax" levied against wages, salaries,
etc., of Federal government employees was enacted during the
Civil War in the Revenue Act of July 17, 1862 (12 Stat. 432).
This was the same act which established the office of the
Commissioner of Internal Revenue in the Treasury Department --
see details in the Internal Revenue Manual 1100 at 1111.2, the
report published variously in the Federal Register at 36 F.R.
849-890, 36 F.R. 11946, and 37 F.R. 489-490. However, the report
tacitly admits that while Congress created the office of the
Commissioner of Internal Revenue, Congress did not create a
Bureau of Internal Revenue, predecessor to the Internal Revenue
Service.
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This illusion has been dispelled, too. The original office
of the Commissioner of Internal Revenue established in the
Treasury Department was effectively abolished with enactment of
the Revised Statutes of 1873. The current office of Commissioner
of Internal Revenue is not in the Treasury Department -- see IRC
7802 to find that the office is now in the Department of the
Treasury. This presents a variety of problems as the IRC vests
authority in the Treasury Department as the Secretary's delegate
(IRC 7701(a)(12)(A) & 7805(a)), not the Department of the
Treasury. As we move to the second and third historical lines, it
will be demonstrated that IRS and the Department of the Treasury
are Puerto Rico entities, operating out of, or in conjunction
with, Puerto Rico Trust #62 (Internal Revenue).
Following the Civil War, the special government employee
income or kick-back tax was repealed. However, it emerged again
in the first two decades of the Twentieth Century, probably in
1918, and in the Internal Revenue Act of Nov. 23, 1921, was in
place as "Normal Tax" and "Surtax" (Statutes at Large for Sixty-
Seventh Congress, Ch. 136, Nov. 23, 1921, pp. 233 et seq., Title
II -- Income Tax, Part II -- Individuals, Sections 210 & 211).
Those subject to these taxes are identified under "Gross
Income Defined", Sec. 213:
Sec. 213. That for the purposes of this title (except as
otherwise provided in section 233) the term "gross income"
--
(a) Includes gains, profits, and income derived from
salaries, wages, or compensation for personal service
(including in the case of the President of the United
States, the judges of the Supreme and inferior courts of the
United States, and all other officers and employees, whether
elected or appointed, of the United States, Alaska, Hawaii,
or any political subdivision thereof, or the District of
Columbia, the compensation received as such)...
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Title XIV -- General Provisions, Sec. 1400 of the Act of
Nov. 23, 1921, repealed almost all taxes from the Internal
Revenue Act of 1918 (pp. 320 & 321). Those included in the
sweeping repeal included Title II "Income Tax", Title III War-
Profits and Excess-Profits Tax, Title IV Estate Tax, Title V tax
on transportation and other facilities, and insurance, taxes on
soft drinks, ice cream, and similar articles, tax on cigars,
tobacco and manufactures thereof, tax on admissions and dues,
Title IX excise taxes, Title X special taxes, Title XI stamp
taxes, and taxes on employment of child labor.
The so-called income tax system enacted approximately
simultaneous with promulgation of the Sixteenth Amendment in 1913
was severely bashed in numerous court decisions, and was repealed
in 1921/5 as Congress commenced a radical shift in the entire
Federal tax system. As excises and other such taxes were
reinstated, application was exclusively in the geographical
United States subject to Congress' Article IV, Sec. 3.2 plenary
power -- general application taxes mandatory in the several
States party to the Constitution were wiped out.
It is unclear at this juncture whether or not the normal and
surtax imposed by the Internal Revenue Act of Nov. 23, 1921
survived from 1921 until enactment of the Public Salary Tax Act
of 1939, which was implemented as Chapter 1 of the Internal
Revenue Code of 1939. What is clear, however, is that there was
little or no effort to impose these excise taxes on the general
____________________
5 Brushaber v. Union Pacific Railroad Co. (1916) 240 U.S. 1;
William E. Peck and Co. v. Lowe (1918) 247 U.S. 1651, and
Eisner v. Macomber (1920) 252 U.S. 189, were three of the
more important decisions problematic to the Federal "income
tax" system. See notes and the general report, pp. 2580 et
seq., Congressional Record -- House, for March 27, 1943.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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population until the Victory Tax was promulgated in 1942. As was
the case with the Public Salary Tax Act of 1939, the Victory Tax
applied only to elected and appointed officers and employees of
the United States, but patriotic Americans willing to support
World War II divvied up a "fair share" to support the enterprise.
The Victory Tax, enacted for only two years, appears to have
lapsed without being enacted a second time -- people who
voluntarily paid the tax without question simply continued the
practice throughout the war and after.
Federal judges were among those who resisted early on. The
Constitution provides that compensation to Article III judicial
officers of the United States will not be diminished. That
problem appears to have been resolved in the mid-1930's as
"volunteer compliance" was secured by way of contract --
appointments were made contingent to candidates agreeing to
endorse contractual commitments to pay Federal income tax.
A version of the so-called Social Security tax was turned
back as unconstitutional, so the second round, effected in 1935,
was implemented by way of treaty. However, Congress has no
authority to bind the several States party to the Constitution
and the American people at large to treaty agreements which
exceed constitutionally delegated authority -- a treaty may not
be used to amend the Constitution. Thus, the definition of
"State", "United States", and "citizen" at 26 CFR, Part
31.3121(e)-1:
Sec. 31.3121(e)-1 State, United States, and citizen
(a) When used in the regulations in this subpart [Subpart B
-- Federal Insurance Contributions Act (Chapter 21, Internal
Revenue Code of 1954)], the term "State" includes the
District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, the Territories of Alaska and Hawaii before
their admission as States, and (when used with respect to
services performed after 1960) Guam and American Samoa.
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(b) When used in the regulations in this subpart, the term
"United States", when used in a geographical sense, means
the several states (including the Territories of Alaska and
Hawaii before their admission as States), the District of
Columbia, the Commonwealth of Puerto Rico, and the Virgin
Islands. When used in the regulations in this subpart with
respect to services performed after 1960, the term "United
States" also includes Guam and American Samoa when the term
is used in a geographical sense. The term "citizen of the
United States" includes a citizen of the Commonwealth of
Puerto Rico or the Virgin Islands, and, effective January 1,
1961, a citizen of Guam or American Samoa.
[subpart identification added; emphasis added]
This is among the more revealing definitions of State,
United States, and citizen relating to Internal Revenue Code
taxing authority as it treats the status of Alaska and Hawaii
before and after they were admitted to the Union of several
States party to the Constitution and clearly identifies the
"citizen of the United States" with terminology from Section 1 of
the Fourteenth Amendment and United States geographical
authority. Territorial application is limited to Congress'
Article IV, Sec. 3.2 authority in the geographical United States,
and the "citizen of the United States" is identified in terms of
Section 1 of the Fourteenth Amendment, but the citizenship is
geographical in nature just as someone born in one of the several
States is a Citizen of his respective State, not necessarily the
United States. Case decisions and Section 1 of the Fourteenth
Amendment clarify the matter:
A citizen of any one of the States of the union, is held to
be, and called a citizen of the United States, although
technically and abstractly there is no such thing. To
conceive a citizen of the United States who is not a citizen
of one of the States, is totally foreign to the idea, and
inconsistent with the proper construction and common
understanding of the expression as used in the Constitution,
which must be deduced from its various provisions. The
object then to be attained, by the exercise of the power of
naturalization, was to make citizens of the respective
States.
[Ex Parte Knowles, 5 Cal. 300 (1855)]
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We have in our political system a Government of the United
States and a government of each of the several States. Each
one of these governments is distinct from the others, and
each has citizens of its own who owe it allegiance, and
whose rights, within its jurisdiction, it must protect. The
same person may be at the same time a citizen of the United
States and a citizen of a State, but his rights of
citizenship under one of these government will be different
from those he has under the other.
[United States v. Cruikshank, 92 U.S. 542 (1875)]
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges
and immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws. [Section 1,
Fourteenth Amendment (1868)]
The change from 1855 when there was no such thing as a
"citizen of the United States" to 1875 when a "citizen of the
United States" was entitled to dual citizenship was effected by
Section 1 of the Fourteenth Amendment. Originally the Amendment
was intended to accommodate citizenship for African Americans
freed as a result of the Civil War, but in years since has become
a geographical rather than racial citizenship. The intent of the
Fourteenth Amendment was framed in the Civil Rights Act of 1866
(14 Stat. 27) in anticipation of ratification:
... [A]ll persons born in the United States and not subject
to any foreign power, excluding Indians not taxes, are
hereby declared to be citizens of the United States; and
such citizens, of every race and color ... shall have the
same right, in every State and Territory in the United
States ... to full and equal benefit of all laws and
proceedings for the security of persons and property, as is
enjoyed by white citizens.
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The "citizen of the United States" was entitled to
"privileges and immunities" where the Preamble Citizen-sovereign
had and has unalienable rights -- rights he is endowed with by
God himself. The Constitution of the United States and
constitutions of the several States merely secure unalienable and
inherent rights recognized and preserved by English-American
common law tradition -- rights construed as substantive, being
antecedent to the constitutions establishing government. However,
the Fourteenth Amendment, where those who received the civil
citizenship franchise are concerned, reverses the order -- the
State, meaning the Federal State subject to Congress' Article IV,
Sec. 3.2 plenary power, is sovereign where the citizen is
subject, enjoying only those rights, privileges and benefits
conferred by Congress. Today, however, the Fourteenth Amendment
isn't so much an issue as citizenship in the geographical United
States -- the United States Code and exercise of Federal
authority is anchored to the geographical United States under
Congress' Article IV, Sec. 3.2 legislative jurisdiction. While
the Fourteenth Amendment plays a significant role in determining
rights and privileges for citizens and residents of the
geographical United States, and it is prudent to distinguish
between the sovereignty of the Citizen of a Union state and the
subject status of citizens of Federal states, territorial
jurisdiction is all-important.
The current Internal Revenue Code sheds light on the subject
with the definition of "United States person" at section
7701(a)(29):
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(29) United States person. The term "United States person"
means --
(A) a citizen or resident of the United States,
(B) a domestic partnership,
(C) a domestic corporation, and
(D) any estate or trust (other than a foreign estate or
foreign trust, within the meaning of section
7701(a)(31)).
The Preamble citizen-sovereign is unique -- he is a moral
being. The "citizen of the United States", enjoying only
privileges and civil rights conferred at the pleasure of
government, is reduced to the status of non-moral legal fictions
-- things rather than people. Thus, the decision in United States
v. United Mine Workers supra: "In common usage, term 'persons'
does not include the sovereign, and statutes employing it will
ordinarily not be construed to do so."
The "character of the party" matter is important so far as
Federal authority over the "person" is concerned, but not really
too important where taxing authority of Subtitles A & C of the
Internal Revenue Code is concerned as citizens of the
geographical United States are also exempt from Subtitle A & C
taxes if they are not government employees. Regardless of
domicile and citizenship, anyone who is not engaged in a United
States "trade or business" is not liable for these taxes, whether
he is a resident or citizen of the District of Columbia, Puerto
Rico, Oklahoma, Kansas or China. The distinction between the
"citizen or resident of the United States" and the "nonresident
alien" of the geographical United States is the rate of tax if
the person happens to be engaged in a United States trade or
business as an "employee".
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For purposes of withholding Subtitle A & C taxes at the
source, the term "employee" is defined in the current IRC at
section 3401(c):
(c) Employee.
For purposes of this chapter, the term "employee" includes
an officer, employee, or elected official of the United
States, a State, or any political subdivision thereof, or
the District of Columbia, or any agency or instrumentality
of any one or more of the foregoing. The term "employee"
also includes an officer of a corporation.
General application definitions at IRC 7701(a)(9) & (10) are
consistent with the definitions of "United States" and "State" at
26 CFR, Part 31.3121(e)-1, to wit:
(9) United States. The term "United States" when used in a
geographical sense includes only the States and the District
of Columbia.
(10) State. The term "State" shall be construed to include
the District of Columbia, where such construction is
necessary to carry out provisions of this title.
Where the Internal Revenue Code is concerned, use of the
terms "includes" and "including" is restrictive, limiting
definitions to classes for which examples are given. This is
determined at IRC 7701(c):
(c) Includes and including.
The terms "includes" and "including" when used in a
definition contained in this title shall not be deemed to
exclude other things otherwise within the meaning of the
term defined.
In other words, when the definition of the term "State"
gives examples only of Federal states subject to Congress'
Article IV, Sec. 3.2 legislative jurisdiction, the definition is
exclusive of the Union of several States party to the
Constitution of the United States. The Union state and the
Federal state are two distinct classes. Two Latin terms frame the
principle/6:
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Noscitur a sociis. It is known from its associates. The
meaning of a word is or may be known from the accompanying
words. Under the doctrine of "noscitur a sociis", the
meaning of questionable or doubtful words or phrases in a
statute may be ascertained by reference to the meaning of
other words or phrases associated with it.
Inclusio unius est exclusio alterius. The inclusion of one
is the exclusion of another. The certain designation of one
person is an absolute exclusion of all others ... This
doctrine decrees that where law expressly describes [a]
particular situation to which it shall apply, an irrefutable
inference must be drawn that what is omitted or excluded was
intended to be omitted or excluded.
The various definitions of "State" and "United States" in
the Internal Revenue Code and other titles of the United States
Code use territories and Federal "states" as examples without
mention of any given State party to the Constitution of the
United States. The definition of "State" and "United States" at
26 CFR, Part 31.3121(e)-1 demonstrates proper application by
inclusion of Alaska and Hawaii prior to the two being admitted to
the Union and exclusion after being admitted to the Union. By
applying the two principles above; the example represents the
class, and that which was omitted or excluded was intended to be
omitted or excluded, IRC use of the terms "includes" and
"including" is clarified. The terms are restrictive with respect
to class, type or kind. For instance, if a definition used "lions
and tigers" as examples, the reference would be to the large cat
family and would necessarily exclude bears and wolves.
____________________
6 Both definitions from Black's Law Dictionary, 6th edition.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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The matter of "United States" character, capacity, or
identity was addressed extensively in Hooven & Allison Co. V.
Evatt, U.S.Ohio, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252
(1945). In the decision, the high court distinguished between
different characters or capacities of the "United States":
The term "United States" may be used in any one of several
senses. It may be merely the name of a sovereign occupying
the position analogous to that of other sovereigns in the
family of nations. It may designate the territory over which
the sovereignty to the United States extends, or it may be
the collective name of the states which are united by and
under the Constitution.
The matter at issue in Hooven was whether or not fiber
imported from the Philippines was an "import" or merely the
transfer of goods within jurisdiction of the United States -- was
the fiber of foreign or domestic origin? The decision to a
certain extent avoided the notion of United States territory
acquired by conquest or treaty being foreign in the sense Mexico,
Canada, European nations, etc., are foreign, but focused instead
on the status of outlying territories under Congress' Article IV,
Sec. 3.2 legislative jurisdiction relative to the several States
party to the Constitution:
... The Constitution has not made the foreign origin of
articles imported the test of importation, but only their
origin in a place over which the Constitution has not
extended its commands with respect to imports and their
taxation. Hence our question must be decided, not by
determining whether the Philippines are a foreign country,
as indeed they have been held not to be within the meaning
of the general tariff laws of the United States ... and
within the scope of other general laws ... but by
determining whether they have been united governmentally
with the United States by and under the Constitution.
That our dependencies, acquired by cession as the result of
our war with Spain, are territories belonging to, but not a
part of, the Union of states under the Constitution, was
long since established by a series of decisions in this
Court beginning with the The Insular Tax Cases in 1901 ...
This status has ever since been maintained in the practical
construction of the Constitution by all the agencies of our
government in dealing with our insular possessions. It is no
longer doubted that the United States may acquire territory
by conquest or by treaty, and may govern it through the
exercise of the power of Congress conferred by Sec. 3 of
Article IV of the Constitution "to dispose of and make all
needful Rules and Regulations respecting the Territory or
other Property belonging to the United States..."
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In exercising this power, Congress is not subject to the
same constitutional limitations, as when it is legislating
for the United States ... And in general the guaranties of
the Constitution, save as they are limitations upon the
exercise of executive and legislative power when exerted for
or over our insular possessions, extend to them only as
Congress, in the exercise of its legislative power over
territory belonging to the United States, has made those
guaranties applicable ... It follows that articles brought
from the Philippines into the United States are imports in
the sense that they are brought from territory, which is not
part of the United States, into the territory of the United
States, organized by and under the Constitution, where alone
the import clause of the Constitution is applicable.
[cites omitted; emphasis added]
In one sense, United States territories and insular
possessions are not foreign, but might better be described as
alien to the several States party to the Constitution in that the
remaining territories are now considered States, but of a
separate and distinct class from the several States party to the
Constitution. However, by particularized definition, and
application of law, they are in a real sense foreign just as one
of the several States, for purposes of its sovereign authority,
is foreign to the others. The matter of foreign status and
foreign countries is addressed in the context of "private
International law" (municipal law), in the section on "Conflict
of Laws" in American Jurisprudence:
Private international law assumes a more important aspect in
the United States than elsewhere, for the reason that the
several states, although united under the same sovereign
authority and governed by the same laws for all national
purposes embraced by the Federal Constitution, are
otherwise, at least so far as private international law is
concerned, in the same relation as foreign countries. The
great majority of questions of private international law are
therefore subject to the same rules when they arise between
two states of the Union as when they arise between two
foreign countries, and in the ensuing pages the words
"state," "nation," and "country" are used synonymously and
interchangeably, there being no intention to distinguish
between the several states of the Union and foreign
countries by the use of varying terminology.
[16 Am.Jur. 2d, "Conflict of Laws", Sec. 2]
[emphasis added]
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Congress has plenary power in the geographical United
States, but only specifically enumerated and delegated powers so
far as the several States party to the Constitution are
concerned. The geographical United States is as much a self-
interested entity as any of the several States party to the
Constitution, so has somewhat the same relationship to each of
the several States party to the Constitution as each State has to
the other -- for purposes of private international law, one is
foreign to the other. Therefore, determination of status must
depend on application of law. The Internal Revenue Code does this
with definitions at IRC 7701(a):
(4) Domestic. The term "domestic" when applied to a
corporation or partnership means created or organized in the
United States or under the law of the United States or of
any State.
(5) Foreign. The term "foreign" when applied to a
corporation or partnership means a corporation or
partnership which is not domestic.
The definitions above are dependent on definitions of
"United States" and "State" at IRC 7701(a)(9) & (10) supra. Both
definitions identify the geographical United States and its
various components, whether they are described as States,
territories, insular possessions, or whatever else -- the Act of
Congress, applicable only in the geographical United States
subject to Congress' Article IV, Section 3.2 legislative
jurisdiction, is foreign to the several States party to the
Constitution of the United States. Fortunately, the matter is
tied together reasonably well by the definition of "foreign
estate or trust" at IRC 7701(a)(31):
(31) Foreign estate or trust. The term "foreign estate" and
"foreign trust" mean an estate or trust, as the case may be,
the income of which, from sources without the United States
which is not effectively connected with the conduct of a
trade or business within the United States, is not
includible in gross income under subtitle A.
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Here taxing authority conveyed in Subtitles A & C of the
Internal Revenue Code is restricted in two ways: (1) these taxes
are mandatory only in the geographical United States subject to
Congress' Article IV, Section 3.2 legislative jurisdiction, and
(2) even in the geographical United States, only those people and
created entities engaged in "United States trade or business"
("... the performance of functions of a public office..." supra)
are subject to the taxes.
These same principles apply where the "person liable" is
concerned. If a reference is to the Native American Indian, it
might use Cherokee, Choctaw and Pawnee tribes as examples.
Depending on the extent of inclusiveness, the definition might
extend to all indigenous North American tribes or some smaller
classification or geographical location. Regardless of the extent
of application within the Native American Indian race, it would
be exclusive of all other races.
The "citizen of the United States" fraud is just as
cumbersome as defining "State" and "United States" so far as
territorial application and type classification is concerned.
However, here we can turn to the Immigration and Nationality Act
for an amount of assistance. At 8 USCS 1101(a)(36), the term
"State" is defined as follows: "(36) The term 'States' includes
(except as used in section 310(a) of title III [8 USCS 1421(a)])
the District of Columbia, Puerto Rico, Guam, and the Virgin
Islands of the United States."/7
____________________
7 The 1978 edition of United States Code Service is being used
for Title 8 definitions.
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Since relatively few Americans who think of themselves as
"citizens of the United States" were born in the District of
Columbia, Puerto Rico, Guam, or the Virgin Islands, all of which
are subject to Congress' Article IV, Section 3.2 authority, the
balance of the American people must have some kind of identity
which maintains their status with respect to the nation and their
respective States, the latter being the Union of several States
party to the Constitution of the United States. This is resolved
in the definition of "national" and application of the term with
respect to the "United States". Both definitions are at 8 USCS
1101(a):
(21) The term "national" means a person owing permanent
allegiance to a state.
(22) The term "national of the United States" means (A) a
citizen of the United States, or (B) a person who, though
not a citizen of the United States, owes permanent
allegiance to the United States.
The "national of the United States" is made reasonably clear
at 26 CFR, Part 1.1-1, reproduced in relative part:
Sec. 1.1-1 Income tax on individuals
(a) General rule. (1) Section 1 of the Code imposes an
income tax on the income of every individual who is a
citizen or resident of the United States and, to the extent
provided by section 871(b) or 877(b), on the income of a
nonresident alien individual...
(c) Who is a citizen. Every person born or naturalized in
the United States and subject to its jurisdiction is a
citizen. For other rules governing the acquisition of
citizenship, see chapters 1 and 2 of title III of the
Immigration and Nationality Act (8 U.S.C. 1401-1459)...
So far as the Immigration and Nationality Act is concerned,
as demonstrated by definitions at 8 U.S.C. 1101(a)(21) & (22), a
vast majority of the American people are Citizens of their
respective union States and nationals of the United States, they
are not citizens of the United States. The "citizen of the United
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States" terminology, particularly in 26 CFR, Part 1.1-1(c), comes
directly from Section 1 of the Fourteenth Amendment. The "citizen
of the United States" is therefore the special case citizen,
whether the African American liberated following the Civil War or
the current citizen of the United States who was born or
naturalized in the geographical United States under Congress'
Article IV, Section 3.2 legislative jurisdiction.
In the meantime, the American people, whether Citizens of
Oklahoma, Kansas, Colorado or any of the other Union states party
to the Constitution, have a common interest -- preservation of
the constitutional republic known as the United States. Thus, the
sovereign Citizen of Oklahoma, Kansas, or Colorado owes and for
the most part maintains permanent allegiance to the United States
and is obliged to comply with laws of the United States when
those laws fall within Congress' Article I delegated authority.
However, where the United States has acquired sufficient
territory to become a sprawling self-interested entity on the
order of a State or coalition of several Federal states subject
to Congress' Article IV, Section 3.2 legislative jurisdiction,
the geographical United States bears approximately the same
relationship to Oklahoma, Kansas and Colorado as one of the
several States party to the Constitution of the United States
does to the other. In other words, the "American Empire" is
comprised of 51 self-interested political entities, the Union of
several States party to the Constitution and the coalition of
Federal states subject to Congress' plenary power. Each of the 51
political entities operates within territorial bounds with each
being foreign to the others.
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For example, Kansas and Oklahoma are sister Union states
sharing a common border, but one is foreign to the other. Kansas
authorities do not enforce Kansas laws and conduct Kansas courts
in Oklahoma; Oklahoma does not enforce Oklahoma laws and set up
Oklahoma courts in Kansas. Each has its own taxing system; each
has its own traffic laws; each has its own enforcement people;
each has its own governor and legislature; each has its own
court system.
Within this scheme, a Citizen of Oklahoma is alien to
Kansas. An Oklahoman living in Oklahoma is a nonresident alien of
Kansas. On the occasion a Citizen of Oklahoma were to drive
through or simply visit someone in Kansas, he would still be a
nonresident alien who was in Kansas either incidentally or for
some specific purpose. On the other hand, a Citizen of Oklahoma
might contract a job and spend several months in Kansas while
doing the work. In that event, he might elect to retain Oklahoma
citizenship, or he might register to take Kansas citizenship. In
the latter case, he would be required to forego Oklahoma
citizenship. Where the several States party to the Constitution
are concerned, citizenship in one is exclusive of citizenship in
another. However, the "citizen of the United States" is something
of a different sort -- he may be a Citizen of one of the several
States and simultaneously retain status as a citizen of the
United States.
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So far as territorial authority is concerned (venue
jurisdiction), each of the several States party to the
Constitution is foreign to the geographical United States and its
various components or political subdivisions: The District of
Columbia, Puerto Rico, Guam, the Virgin Islands, the Northern
Mariana Islands, etc., are foreign to Oklahoma, Kansas, and
Colorado. Likewise, the Citizen of Oklahoma, Kansas, or Colorado
is alien to the geographical United States, comprised of the
District of Columbia, Puerto Rico, Guam, the Virgin Islands and
other geographical entities under Congress' Article IV, Section
3.2 legislative jurisdiction. Where the Citizen of Oklahoma,
Kansas, or Colorado does not live in one of the States under
Congress' Article IV, Section 3.2 legislative jurisdiction, he is
a nonresident alien of the geographical United States.
As is the case for Oklahoma, Kansas, and Colorado, the self-
interested, geographical United States under Congress' Article
IV, Section 3.2 legislative jurisdiction has its own laws, its
own enforcement people, and its own territorial court system, the
latter being the system of United States District Courts. This
matter is clarified in the application of terms located at Rule
54, Federal Rules of Criminal Procedure:/8
(c) Application of Terms. As used in these rules the
following terms have the designated meanings.
"Act of Congress" includes any act of Congress locally
applicable to and in force in the District of Columbia, in
Puerto Rico, in a territory or in an insular possession.
"State" includes District of Columbia, Puerto Rico,
territory and insular possession.
So far as Federal jurisdiction in the Union of several
States is concerned, limits are prescribed at 18 U.S.C. 7(3):
____________________
8 Cites from Titles 18 & 28 of the United States Code, Federal
Rules of Criminal Procedure, Federal Rules of Civil
Procedure, and Federal Rules of Evidence are from 1996
editions of West Publishing Co. U.S.C. unless otherwise
noted.
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(3) Any lands reserved or acquired for the use of the United
States, and under the exclusive or concurrent jurisdiction
thereof, or any place purchased or otherwise acquired by the
United States by consent of the legislature of the State in
which the same shall be, for the erection of a fort,
magazine, arsenal, dockyard, or other needful building.
In order for any given statute in an Act of Congress to have
general application, thus reaching beyond United States
geographical borders, United States maritime jurisdiction, or
government administration (5 U.S.C. 301), legislative regulations
prescribing application must be published in the Federal
Register, per the Federal Register Act (44 U.S.C. 1501 et seq.,
section 1505 specifying particulars pertaining to what documents
must be published in the Federal Register). Requirements for
these regulations are prescribed at 1 CFR, Parts 21.40 & 21.41:
Sec. 21.40 General requirements: Authority citations.
Each section in a document subject to codification must
include, or be covered by, a complete citation of the
authority under which the section is issued, including --
(a) General or specific authority delegated by statute; and
(b) Executive delegations, if any, necessary to link the
statutory authority to the issuing agency.
Sec. 21.41 Agency responsibility.
(a) Each issuing agency is responsible for the accuracy and
integrity of the citations of authority in the documents it
issues.
(b) Each issuing agency shall formally amend the citations
of authority in its codified material to reflect any changes
therein.
There are literally thousands of pages of regulations, so
Congress, via 44 U.S.C. 1510, authorized publication of certain
finding aids. The most useful where the instant matter is
concerned is the Parallel Table of Authorities and Rules,
published in the Index volume to the Code of Federal Regulations.
This table is organized sequentially by United States Code title
and statute number in the left column, with general application
regulations for each statute listed in the right column.
Requirements for this table are at 1 CFR, Part 8.5(a):
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Sec. 8.5 Ancillaries.
The Code shall provide, among others, the following-
described finding aids:
(a) Parallel tables of statutory authorities and rules. In
the Code of Federal Regulations Index or at such other place
as the Director of the Federal Register considers
appropriate, numerical lists of all sections of the current
edition of the United States Code (except section 301 of
title 5) which are cited by issuing agencies as rule-making
authority for currently effective regulations in the Code of
Federal Regulations. The lists shall be arranged in the
order of the titles and sections of the United States Code
with parallel citations to the pertinent titles and parts of
the Code of Federal Regulations.
If any given statute in the United States Code is not listed
in the Parallel Table of Authorities and Rules, the authority of
the statute is limited to (1) United States government agencies
and operations and government agencies and operations of United
States political subdivisions (5 U.S.C. 301; exception at 44
U.S.C. 1505(a)), (2) United States territories, and/or (3) United
States maritime jurisdiction. Unless a general application
legislative regulation is published in the Federal Register, and
identified as such in the Parallel Table of Authorities and
Rules, authority of the statute does not reach the Union of
several States party to the Constitution of the United States and
the American people at large.
____________________
9 For general purposes, "IRC" is being used in text to refer
to the Internal Revenue Code of 1954, as amended in 1986 and
since, where in special use relating to the Parallel Table
of Authorities and Rules, "Title 26" or "26 U.S.C." is being
used. See IRC 7806 for verification that Title 26 has never
been enacted as positive law, so the title remains prima
facie evidence of law. The Internal Revenue Code thus
remains Vol. 68A of the Statutes at Large, as amended in
1986 and since.
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By consulting the Parallel Table of Authorities and Rules,
it is found that 26 U.S.C. 7621 is not listed./9 This is the
statute authorizing the President to establish revenue districts,
which was examined earlier. Since there is no listing in the
Parallel Table of Authorities and Rules for the statute,
authority of 26 U.S.C. 7621 does not reach or affect the Union of
several States party to the Constitution and the population at
large.
This section has already been examined: Congress authorized
the President to re-delegate authority for certain
responsibilities via 3 U.S.C. 301. The President then exercised 3
U.S.C. 301 statutory authority by re-delegating authority
relating to United States customs laws, authority to establish
and/or change revenue districts, administer the anti-smuggling
act, etc., to the Secretary of the Treasury via E.O. No. 10289,
first effected in 1951 and revised several times since, then the
Secretary, via T.D.O. 150-42 (1956), re-delegated authority
pertaining to administration of United States internal revenue
laws to the Commissioner of Internal Revenue, with authority
delegated from the President to the Secretary and subsequently to
the Commissioner all limited to United States off-shore
territorial and maritime jurisdiction, exclusive of the Union of
several States party to the Constitution of the United States.
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Although 26 U.S.C. 7621 is not listed in the Parallel Table
of Authorities and Rules, and therefore does not have a general
application or legislative regulation published in the Federal
Register, E.O. No. 10289 is cited at 26 CFR, Part 301.7621-1 as
the Secretary's authority to establish and change revenue
districts. In other words, IRC 7621 does not apply to and has no
affect on the Union of several States and the American people at
large -- it extends to and affects only United States off-shore
territorial and maritime jurisdiction.
It will also be found that 26 U.S.C. 7801, 7802 & 7803 are
not listed in the Parallel Table of Authorities and Rules. Which
is to say, the Secretary of the Treasury, the Commissioner of
Internal Revenue and his various assistants, and the Treasury
Department do not have Internal Revenue Code administrative and
enforcement authority in the Union of several States. Their
authority, respectively, is limited to United States territorial
and maritime jurisdiction, and where applicable, to United States
government operations.
As already demonstrated, Subtitle A & C taxes are mandatory
only for "employees", as defined at IRC 3401(c) -- officers and
employees of the United States, Federal states under Congress'
Article IV, Section 3.2 legislative jurisdiction such as the
District of Columbia, Puerto Rico, the Virgin Islands, Guam,
American Samoa, etc., their respective political subdivisions,
and officers of United States corporations which operate as
instrumentalities of the United States -- the United States
Postal Service, Federal Land Bank, and other such entities. The
qualification is then narrowed even further: Only citizens and
residents of the United States providing service relating to an
employer's United States trade or business -- trade or business
is defined as performance of the functions of a public office
(IRC 7701(a)(26)).
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The next question is, "Who is ultimately liable for these
taxes?" Which is to say, those identified at IRC 3401(c), and the
types of "income" identified in the section, are subject to the
tax via withholding at the source (IRC 3402), but they aren't
necessarily subject to direct personal liability or requirements
even for filing returns and the like. The alleged mandate for
filing "1040" tax returns is a sham and hoax. This is verified at
26 CFR, Part 31.6001-1(d):
(d) Records of employees. While not mandatory (except in
the case of claims), it is advisable for each employee to
keep permanent, accurate records showing the name and
address of each employer for whom he performs services as an
employee, the dates of beginning and termination of such
services, the information with respect to himself which is
required by the regulations in this subpart to be kept by
employers, and the statements furnished in accordance with
the provisions of Sec. 31.6051-1.
[emphasis added]
Under normal circumstances, an "employee" will file for
overcollection (excess withholding) refunds directly through the
"employer". This is clarified at 26 CFR, Part 601.401(c):
(2) Overcollections from employees -- (i) Employee tax. If
an employer collects from an employee more than the correct
amount of employee tax under the Federal Insurance
Contributions Act or the Railroad Retirement Act, and the
error is ascertained within the applicable period of
limitation on credit or refund, the employer is required
either to repay the amount to the employee, or to reimburse
the employee by applying the amount of the overcollection
against employee tax which otherwise would be collected from
the employee after the error is ascertained. If the
overcollection is repaid to the employee, the employer is
required to obtain and keep the employee's written receipt
showing the date and amount of the repayment...
(ii) Income tax withholding. If, in any return period in a
calendar year, an employer withholds more than the correct
amount of income tax, and pays over to the Internal Revenue
Service the amount withheld, the employer may repay or
reimburse the employee in the excess amount in any
subsequent return period in the same calendar year. If the
amount is so repaid, the employer is required to obtain and
keep the employee's written receipt showing the date and
amount of the repayment.
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(3) Employer's claims for credit or refund of overpayments
-- (i) Employee tax. If an employer repays or reimburses an
employee for an overcollection of employee tax, as described
in subparagraph (2)(i) of this paragraph, the employer may
claim credit on a return in accordance with the instructions
applicable to the return. In lieu of claiming credit the
employer may claim refund by filing Form 843, but the
employer may not thereafter claim credit for the same
overpayment.
(ii) Income tax withholding. If an employer repays or
reimburses an employee for an excess amount withheld as
income tax, as described in subparagraph (2)(ii) of this
paragraph, the employer may claim credit on a return for a
return period in the calendar year in which the excess
amount was withheld. The employer is not otherwise permitted
to claim credit or refund for any overpayment of income tax
that the employer deducted or withheld from an employee.
The "employee" is required to file for refunds from the
Treasury Department only under special conditions. Some of those
conditions are specified in regulations at 26 CFR, Part
601.401(d):
(d) Special refunds of employee social security tax. (1) An
employee who receives wages from more than one employer
during a calendar year may, under certain conditions,
receive a "special refund" of the amount of employee social
security tax (i.e., employee tax under the Federal Insurance
Contributions Act) deducted and withheld from wages that
exceed the following amounts ... An employee who is entitled
to a special refund of employee tax with respect to wages
received during a calendar year, and who is required to file
an income tax return for such calendar year ... may obtain
the benefits of such special refund only by claiming credit
for such special refund on such income tax return in the
same manner as if such special refund were an amount
deducted and withheld as income tax at source on wages.
(2) The amount of the special refund allowed as a credit
shall be considered as an amount deducted and withheld as
income tax at the source on wages. If the amount of such
special refund when added to amounts deducted and withheld
as income tax under chapter 24 exceeds the income tax
imposed by chapter 1, the amount of the excess constitutes
an overpayment of income tax, and interest on such
overpayment is allowed to be extent provided under section
6611 of the Code upon an overpayment of income tax resulting
from a credit for income tax withheld at source on wages.
(3) If an employee entitled to a special refund of employee
social security tax is not required to file an income tax
return for the year in which such special refund may be
claimed as a credit, the employee may file a claim for
refund of the excess social security tax on Form 843. Claims
must be filed with the district director of internal revenue
for the district in which the employee resides.
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(4) Employee taxes under the Federal Insurance Contributions
Act and the Railroad Retirement Tax Act includes a
percentage rate for hospital insurance. If in 1968 or any
calendar year thereafter employee taxes under both Acts are
deducted from an employee's wages and compensation
aggregating more than $7,800, the "special refund"
provisions may apply to the portion of the tax that is
deducted for hospital insurance. The employee may take
credit on Form 1040 for the amount allowable, in accordance
with the instructions applicable to that form.
[emphasis added]
Those eligible for special refunds of employment taxes are
listed at 26 CFR, Part 31.6413(c)-1. Only in this framework, or
in the event of illegal or erroneous assessment and collection
initiatives (26 CFR, Part 301.6404-1(a)), would an "employee"
file for returns directly from the Internal Revenue Service. The
"1040" form, used to secure special refunds, is voluntary in that
an employee may elect not to file for a refund, and mandatory
only to secure a benefit, the benefit being refund of overpayment
of employee employment taxes. Thus, Internal Revenue Service
"1040" assessment used as the basis of administrative and
judicial initiatives is clearly fraudulent.
The inquiry then returns to liability: Who is liable for
Subtitle A & C taxes? The answer is, the employee designated as
withholding agent for the Government agency or United States
corporation operating as an instrumentality of the United States.
The matter is penetrated via 26 CFR, Parts 31.3403-1 & 31.3404-1:
Sec. 31.3403-1 Liability for tax.
Every employer required to deduct and withhold the tax under
section 3402 from the wages of an employee is liable for the
payment of such tax whether or not it is collected from the
employee by the employer. If, for example, the employer
deducts less than the correct amount of tax, or if he fails
to deduct any part of the tax, he is nevertheless liable for
the correct amount of the tax. See, however, Sec.
31.3402(d)-1. The employer is relieved of liability to any
other person for the amount of any such tax withheld and
paid to the district director or deposition with a duly
designated depository of the United States.
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Sec. 31.3404-1 Return and payment by governmental employer.
If the United States, or a State, Territory, Puerto Rico, or
a political subdivision thereof, or the District of
Columbia, or any agency or instrumentality of any one or
more of the foregoing, is an employer required to deduct and
withhold tax under Chapter 24, the return of the amount
deducted and withheld as such tax may be made by the officer
or employee having control of the payment of the wages or
other officer or employee appropriately designated for that
purposes. (For provisions relating to the execution and
filing of returns, see Subpart G of the regulations in this
part).
Liability of the employer is further demonstrated at 26 CFR,
Part 31.3402(d)-1:
Sec. 31.3402(d)-1 Failure to withhold.
If the employer in violation of the provisions of section
3402 fails to deduct and withhold the tax, and thereafter
the income tax against which the tax under section 3402 may
be credited is paid, the tax under section 3402 shall not be
collected from the employer. Such payment does not, however,
operate to relieve the employer from liability for penalties
or additions to the tax applicable in respect of such
failure to deduct and withhold. The employer will not be
relieved of his liability for payment of the tax required to
be withheld unless he can show that the tax against which
the tax under section 3402 may be credited has been paid.
See Sec. 31.3403-1, relating to liability for tax.
So far as liability for Subtitle A & C taxes is concerned,
IRC 1441, 1442, 1443, and 1461 stipulate that the "withholding
agent" is liable. Even if an "employee" were to fall for the
"1040" scheme by filing a return and paying whatever additional
sum is calculated as appropriate payment, the employer remains
liable for whatever penalties and interest might attend the tax.
In other words, an employee, other than the designated
withholding agent, is not liable directly to the Treasury
Department for reporting and making direct payments, nor is he
liable for interest and statutory penalties. These liabilities
all fall to the employer -- the Government employer -- by way of
the designated withholding agent. The withholding agent is also
an "employee".
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This matter is clarified at IRC 7343, to wit:
Sec. 7343. Definition of term "person."
The term "person" as used in this chapter includes an
officer or employee of a corporation, or a member or
employee of a partnership, who as such officer, employee, or
member is under a duty to perform the act in respect of
which the violation occurs.
This restrictive definition of "person" applies to Chapter
75 of the Internal Revenue Code, "Crimes, Other Offenses and
Forfeitures". It is inclusive of IRC 7201 - 7344, the chapter
covering all criminal offenses and forfeitures itemized in the
Internal Revenue Code. Where Subtitles A & C of the Code are
concerned, application of criminal laws and execution of
forfeitures are effective only against those who qualify as a
"person" within the scope of the restrictive definition at IRC
7343 the "withholding agent" identified at 26 CFR, Parts 31.3403-
1 & 31-3404-1, and made liable via 26 CFR, Parts 1.1441, 1.1442,
1.1443 & 1.1461.
The definition of "withholding agent" at 26 CFR, Part
1.1441-7 is specifically applicable to nonresident aliens,
foreign corporations, etc., but as seen above, the same general
liability occurs in the geographical United States and is
incumbent on those designated as withholding agents for all
purposes where withholding, filing returns, and paying tax is
concerned. This definition applies as the general definition of
"withholding agent", as specified at 26 CFR, Part 301.7701-16,
the statutory definition being at IRC 7701(a)(16):
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Sec. 1.1441-7 General provisions relating to withholding
agents.
(a) Withholding agent defined -- (1) In general. For
purposes of Chapter 3 of the Code, the term "withholding
agent" means any person who pays or causes to be paid an
item of income specified in Sec. 1.1441-2 to (or to the
agent of) a nonresident alien individual, a foreign
partnership, a nonresident alien or foreign fiduciary of a
trust or estate, or a foreign corporation, and who is
required to withhold tax under sections 1441, 1442, 1443, or
1451 from such item of income. Any person who meets the
definition of a withholding agent is required to file the
returns prescribed by Sec. 1.1461-1. For example, an
employer (as defined in Sec. 31.3401(d)-1 of this chapter),
to the extent the employer pays remuneration for services
performed by a nonresident alien individual in the United
States and such remuneration is excepted from the term
"wages" under Sec. 31.3401(a)(6)-(1)(c) or (e) of this
chapter, must file a return as required by Sec. 1.1461-
2(c)(1).
The mystery of how an "employee" is to file for refunds of
overpayments with the withholding agent, and the withholding
agent is to (1) repay the employee, then (2) recover the refunded
overpayment via the Internal Revenue Service, is resolved at 26
CFR, Part 1.1461-2. Where matters at hand are concerned, it isn't
necessary to detail the process, itemize forms, etc., but merely
note that Sec. 1.1461-2 is one of the few regulations pertaining
to the Internal Revenue Code which meets Paperwork Reduction Act
(44 U.S.C. 3501 et seq.), Federal Register Act (44 U.S.C. 1501 et
seq.), and Privacy Act (5 U.S.C. 552a) requirements, and is, in
fact, the controlling regulation for all regulations published in
Title 26 of the Code of Federal Regulations. Relevant portions of
26 CFR, Part 1.1461-2 are as follows:
(e) Penalties. For penalties and additions to the tax
attaching upon failure to comply with this section, see
sections 6651, 6656, 6676, and 7203.
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(f) Special items. The tax withheld in accordance with
paragraphs (b)(1), (c)(3), and (d)(1) of Sec. 1.1441-3 shall
be returned and paid in accordance with this section even
though the items involved may not constitute gross income in
whole or in part. For such purpose, a reference in this
section to an item or amount of income shall, where
appropriate, be deemed to refer also to the items specified
in such paragraphs or the amount thereof.
(g) Inconsistent regulations. All regulations inconsistent
with the provisions of this section shall be deemed to have
been modified accordingly.
(Approved by the Office of Management and Budget under
control number 1545-0795)
(Secs. 1441(c)(4) (80 Stat. 1553; 26 U.S.C. 1441(c)(4)),
3401(a)(6) (80 Stat. 1554; 26 U.S.C. 3401(a)(6)), 7805 (68A
Stat. 917; 26 U.S.C. 7805) of the Internal Revenue Code of
1954)
(T.D. 6500, 25 FR 12078, Nov. 26, 1960, as amended by T.D.
6922, 32 FR 8711, June 17, 1967; T.D. 7157, 36 FR 25228,
Dec. 30, 1971; T.D. 7977, 49 FR 36835, Sept. 20, 1984)
Where matters at hand are concerned, the lineage of this
historical line can be summarized and left at this point: The
"employee" subject to Subtitle A & C taxes is the appointed or
elected officer or agent of United States government, governments
of United States territories subject to Congress' Article IV,
Section 3.2 legislative jurisdiction, and officers of United
States corporations construed as instrumentalities of the United
States. The "employee" defined at IRC 3401(c) is approximately
the same as those identified as having "gross income" in the
Internal Revenue Act of Nov. 23, 1921 (pp. 237 & 238, Statutes at
Large for Nov. 23, 1921). However, the "withholding agent",
identified at IRC 3404 and 26 CFR, Part 31.3404, defined at IRC
7701(a)(16) and 26 CFR, Part 1.1441-7(a), is ultimately the
"person liable" for withholding, filing return reports, and
paying taxes prescribed in Subtitles A & C of the Code (see IRC
6012), and where appropriate, refunding overpayment of these
taxes to employees. The withholding agent is also the person
specified as being liable for criminal offenses and forfeitures
in the context of Chapter 75 of the Internal Revenue Code, per
IRC 7343.
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Internal Revenue Service is an Agency
of the Department of the Treasury, Puerto Rico
The second line of historical evolution pertains to identity
of the Internal Revenue Service as an agency of the Department of
the Treasury, Puerto Rico. The transition link is T.O. 150-29 of
1953, when the Secretary of the Treasury changed the name of the
Bureau of Internal Revenue to Internal Revenue Service.
The office of the Commissioner of Internal Revenue was
created in the Treasury Department by the Internal Revenue Act of
July 1, 1862. However, Congress did not create a Bureau of
Internal Revenue at that time or any time since (see report in
the Internal Revenue Manual 1100 at 1111.2; 36 F.R. 849-890, 36
F.R. 11046, 37 F.R. 489-490, particularly 36 F.R. 850). The
office of the Commissioner was effectively abolished with adopted
of the Revised Statutes of 1873.
Two entities known as the Bureau of Internal Revenue were
created in the early Twentieth Century, one by the provisional
government for the Philippines, in conjunction with Philippines
Trust #2 (internal revenue), the other by the provisional
government for Puerto Rico, in conjunction with Puerto Rico Trust
#62 (Internal Revenue) (both trusts still listed as under
management by the Secretary of the Treasury, 31 U.S.C. 1321).
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From approximately 1904 through 1938, BIR Philippines and
BIR Puerto Rico were responsible for administration and
enforcement of the China Trade Act, repealed in 1938, the Act
relating to trade in opium, cocaine and citric wines. Both
entities continued to administer treaty provisions relating to
narcotics and other controlled substances classified as drugs,
distilled spirits, etc., which replaced provisions of the China
Trade Act. The Philippines became an independent commonwealth in
1946, leaving BIR Puerto Rico as the only such agency directly
connected with the United States. The name of the Bureau of
Internal Revenue, Puerto Rico, was changed to Internal Revenue
Service via T.O. 150-29 in 1953.
Repeal of Eighteenth Amendment
Moved Federal Tax Administration Off Shore
The third historical line relates to the reasonably short
term of prohibition in the United States, 1920-1933. Ratification
of the Eighteenth Amendment in 1919 granted concurrent
jurisdiction to the United States and the Union of several States
party to the Constitution to enforce laws relating to
intoxicating liquors:
Amendment XVIII [1919]
Section 1. After one year from the ratification of this
article the manufacture, sale, or transportation of
intoxicating liquors within, the importation thereof into,
or the exportation thereof from the United States and all
territory subject to the jurisdiction thereof for beverage
purposes is hereby prohibited.
Section 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate
legislation.
The Eighteenth Amendment specifically provided for
concurrent State and Federal jurisdiction so far as enforcement
of Section 1 is concerned. However, the Twenty-First Amendment,
ratified in December 1933, eliminated the concurrent jurisdiction
provision so effectively prohibited Federal enforcement of laws
enacted by the several States:
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Amendment XXI [1933]
Section 1. The eighteenth article of amendment to the
Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any
State, Territory, or possession of the United States for
delivery or use therein of intoxicating liquors, in
violation of the laws thereof, is hereby prohibited.
At the time the Twenty-First Amendment was ratified, United
States enforcement was under 1926 legislation by way of the
Federal Alcohol Control Administration, established by Executive
Order 6474 of Dec. 4, 1933. The 1926 legislation was superseded
by the Federal Alcohol Administration Act of Aug. 29, 1935 (49
Stat. 977), and the Federal Alcohol Administration was to replace
the Federal Alcohol Control Administration. To a certain extent
this was carried out as a director for the Federal Alcohol
Administration was appointed, but the agency itself never really
got off the ground. In December 1935, the United States Supreme
Court, in United States v. Constantine, 296 U.S. 233 (1935),
ruled that repeal of the Eighteenth Amendment eliminated
concurrent Federal jurisdiction relating to intoxicating
beverages in the several States party to the Constitution -- each
State was free to adopt and enforce its own liquor laws without
Federal interference. The Constantine decision effectively
restored the Separation of Powers Doctrine articulated in Article
II of the Articles of Confederation/10 and the Tenth Amendment to
the Constitution of the United States:
____________________
10 The Articles of Confederation, along with the Declaration of
Independence, the Ordinance of 1787: The Northwest
Territorial Government, and the Constitution of the United
States, remains part of the "Organic Laws" of the United
States. See Volume One of the United States Code, 1994
edition, published by the United States Government Printing
Office.
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Article II [Articles of Confederation -- 1777]
Each State retains its sovereignty, freedom and
independence, and every power, jurisdiction and right, which
is not by this confederation expressly delegated to the
United States, in Congress assembled.
Amendment X [Constitution of the United States -- 1791]
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
In the body of the Constitution, Congress is authorized only
"To provide for the Punishment of counterfeiting the Securities
and current Coin of the United States," and at Article III,
Section 3.2, "... to declare the Punishment of Treason," but even
where these crimes allegedly occur in one of the several States
party to the Constitution, "The trial of all Crimes, except in
Cases of Impeachment, shall be by Jury; and such Trial shall be
held in the State where the said Crimes shall have been
committed..." There is no grant of Federal police powers or civil
enforcement authority in the several States; State judicial
authority is undisturbed within territorial borders of the State
save on Federal enclaves where jurisdiction is ceded to the
United States.
At Article I, Section 8.10, the Constitution grants Congress
authority to define and punish piracies and felonies committed on
the high seas, and offenses against the law of nations (the "Law
of Nation" described in 1787 is not the present "private
international law" accommodated by courts of the United States,
but is basically common law recognized by Christian nations at
the time), and to regulate civil government and the military
(Article I, Section 8.14).
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At Article I, Section 8.15, Congress is empowered, "To
provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrection and repel Invasions," but so far as
application to the several States party to the Constitution is
concerned, this section must be read in conjunction with Article
IV, Section 4:
Section 4. The United States shall guarantee to ever State
in this Union a Republican Form of Government, and shall
protect each of them against Invasion; and on Application
of the Legislature, or the Executive (when the Legislature
cannot be convened) against domestic Violence.
Several amendments ratified subsequent to the Civil War
extend congressional authority with respect to voting and civil
rights violations relating to "citizens of the United States".
For example, the Fourteenth Amendment (1868), provides in Section
1 that, "No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws."
Section 2 of the Amendment protects "citizen of the United
States" voting rights. Section 5 provides, "The Congress shall
have power to enforce, by appropriate legislation, the provisions
of this article."
The Fifteenth Amendment (1870), again with reference to
"citizens of the United States", provides that, "The right of
citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race,
color, or previous condition of servitude." Section 2 of the
Amendment stipulates, "The Congress shall have power to enforce
this article by appropriate legislation."
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The Nineteenth Amendment (1920), addresses voting rights for
women: "The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on
account of sex." The second portion of this Amendment, which
evidently is not formally divided into section, provides,
"Congress shall have power to enforce this article by appropriate
legislation."
The Twenty-Fourth Amendment (1967) also addresses voting
rights, and Congress is empowered to make appropriate laws:
Amendment XXIV [1964]
Section 1. The right of citizens of the United States to
vote in any primary or other election for President or Vice
President, for electors for President or Vice President, or
for Senator or Representative in Congress, shall not be
denied or abridged by the United States, or any State by
reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this
article by appropriate legislation.
Finally, the Twenty-Sixth Amendment addresses voting rights:
Amendment XXVI [1971]
Section 1. The right of citizens of the United States, who
are eighteen years of age or older, to vote shall not be
denied or abridged by the United States or by any State on
account of age.
Section 2. The Congress shall have power to enforce this
article by appropriate legislation.
Congress' constitutionally delegated authority so far as
what might be considered crimes within the several States party
to the Constitution are concerned is thus limited by that which
is specifically articulated above: (1) Congress may prescribe
punishment for counterfeiting securities and current coin of the
United States, (2) Congress may prescribe punishment for treason,
(3) Congress may enforce the civil rights (privileges, immunities
and due process assurances) of "citizens of the United States",
and (4) Congress may prosecute violations of "citizen of the
United States" voting rights. However, Article I, Section 8.15
does not grant Congress authority to exercise civil police powers
in the several States party to the Constitution:
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[The Congress shall have Power] To provide for calling forth
the Militia to execute the Laws of the Union, suppress
Insurrection and repel Invasion.
Theoretically, the United States could enforce "income tax"
laws under authority of the Sixteenth Amendment:
Amendment XVI [1913]
The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportionment
among the several States, and without regard to any census
or enumeration.
However, as already demonstrated, the original income tax
levied approximately simultaneous with promulgation of the
Sixteenth Amendment was thoroughly battered from 1916 through
1920 (see notes for Congressional Record -- House, for March 23,
1943, supra), so by way of the Internal Revenue Act of Nov. 23,
1921, Federal income and excise taxes were shifted from Congress'
Article I delegated authority relating to the Union of several
States to Congress' Article IV, Section 3.2 legislative authority
in United States territorial jurisdiction. The normal tax and
surtax prescribed in Article II of the 1921 Act, per definition
in the Congressional Record supra, were also classified as excise
rather than direct taxes as the wage or salary derived from
"United States trade or business" (performance of the functions
of public office) constitutes the measure, not the subject of the
tax.
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With the Constantine decision following repeal of the
Eighteenth Amendment supra, Federal revenue enforcement authority
with respect to the several States party to the Constitution was
effectively at an end. By way of Reorganization Plan No. III of
1940, the Federal Alcohol Administration was abolished and
functions of the Administration were merged under authority of
the Bureau of Internal Revenue, Puerto Rico.
The solid link in IRS lineage is reflected in a note on page
794 of The United States Government Manual, 1995/96 edition:
Alcohol Control Administration, Federal
Established by EO 6474 of Dec. 4, 1933. Abolished Sept. 24,
1935, on induction into office of Administrator, Federal
Alcohol Administration, as provided in act of Aug. 29, 1935
(49 Stat. 977). Abolished by Reorg. Plan No. III of 1940,
effective June 30, 1940, and functions consolidated with
activities of Internal Revenue Service.
As previously noted, the Internal Revenue Service did not
exist until the name of Bureau of Internal Revenue was changed
via T.O. 150-29 (1953). Functions of the Federal Alcohol
Administration merged with those of the Bureau of Internal
Revenue pertained to the Federal Alcohol Administration Act,
which due to the Constantine decision in December 1935, was
construed as not enforceable in the several States party to the
Constitution due to repeal of the Eighteenth Amendment. In 1953,
the name of Bureau of Internal Revenue was changed to Internal
Revenue Service, then by way of Treasury Department Order No.
221, effective July 1, 1972, "functions, powers, and duties
arising under laws relating to alcohol, tobacco, firearms, and
explosives [were transferred] from the Internal Revenue
Service..," to the Bureau of Alcohol, Tobacco and Firearms./11
____________________
11 The United States Government Manual, 1995/96 edition, page
462.
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The fact that BATF still administers the Federal Alcohol
Administration Act, merged under administration of the Bureau of
Internal Revenue, Puerto Rico, via Reorganization Plan No. III of
1940, is verified at 27 CFR, Part 1.1:
Sec. 1.1 General
The regulations in this part relate to requirements
governing the issuance, amendment, denial, revocation,
suspension, automatic termination, and annulment of basic
permits and the duration of permits, except that the
provisions of part 200, Rules of Practice in Permit
Proceedings, of this chapter are hereby made applicable to
administrative proceedings with respect to the application
for, and to the suspension, revocation, or annulment of,
basic permits under the Federal Alcohol Administration Act.
[emphasis added]
The hard link between IRS, BATF and the Department of the
Treasury, Puerto Rico, is further verified by way of definitions
at 27 CFR, Part 250.11:
Revenue Agent. Any duly authorized Commonwealth Internal
Revenue Agent of the Department of the Treasury of Puerto
Rico.
Secretary. The Secretary of the Treasury of Puerto Rico.
Secretary or his delegate. The Secretary or any officer or
employee of the Department of the Treasury of Puerto Rico
duly authorized by the Secretary to perform the function
mentioned or described in this part.
Distinction between Treasury Department and Department of
the Treasury authority is at this point reasonably easy to
demonstrate. By definition of the Secretary's delegate at IRC
7701(a)(12), it is found that the Treasury Department is
responsible for administering Internal Revenue Code taxing
authority so far as the Continental United States is concerned:
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(12) Delegate.
(A) In general. The term "or his delegate" -- (i) when used
with reference to the Secretary of the Treasury, means any
officer, employee, or agency of the Treasury Department duly
authorized by the Secretary of the Treasury directly, or
indirectly by one or more redelegations of authority, to
perform the function mentioned or described in the context;
and (ii) when used with reference to any other official of
the United States, shall be similarly construed.
[emphasis added]
The Treasury Department also has specific Code authorization
at Section 7805:
Sec. 7805. Rules and regulations.
(a) Authorization.
Except where such authority is expressly given by this title
to any person other than an officer or employee of the
Treasury Department, the Secretary shall prescribe all
needful rules and regulations for the enforcement of this
title, including all rules and regulations as may be
necessary by reason of any alteration of law in relation to
internal revenue.
[emphasis added]
The arms-length relationship between the Department of the
Treasury and the Treasury of the United States is demonstrated at
2 U.S.C. 64-3:
Sec. 64-3. Reimbursement for Capitol Police salaries paid by
Senate for service of Federal Law Enforcement Training
Center
Notwithstanding any other provision of law, the Secretary of
the Senate is authorized to receive moneys from the
Department of the Treasury as reimbursements for salaries
paid by the United States Senate in connection with certain
officers and members of the United States Capitol Police
serving as instructors at the Federal Law Enforcement
Training Center. Moneys so received shall be deposited in
the Treasury of the United States as miscellaneous receipts.
[emphasis added]
It is convenient at this point, with the three historical
lines pertaining to United States internal revenue laws and
excise taxes merged, and clear distinction between the Department
of the Treasury, Puerto Rico and the Treasury of the United
States clarified, to view a graphic depiction of Department of
the Treasury organization. A Department of the Treasury
organization chart appears on page 458 of The United States
Government Manual, 1995/96 edition.
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This chart is organized with the Secretary of the Treasury
at the top with the Deputy Secretary immediately below. There is
then a short downward line from the Deputy Secretary to a
horizontal line which stretches from left to right most of the
way across the page. Immediately to the right of the vertical
line from the Deputy Secretary, the first down line below the
long horizontal line depicts authority of the Under Secretary for
Enforcement. This line of authority goes through the Assistant
Secretary (Enforcement), to four Department of the Treasury
components (Treasury Bureaus): the Bureau of Alcohol, Tobacco
and Firearms, U.S. Customs Service, U.S. Secret Service, and the
Federal Law Enforcement Training Center.
It is unnecessary in this context to document the lineage of
the U.S. Customs Service and U.S. Secret Service, but both of
these entities are also agencies of the Department of the
Treasury, Puerto Rico, they are not formally part of the United
States Government so far as United States Government operates
within the framework of Congress' constitutionally delegated
authorities pertaining to the several States party to the
Constitution. The original Bureau of Customs created by Congress
was abolished then re-established as the United States Customs
Service in the Department of the Treasury, Puerto Rico, in much
the fashion the Federal Alcohol Administration was abolished and
functions eventually taken over by BATF; the United States
Secret Service emerged from the Capitol Police -- authority has
never extended to the several States party to the Constitution.
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The Internal Revenue Service is not listed among the bureaus
vested with Department of the Treasury enforcement authority. IRS
has no enforcement authority in the several States party to the
Constitution or anywhere else when operating in the agency's own
capacity. This is verified by following the long horizontal line
near the top of the chart to the third down line to the right of
the Under Secretary for Enforcement. At the bottom of this line,
IRS is found depicted as a stand-alone bureau.
Obviously, some loop-hole is used to justify IRS
administrative and judicial initiatives. This is found at IRC
7327:
Sec. 7327. Customs laws applicable.
The provisions of law applicable to the remission or
mitigation by the Secretary of forfeitures under the customs
laws shall apply to forfeitures incurred or alleged to have
been incurred under the internal revenue laws.
The Parallel Table of Authorities and Rules lists two
regulations for IRC 7327 and other statutes in Part II of Chapter
75: 26 CFR, Part 403 & 27 CFR, Part 72. The 27 CFR, Part 72
regulation authorizes BATF to administer customs laws relating to
alcohol, tobacco, firearms, etc., where 26 CFR, Part 403
authorizes the Internal Revenue Service to administer customs
laws relating to narcotics and other drugs. The first part of the
regulation specifically pertains to seizures:
Sec. 403.1 Personal property seized by the Internal Revenue
Service.
Regulations in this part relate to personal property seized
by officers of the Internal Revenue Service as subject to
forfeiture as being involved, used, or intended to be used,
as the case may be in any violation of the internal revenue
laws other than Chapters 51 (distilled spirits), 52
(tobacco) and 53 (firearms), of the Internal Revenue Code of
1954 (IRC).
(Sec. 7325, 68A Stat. 870, as amended (26 U.S.C. 7325, (1),
(4)); sec. 7326, 72 Stat 1429, as amended (26 U.S.C.
7326(a))).
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The nature of law being enforced is disclosed at 26 CFR,
Part 403.35:
Sec. 403.35 Laws applicable.
Remission or mitigation of forfeitures shall be governed by
the customs laws applicable to remission or mitigation of
penalties as contained in 19 U.S.C. 1613 and 19 U.S.C. 1618.
(Sec. 613, 46 Stat. 756, as amended, sec. 618, 46 Stat. 757,
as amended, sec. 7327, 68A Stat. 871; (19 U.S.C. 1613,
1618, 26 U.S.C. 7327))
When operating in this capacity, Internal Revenue Service
agents are effectively Customs officers operating under United
States maritime authority. The link at this juncture moves to
Part I of Chapter 75, at IRC 7302: "Property used in violation
of internal revenue laws." Where there is judicial process to
execute seizure, authority is at IRC 7323:
Sec. 7323. Judicial action to enforce forfeiture.
(a) Nature and venue.
The proceedings to enforce such forfeitures shall be in the
nature of a proceeding in rem in the United States District
Court for the district where such seizure is made.
[emphasis added]
____________________
12 The Supplemental Rules for Certain Admiralty and Maritime
Claims treat the "in rem" action and generally disclose the
nature of Internal Revenue Service initiatives. For example,
Rule A., "Scope of Rules", stipulates, "These Supplemental
Rules apply to the procedure in admiralty and maritime
claims within the meaning of Rule 9(h) with respect to the
following remedies: (1) Maritime attachment and
garnishment; (2) Actions in rem; (3) Possessory, petitory,
and partition actions; (4) Actions for exoneration from or
limitation of liability. These rules also apply to the
procedure in statutory condemnation proceedings analogous to
maritime actions in rem, whether within the admiralty and
maritime jurisdiction or not ... The general Rules of Civil
Procedure for the United States District Courts are also
applicable to the foregoing proceedings except to the extent
that they are inconsistent with these Supplemental Rules."
Rule C in particular governs IRS lien and in rem actions.
These uniquely maritime remedies, which extend to the
geographical United States under Congress' Article IV,
Section 3.2 legislative jurisdiction, cannot legitimately be
effected in the several States party to the Constitution.
United States admiralty and maritime authority is an
entirely different class of case from the "arising under"
clause at Article III, Section 2.1 of the Constitution (law
and equity). The original judiciary act of 1789 carried out
constitutional intent by limiting this admiralty and
maritime jurisdiction to matters pertaining to the high seas
and international affairs, providing an exit for the de jure
American people by way of the "saving to suitors" clause --
saving the right to demand a common law remedy where the
common law is competent to provide a remedy. United States
admiralty and maritime authority is exclusive of the several
States party to the Constitution of the United States. While
statutory courts of the several States now operate under
admiralty/civil law rules, constitutions of the several
States authorize only law and equity, or chancery. This de
facto operation of State courts, and comity between State
and Federal courts, are destructive elements of Cooperative
Federalism which effect approximately the same kind of
justice administered by way of vice-admiralty courts under
King George III. These courts were among the chief causes of
the American Revolution. Under the supplemental admiralty
and maritime rules, judicial officers in United States
District Courts effectively shield inland piracy and
sedition, being joined to the crimes by non-disclosure and
accommodation.
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These links demonstrate admiralty authority, which is
legitimate only in United States maritime and off-shore
territorial jurisdiction./12 Internal Revenue Service
initiatives, whether administrative or judicial, are premised on
customs laws and the presumption that whomever is the target of
these initiatives, or someone associated with them, (1) is
involved in drug trafficking, and (2) there has been a drug
trafficking-related offense. Seizure authority under IRC 7302 is
premised on these presumptions, as are Sections 7325(1) & (4),
and the "in rem" action authorized at Section 7323 is admiralty.
There is no corresponding provision for causes which fall within
the framework of the "arising under" clause at Article III,
Section 2.1 and the Fourth, Fifth, Sixth, and Seventh Amendments
to the Constitution of the United States -- the authority cannot
be spread inland to the Union of several States party to the
Constitution and the American people at large.
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This context also distinguishes between jurisdiction in
Chapters 75 & 76: IRC 7323 vests "in rem" (admiralty) authority
in the Article IV "United States District Court", where IRC 7402
vests authority in the Article III "district courts of the United
States":
Sec. 7402. Jurisdiction of district courts.
(a) To issue orders, processes, and judgments.
The district courts of the United States at the instance of
the United States shall have such jurisdiction to make and
issue in civil actions, writs and orders of injunction, and
of ne exeat republica, orders appointing receivers, and such
other orders and processes, and to render such judgments and
decrees as may be necessary or appropriate for the
enforcement of the internal revenue laws ....
[emphasis added]
It happens that all criminal penalties listed in the
Internal Revenue Code are in Chapter 75 (IRC 7201-7275), so the
entire scheme of Internal Revenue Code criminal enforcement is
applicable only in United States maritime and territorial
jurisdiction -- the "United States District Court", as opposed to
the "district court of the United States", is (1) a legislative
court, (2) with authority only in United States territorial and
maritime jurisdiction. It has no Article III capacity, and
regardless of forum, whether in the territorial United State
subject to Congress' Article IV, Section 3.2 legislative
jurisdiction or United States maritime jurisdiction, it operates
under admiralty rules. So far as the sovereign Citizen of the
several States party to the Constitution is concerned, the United
States District Court is incompetent at law.
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The nature and jurisdiction of the United States District
Court v. the district court of the United States will be treated
at length in the section addressing jurisdiction and venue
jurisdiction.
In the Moore-Gunwall case, the pivotal charge is interfering
with administration of internal revenue laws, IRC 7212(a). By
examining delegated authority of the Assistant Attorney General
over the Tax Division at 28 CFR, Part 0.70, it is found that this
statute may not be prosecuted by the Tax Division, which has
authority relating to Subtitle A & C "excise taxes" -- Section
7212 relates only to Subtitle E taxes and customs laws:
Subpart N Tax Division
Sec. 0.70 General Functions.
The following functions are assigned to and shall be
conducted, handled, or supervised by, the Assistant Attorney
General, Tax Division:
(a) Prosecution and defense in all courts, other than the
Tax Court, of civil suits, and the handling of other
matters, arising under the internal revenue laws, and
litigation resulting from the taxing provisions of other
Federal statutes (except civil forfeiture and civil penalty
matters arising under laws relating to liquor, narcotics,
gambling, and firearms assigned to the Criminal Divisions by
Sec. 0.55(d)).
(b) Criminal proceedings arising under the internal revenue
laws, except the following: Proceedings pertaining to
misconduct of Internal Revenue Service personnel, to taxes
on liquor, narcotics, firearms, coin-operated gambling and
amusement machines, and to wagering, forcible rescue of
seized property (26 U.S.C. 7212(b)), corrupt or forcible
interference with an officer or employee acting under the
Internal Revenue laws (26 U.S.C. 7212(a)), unauthorized
disclosure of information (26 U.S.C. 7213), and
counterfeiting, mutilation, removal, or reuse of stamps (26
U.S.C. 7213).
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(c)(1) Enforcement of tax liens, and mandamus, injunctions,
and other special actions or general matters arising in
connection with internal revenue matters.
(2) Defense of actions arising under section 2410 of title
28 of the U.S. Code whenever the United States is named as a
party to an action as the result of the existence of a
Federal tax lien, including the defense of other actions
arising under section 2410, if any, involving the same
property whenever a tax-lien action is pending under that
section.
(d) Appellate proceedings in connection with civil and
criminal cases enumerated in paragraphs (a) through (c) of
this section and in Sec. 0.71, including petitions to review
decisions of the Tax Court of the United States.
[emphasis added]
The Criminal Division of the Department of Justice is
responsible for prosecution of IRC 7212 by default, but the
Criminal Division has authority only for enforcement of customs
laws, gambling laws, and Subtitle E provisions under
administration of the Bureau of Alcohol, Tobacco and Firearms.
This is verified at 28 U.S.C. 0.55:
(c) All criminal and civil litigation under the Controlled
Substance Act, 84 Stat. 1242, and the Controlled Substances
Import and Export Act, 84 Stat. 1285 (titles II and III of
the Comprehensive Drug Abuse Prevention and Control Act of
1970).
(d) Civil and criminal forfeiture or civil penalty actions
(including petitions for remission or mitigation of
forfeitures and civil penalties, offers in compromise, and
related proceedings) under ... the Contraband Transportation
Act ... the customs law ... the Export Control Act of 1949,
the Federal Alcohol Administration Act ... laws relating to
cigarettes, liquor, narcotics and dangerous drugs, other
controlled substances, gambling ... and firearms...
(e) Subject to the provisions of subpart Y of this part,
consideration, acceptance, or rejection of offers in
compromise of criminal and tax liability under the laws
relating to liquor, narcotics and dangerous drugs, gambling,
and firearms ....
(h) Enforcement of the Act of January 2, 1951, 64 Stat.
1134, as amended by the Gambling Devices Act of 1962, 76
Stat. 1075, 15 U.S.C. 1171 et seq., including registration
thereunder. (see also 28 CFR 3.2)
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The link goes from the Department of Justice Criminal
Division to Coast Guard maritime jurisdiction at 33 CFR, Part
1.07, with crimes listed in the Part 1.07 Appendix. The Coast
Guard, as well as any other component of the Federal Law
Enforcement Community, may enforce customs laws when such
delegation is effected by the Secretary.
So far as Internal Revenue Service administering Subtitle A
& C taxes, the Secretary is authorized to issue such delegation
only in off-shore United States territories. This is confirmed at
IRC 7701(B), the definition of "Delegate" cited supra:
(B) Performance of certain functions in Guam or American
Samoa. The term "delegate," in relation to the performance
of functions in Guam or American Samoa with respect to the
taxes imposed by chapters 1, 2, and 21, also includes any
officer or employee of any other department or agency of the
United States, or of any possession thereof, duly authorized
by the Secretary (directly, or indirectly by one or more
redelegations of authority) to perform such functions.
[emphasis added]
Reference to chapters 1, 2, and 21 are to the Internal
Revenue Code of 1939; these taxes are currently in Subtitles A &
C of the Internal Revenue Code of 1954, as amended in 1986 and
since.
The mystery of Internal Revenue Code taxing authority and
Internal Revenue Service character and authority is thus
resolved: No taxing statute in the Internal Revenue Code of
1954, as amended in 1986 and since, reaches the several States
party to the Constitution and the American people at large. The
Internal Revenue Service and the Bureau of Alcohol, Tobacco and
Firearms are in the lineage of the Bureau of Internal Revenue,
Puerto Rico. Both entities still arise from, or work in
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conjunction with, Puerto Rico Trust #62 (Internal Revenue). By
way of the Internal Revenue Act of November 23, 1921, Congress
effectively eliminated excise and other taxes applicable to the
several States party to the Constitution as the entire Federal
tax system was moved under Congress' Article IV, Section 3.2
plenary power in the geographical United States. Subsequent to
United States v. Constantine, 296 U.S. 233 (1935), Federal civil
enforcement agencies ceased having authority to enforce State
laws relating to intoxicating beverages, then via Reorganization
Plan No. III of 1940, the Federal Alcohol Administration was
abolished and functions relating to the Federal Alcohol
Administration were consolidated with Bureau of Internal Revenue
authority relating to customs laws. In 1953, via T.O. 150-29, the
name of the Bureau of Internal Revenue was changed to Internal
Revenue Service, then in 1972, via T.D.O. 221, responsibility for
administration of the Federal Alcohol Administration Act and
related Subtitle E matters was vested in the Bureau of Alcohol,
Tobacco and Firearms.
The employer, not the employee, is responsible for
withholding, reporting and paying tax prescribed in Subtitles A &
C of the Internal Revenue Code. These taxes are mandatory only
for officers and employees of the United States and United States
political subdivisions under Congress' Article IV, Section 3.2
legislative jurisdiction, and officers of corporations construed
as instrumentalities of the United States.
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Criminal and forfeiture statutes in Chapter 75 of the
Internal Revenue Code are applicable only to designated
withholding agents and officers of entities responsible for taxes
prescribed in other Subtitles in the Internal Revenue Code and
those subject to United States customs laws. If and when an
employee seeks to secure refunds of income and employment taxes,
he will normally do so from the employer; the 1040 return form,
which is at all times voluntary, is used to secure special
refunds for overpayment of employee tax when an employee has been
employed by two or more employers in trade or business
effectively connected with the United States -- United States
trade or business is performance of functions of public office.
Seizure actions and criminal prosecution prescribed in
Chapter 75 of the Internal Revenue Code are via the United States
District Court, said court being an Article IV legislative-
territorial court of the United States which at all times
operates under admiralty rules, whether the matter pertains to
United States special territorial or maritime jurisdiction. This
authority is exclusive of the several States party to the
Constitution and the American people at large. Where a legitimate
civil matter under provisions of the Internal Revenue Code might
arise within United States jurisdiction in the Continental United
States, the Article III "district court of the United States" has
jurisdiction (IRC 7402). So far as Federal authority in the
several States party to the Constitution is concerned, offenses
allegedly committed under United States internal revenue laws
must be tried in courts of the several States, per Article III,
Section 2.3 of the Constitution, as the Constitution and its
various amendments do not delegate authority for the United
States to assume territorial jurisdiction and judicial authority
in the several States over categories of crimes listed in Chapter
75 of the Internal Revenue Code.
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II. Internal Revenue Code Deficiencies;
IRS Statutory & Regulatory Frauds
All Internal Revenue Code administrative and judicial
provisions are in subtitle F of the Code. Title 26 of the United
States Code has not been enacted as positive law. Subtitle F of
the Code does not become effective until Title 26 is enacted as
positive law. Therefore, all actions premised on subtitle F
statutes are null and void for want of lawful authority.
The statutory stipulation that subtitle F will not become
law until Title 26 of the United States Code is enacted as
positive law is at 26 U.S.C. 7851(a)(6):
(6) Subtitle F.
(A) General rule. The provisions of subtitle F shall take
effect on the day after the date of enactment of this title
and shall be applicable with respect to any tax imposed by
this title.
Verification that Title 26 of the United States Code has not
been enacted as positive law is at 26 U.S.C. 7806:
Sec. 7806. Construction of title.
(a) Cross references.
The cross references in this title to other portions of the
title, or other provisions of law, where the word "see" is
used, are made only for convenience, and shall be given no
legal effect.
(b) Arrangement and classification.
No inference, implication, or presumption of legislative
construction shall be drawn or made by reason of the
location or grouping of any particular section or provision
or portion of this title, nor shall any table of contents,
table of cross references, or similar outline, analysis, or
descriptive matter relating to the contents of this title be
given any legal effect. The preceding sentence also applies
to the sidenotes and ancillary tables contained in the
various prints of this Act before its enactment into law.
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Authority to bring suit for collection of internal revenue
taxes under 28 U.S.C. 1396 also remains in the Internal Revenue
Code of 1939, or at least did until repeal of IRC (1939) Section
3744. This is verified by the Senate Revision Note found in the
1996 edition of Title 28, United States Code, West Publishing
Co., at page 847 (paperback edition):
Senate Revision Amendment
While section 3744 of Title 26, U.S.C., Internal Revenue
Code [1939], is one of the sources of this section, it was
eliminated from the schedule of repeals by Senate amendment.
Therefore, it remains in Title 26 [IRC 1939]. See 80th
Congress Senate Report No. 1559.
Said section 3744 was subsequently repealed by Act May 24,
1949, c. 139, Sec. 142, 63 Stat. 110.
Therefore, initiatives premised on alleged subtitle F
authority are patently fraudulent as being under color of law.
If subtitle F was effective, assessment authority of the
Secretary is at IRC 6201, with such authority extending only to
filed returns or lists and taxes paid or payable by stamp. The
section grants no authority for the Secretary to unilaterally
assess Subtitle A & C taxes, but extends only to correction of
filed returns:
Sec. 6201. Assessment authority.
(a) Authority of Secretary.
The Secretary is authorized and required to make the
inquiries, determinations, and assessments of all taxes
(including interest, additional amounts, additions to the
tax, and assessable penalties) imposed by this title, or
accruing under any former internal revenue law, which have
not been duly paid by stamp at the time and in the manner
provided by law. Such authority shall extend to and include
the following:
(1) Taxes shown on return. The Secretary shall access all
taxes determined by the taxpayer or by the Secretary as to
which returns or lists are made under this title.
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(2) Unpaid taxes payable by stamp.
(A) Omitted stamps. Whenever any article upon which a tax is
required to be paid by means of a stamp is sold or removed
for sale or use by the manufacturer thereof or whenever any
transaction or act upon which a tax is required to be paid
by means of a stamp occurs without the use of the proper
stamp, it shall be the duty of the Secretary, upon such
information as he can obtain, to estimate the amount of tax
which has been omitted to be paid and to make assessment
therefore upon the person or persons the Secretary
determines to be liable for such tax.
(B) Check or money order not duly paid. In any case in which
a check or money order received under authority of 6311 as
payment for stamps is not duly paid, the unpaid amount may
be immediately assessed as if it were a tax imposed by this
title, due at the time of such receipt, from the person who
tendered such check or money order.
(3) Erroneous income tax prepayment credits. If on any
return or claim for refund of income taxes under subtitle A
there is an overstatement of the credit for income tax
withheld at the source, or of the amount paid as estimated
income tax, the amount so overstated which is allowed
against the tax shown on the return of which is allowed as a
credit or refund may be assessed by the Secretary in the
same manner as in the case of a mathematical or clerical
error appearing upon the return, except that the provisions
of section 6213(b)(2) (relating to abatement of mathematical
or clerical error assessments) shall not apply with regard
to any assessment under this paragraph.
(b) Amount not to be assessed.
(1) Estimated income tax. No unpaid amount of estimated
income tax required to be paid under section 6654 or 6655
shall be assessed.
(2) Federal unemployment tax. No unpaid amount of Federal
unemployment tax for any calendar quarter or other period of
a calendar year, computed as provided in section 6157, shall
be assessed.
(c) Compensation of child.
Any income tax under chapter 1 assessed against a child, to
the extent attributable to amounts includible in the gross
income of the child, and not of the parent, solely by reason
of section 73(a), shall, if not paid by the child, for all
purposes be considered as having also been properly assessed
against the parent.
[emphasis added]
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Per IRC 6201, the Secretary may unilaterally assess only
taxes paid by stamp, the section does not authorize assessment of
Subtitle A & C taxes save as a taxpayer might provide a list or
return form with basic information that can be calculated by the
Secretary or his delegate (IRC 6014). Per Section 6201(a)((3),
errors on returns filed by taxpayers may be corrected and
assessed, with such corrected errors merely treated as
mathematical or clerical errors.
Regulations governing this statute are at 26 CFR, Part
301.6201-1(a)(1) & (3) correspond with provisions of the statute:
(1) Taxes shown on return. The district director or the
director of the regional service center shall assess all
taxes determined by the taxpayer or by the district director
or the director of the regional service center and disclosed
on a return or list.
(3) Erroneous income tax prepayment credits. If the amount
of income tax withheld or the amount of estimated income tax
paid is overstated by a taxpayer on a return or on a claim
for refund, the amount so overstated which is allowed
against the tax shown on the return or which is allowed as a
credit or refund shall be assessed by the district director
or the director of the regional service center in the same
manner as in the case of a mathematical error on the
return...
There are specific requirements for the Secretary or his
delegate to make assessments, with the controlling regulation
being 26 CFR, Part 301.6203-1:
Sec. 301.6203-1 Method of assessment.
The district director and the director of the regional
service center shall appoint one or more assessment
officers. The district director shall also appoint
assessment officers in the Service Center serving his
district. The assessment shall be made by an assessment
officer signing the summary record of 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. The date of the assessment is the date the
summary record is signed by an assessment officer. If the
taxpayer requests a copy of the record of assessment, he
shall be furnished a copy of the pertinent parts of the
assessment which set forth the name of the taxpayer, the
date of assessment, the character of the liability assessed,
the taxable period, if applicable, and the amounts assessed.
[emphasis added]
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If an assessment is not premised on a return filed by a
taxpayer, it must be premised on supporting records. In the event
a properly authorized assessment officer prepares an assessment
premised on supportive documents, the assessment must (1) provide
identification of the taxpayer, (2) the character of the
liability assessed [taxing statute], (3) the taxable period, and
where applicable, (4) the amount of the assessment. The
assessment officer must endorse the assessment with pen and ink
signature. Further, per IRC 6065, the assessment officer must
sign the assessment under penalties of perjury:
Sec. 6065. Verification of returns.
Except as otherwise provided by the Secretary, any return,
declaration, statement, or other document required to be
made under any provision of the internal revenue laws or
regulations shall contain or be verified by a written
declaration that it is made under the penalties of perjury.
Identification of the character of the liability required by
26 CFR, Part 301.6203-1 is particularly significant where IRS-
initiated assessments are concerned. The tax liability must be
identified by statute, per United States v. Community TV, Inc.,
327 F.2d 797, at p. 800 (1964):
Without question, a taxing statute must describe with some
certainty the transaction, service, or object to be taxed,
and in the typical situation it is construed against the
Government. Hassett v. Welch, 303 U.S. 303, 58 S.Ct. 559, 82
L.Ed. 858.
Where the liability is not clearly particularized by
statutory authority, an assessment is of no effect. For example,
if and when Internal Revenue Service principals merely identify
the "Kind of Tax" allegedly assessed by form numbers such as
"940", "941", "1040", etc., the assessment and other documents
such as notices of Federal tax lien, notices of levy, etc., are
clearly fraudulent as tax return forms are not legal authorities
which prescribe Internal Revenue Code tax liability.
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Antecedent to assessment, there must be a determination of
liability. Requirements for establishing liability are at IRC
6001:
Sec. 6001. Notice or regulations requiring records,
statements, and special returns.
Every person liable for any tax imposed by this title, or
the collection thereof, shall keep such records, render such
statements, make such returns, and comply with such rules
and regulations as the Secretary may from time to time
prescribe. Whenever in the judgment of the Secretary it is
necessary, he may require any person, by notice served upon
such person or by regulations, to make such returns, render
such statements, or keep such records, as the Secretary
deems sufficient to show whether or not such person is
liable for tax under this title. The only records which an
employer shall be required to keep under this section in
connection with charged tips shall be charge receipts,
records necessary to comply with section 6053(c), and copies
of statements furnished by employees under 6053(a).
IRC 6001 requires notice (1) by general application
regulation, or (2) from the Secretary or his delegate.
Regulations relating to Subtitle A & C taxes under Section 6001
are found in two places, 26 CFR, Parts 1.6001-1 et seq., and
31.6001-1 et seq. By consulting the Parallel Index of Authorities
and Rules, it is found that these two regulations are the only
ones applicable to Subtitles A & C of the Internal Revenue Code,
so they speak authoritatively to application of the statute where
the instant matter is concerned. Exemption of "employees" from
the requirement to keep records except in the event of applying
for special refunds has already been cited (26 CFR, Part 31.6001-
1(d)). Therefore, there is a context for interpreting the balance
of the two regulations. In relative part, 26 CFR, Part 1.6001-1
is as follows:
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Sec. 1.6001-1 Records.
(a) In general. Except as provided in paragraph (b) of this
section [relating to farmers who deriving "gross income from
the business of farming" and related wage-earners], any
person subject to tax under subtitle A of the Code
(including a qualified State individual income tax which is
treated pursuant to section 6361(a)/13 as if it were imposed
by chapter 1 of subtitle A), or any person required to file
a return of information with respect to income, shall keep
such permanent books of account or records, including
inventories, as are sufficient to establish the amount of
gross income, deductions, credits, or other matters required
to be shown by such person in any return of such tax or
information.
(d) Notice by district director requiring returns
statements, or the keeping of records. The district director
may require any person, by notice served upon him, to make
such returns, render such statements, or keep such specific
records as will enable the district director to determine
whether or not such person is liable for tax under subtitle
A of the Code, including qualified State individual income
taxes, which are treated pursuant to section 6361(a) as if
they were imposed by chapter 1 of subtitle A.
[reference to farmers & wage-earners added]
[emphasis added]
____________________
13 Statutes relating to State qualified income tax, IRC 6361 et
seq., were repealed in 1990 via. P.L. 101-508, effective
Nov. 5, 1990. This is problematic for State income tax
systems as nearly all, including the Oklahoma Income Tax
Code, are premised on Internal Revenue Code taxing
authority. So far as regulations pertaining to collection of
qualified State income tax is concerned, the special
definition at 26 CFR, Part 301.6365-1 is compromising: "(a)
State. For purposes of subchapter E and the regulations
thereunder [IRC 6361 et seq.], the term "State" shall
include the District of Columbia, but shall not include the
Commonwealth of Puerto Rico or any possession of the United
States. (b) Governor. For purposes of subchapter E and the
regulations thereunder, the term "Governor" shall include
the Mayor of the District of Columbia."
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It is significant that 26 CFR, Part 1.6001-1(a), while a
regulation, does not stipulate who precisely is liable for taxes
prescribed in Subtitles A & C of the Internal Revenue Code. It
merely says that those who are liable will keep books and
records. Therefore, this is not a general application regulation
in the sense of particularizing liability as it does not specify
who is liable. The more important portion of the regulation is
Section 1.6001-1(d), which stipulates that the district director
may require any person, "by notice served upon him," to make
returns, statements, etc. Therefore, the only real determination
in Section 1.6001-1 is that the person required to keep books and
records by Section 1.6001-1(a) is the person notified by the
director under authority of Section 1.6001(d). The matter of who
is liable is still not resolved save as the Secretary or his
delegate provides direct notice.
Other than the definitive statement concerning employees at
26 CFR, Part 31.6001-1(d), most of the Section 31.6001 series of
regulations are as nebulous concerning precise identity of who
must keep books and records as Section 1.6001-1(a) is. However,
the matter is ultimately resolved at Section 31.6001-6, which is
the determinative statement corresponding with Section 1.6001-
1(d):
Sec. 31.6001-6 Notice by district director requiring
returns, statements, or the keeping of records.
The district director may require any person, by notice
served upon him, to make such returns, render such
statements, or keep such specific records as will enable the
district director to determine whether or not such person is
liable for any of the taxes to which the regulations in this
part have application.
Regulations at 26 CFR, Parts 1.6001-1(d) and 31.6001-6
demonstrate that the district director must formally provide
notice to whomever is liable as an employer for Subtitle A & C
taxes. Therefore, per IRC 6001, in the absence of notice from the
district director, as the Secretary's delegate, there is no
liability for Subtitle A & C taxes.
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Next, the notice required by IRC 6001 must be premised on a
statute which prescribes liability. As previously demonstrated,
IRC Sections 3403 & 3404 stipulate that the employer, defined at
Section 3401(d), by way of the designated withholding agent, is
the person liable for withholding, reporting, and paying Subtitle
A & C taxes withheld under authority of IRC Chapter 24.
As already seen via United States v. Community TV, Inc., a
taxing statute which identifies the service, transaction or
object of tax must be in evidence to support an assessment.
Beyond that, however, a statute which prescribes liability for
any given tax must also be in evidence. This was conclusively
addressed in criminal forum via UNITED STATES OF AMERICA v. Menk,
260 F.Supp. 784 (1966), at p. 787:
It is immediately apparent that this section alone does not
define the offense as the defendant contends. But rather,
all three of the sections referred to in the information --
Sections 4461, 4901 and 7203 -- must be considered together
before a complete definition of the offense is found.
Section 4461 imposes a tax on persons engaging in a certain
activity; Section 4901 provides that payment of the tax
shall be a condition precedent to engaging in the activity
subject to the tax; and Section 7203 makes it a misdemeanor
to engage in the activity without having first paid the tax,
and provides the penalty. It is impossible to determine the
meaning or intended effect of any one of these sections
without reference to the others.
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Where the Moore-Gunwall case is concerned, the Government,
or more appropriately, the "United States of America" have
alleged an offense under IRC 7212(a), interference with
administration of internal revenue laws. The only evidence of
internal revenue liability is a "levy" form which identifies the
"Kind of Tax" allegedly assessed against the Moores as a "1040"
tax. Therefore, while a criminal liability statute is in
evidence, the allegation of offense falls short for want of a
taxing statute which identifies the service, transaction, and
object of the tax, and a statute which conclusively demonstrates
liability. In other words, the allegation of offense, premised
solely on IRC 7212(a), is wholly inadequate as identification of
an applicable taxing statute and a statute which prescribes
liability cannot be assumed -- they must be in evidence to
sustain civil or criminal causes.
The "levy" evidence, which was employed as the mechanism for
seizure and sale of the Moore home and other property, was also
issued by way of an administrative action without judicially-
determined liability. Therefore, the "levy" instrument is prima
facie evidence of criminal liability on the part of Internal
Revenue Service principals engaged in the enterprise of
assessment and collection of alleged "1040" tax at Moore expense.
In relative part, the Fifth Article of Amendment to the
Constitution of the United States provides the following: "No
person shall be deprived of life, liberty or property without due
process of law."
The Fifth Amendment due process assurance makes no exception
for the Internal Revenue Service or any other private or
Government agency. While the in rem action prescribed in Chapter
75 of the Internal Revenue Code might be legitimate in United
States maritime and territorial jurisdiction, it has no quarter
in the Continental United States. And the notion that the
Internal Revenue Code authorizes such action in the Continental
United States is so much hogwash. The spectrum of
constitutionally secured due process rights is preserved at IRC
7804(b):
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(b) Preservation of existing rights and remedies
Nothing in Reorganization Plan Numbered 26 of 1950 or
Reorganization Plan Numbered 1 of 1952 shall be considered
to impair any right or remedy, including trial by jury, to
recover any internal revenue tax alleged to have been
erroneously or illegally assessed or collected, or any
penalty claimed to have been collected without authority, or
any sum alleged to have been excessive or in any manner
wrongfully collected under the internal revenue laws. For
the purpose of any action to recover any such tax, penalty,
or sum, all statutes, rules, and regulations referring to
the collector of internal revenue, the principal officer for
the internal revenue district, or the Secretary, shall be
deemed to refer to the officer whose act or acts referred to
in the preceding sentence gave rise to such action. The
venue of any such action shall be the same as under existing
law.
Reorganization plans cited in Section 7804(b) were
responsible for reorganization of the Internal Revenue Code of
1939, which became the Internal Revenue Code of 1954 (Vol. 68A of
the Statutes at Large). Also, "trial by jury", specified in both
the Fifth and Fourteenth Amendments, is a right, not a remedy, so
needs to be moved into proper place in the first sentence to
clarify application of the statute. When edited for clarity, the
first portion of Section 7804(b) reads as follows:
Nothing in [the IRC] shall be considered to impair any
right, [including trial by jury], or remedy, [***] to
recover any internal revenue tax alleged to have been
erroneously or illegally assessed or collected...
Again, the definition of "includes" and "including" is
applicable: The example represents the class. By using "trial by
jury" as the example, Section 7804(b) preserves all due process
rights itemized in the Fourth, Fifth, Sixth, Seventh, and
Fourteenth Amendments.
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Internal Revenue Service principals are fully aware of the
due process mandate as the first rule for appeals officers at 26
CFR, Part 601.106(f)(1) clearly states the case:
(1) Rule I. An exaction by the U.S. Government, which is not
based upon law, statutory or otherwise, is a taking of
property without due process of law, in violation of the
Fifth Amendment to the U.S. Constitution...
With Section 7804(b) providing the order of priority, it is
clear that the Internal Revenue Service is compelled to secure
judgments prior to executing administrative seizures. This is
verified at IRC 7403, in relative part:
Sec. 7403. Action to enforce lien or to subject property
to payment of tax.
(a) Filing.
In any case where there has been a refusal or neglect to pay
any tax, or to discharge any liability in respect thereof,
whether or not levy has been made, the Attorney General or
his delegate, at the request of the Secretary, may direct a
civil action to be filed in a district court of the United
States to enforce the lien of the United States under this
title with respect to such tax or liability or to subject
any property, of whatever nature, of the delinquent, or in
which he has any right, title, or interest, to the payment
of such tax or liability. For purposes of the preceding
sentence, any acceleration of payment under section 6166(g)
shall be treated as a neglect to pay tax.
(c) Adjudication and decree.
The court shall, after the parties have been duly notified
of the action, proceed to adjudicate all matters involved
therein and finally determine the merits of all claims to
and liens upon the property, and, in all cases where a claim
or interest of the United States therein is established, may
decree a sale of such property, by the proper officer of the
court, and a distribution of the proceeds of such sales
according to the findings of the court in respect to the
interests of the parties and of the United States ....
[emphasis added]
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Internal Revenue Service seizures without judicial orders
from a court of competent jurisdiction are patently fraud. The
American people have the constitutionally secured right to due
process of law prior to surrender of life, liberty, or property.
Which is to say, if someone contests an Internal Revenue Service
assessment, the Service must prove the claim in a court of law,
and where the sovereign American people are concerned, the matter
must be decided in an Article III court of the United States
operating in the framework of the "arising under" clause at
Article III, Section 2.1 of the Constitution.
Next, there is the matter of regulations: Per the Federal
Register Act, at 44 U.S.C. 1501 et seq., particularly at Section
1505, general application regulations must be published in the
Federal Register before any given statute in any given Act of
Congress is effective. This matter has been addressed by courts
of the United States numerous times, with California Bankers
Ass'n. v. Schultz, 416 U.S. 21, 26, 94 S.Ct. 1494, 1500, 39
L.Ed.2d 812 (1974), providing one of the more definitive
statements:
Because it has a bearing on our treatment of some of the
issues raised by the parties, we think it important to note
that the Act's civil and criminal penalties attach only upon
violation of regulations promulgated by the Secretary; if
the Secretary were to do nothing, the Act itself would
impose no penalties on anyone.
The necessity of regulations was even more emphatically
stated in Dodd v. United States, 223 F.Supp. 785, 787 (1963):
"For Federal tax purposes, the Federal regulations govern."
In United States v. Mersky, 361 U.S. 431, 438, the
relationship of statutes and regulations was articulated:
The result is that neither the statute nor the regulations
are complete without the other, and only together do they
have any force. In effect, therefore, the construction on
one necessarily involves the construction of the other ....
The mandate for regulations is articulated in the Internal
Revenue Code at Section 7805(a):
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(a) Authorization.
Except where such authority is expressly given by this title
to any person other than an officer or employee of the
Treasury Department, the Secretary shall prescribe all
needful rules and regulations for the enforcement of this
title, including all rules and regulations as may be
necessary by reason of any alteration of law in relation to
internal revenue.
[emphasis added]
As previously demonstrated, the Internal Revenue Service is
construed as an agency or component of the Department of the
Treasury, not the Treasury Department/14, so the IRC condemns any
initiative or action by IRS principals without properly executed
delegations of authority and regulations.
It is useful at this juncture to consult the Parallel Table
of Authorities and Rules for general application regulations
relating to key statutes in subtitle F of the IRC The left column
lists statutes from subtitle F of the IRC in ascending order, and
the right lists general application regulations. Title 26 of the
Code of Federal Regulations, Parts 1 and 31, are applicable to
Subtitles A & C of the Code, with some regulations in Part 301
appearing to be applicable; Title 27 of the Code of Federal
Regulations pertains to Bureau of Alcohol, Tobacco and Firearms
authority relating to Subtitle E taxes and customs laws; 26 CFR,
Part 403 is IRS authority relating to narcotics and other drugs
under United States customs laws (internal revenue laws):
Subchapter C. Lien for Taxes:
____________________
14 While the Internal Revenue Service is listed as a component
of the Department of the Treasury in the Department of the
Treasury organization chart in The United States Government
Manual, and in regulations governing conduct of Department
of the Treasury employees (31 CFR, Parts 0 & 1), the agency
is not listed as a component of the United States Department
of Treasury in Title 31 of the United States Code. The only
mention of IRS is an authority for the President to appoint
the General Counsel for the "Internal Revenue Service".
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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6321 Lien for taxes 27 Part 70
6322 Priority of lien NO REGULATION
6323 Validity and priority against certain persons 26 Part 1
27 Part 70
6324 Special liens for estate and gift tax NO REGULATIONS
6324A Special lien for estate tax deferred
under Sec. 6166 26 Part 301
6324B Special lien for additional estate tax
attributable to farm .... 26 Part 301
6325 Release of lien or discharge of property 26 Part 401
27 Part 70
6326 Administrative appeal of liens 26 Part 301
27 Part 70
Subchapter D. Seizure of Property for Collection of Taxes:
6331 Levy and distraint 27 Part 70
6332 Surrender of property subject to levy 27 Part 70
6333 Production of books 27 Part 70
6334 Property exempt from levy 26 Part 404
27 Part 70
6335 Sale of seized property 27 Part 70
6336 Sale of perishable goods 27 Part 70
6337 Redemption of property 27 Part 70
6338 Certificate of sale; deed of real property 27 Part 70
6339 Legal effect of certificate of sale .... 27 Part 70
6340 Records of sale 27 Part 70
6341 Expense of levy and sale 27 Part 70
6343 Authority to release levy and return property 27 Part 70
Chapter 68 -- Additions to the Tax,
Additional Amounts, and Assessable Penalties:
6651 Failure to file tax return or pay tax
27 Part 70, 24, 25, 170
6652 Failure to file certain information returns,
registration statements, etc. NO REGULATION
6653 FAILURE TO PAY STAMP TAX 27 PART 70
6654 Failure by individual to pay estimated income tax
26 Part 1
6655 Failure by corporation to pay estimated income tax
26 Part 1
6656 Failure to make deposit of taxes 27 Part 25, 70
6657 Bad checks 27 Part 70, 194
6658 Coordination with title 11 27 Part 70
6662 Imposition of accuracy-related penalties 26 Part 1
6663 Imposition of fraud penalties NO REGULATION
6664 Definitions and special rules NO REGULATION
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Subchapter B. Assessable PenaltiesPart 1 - General Provisions
NO REGULATION LISTED IF STATUTE IS NOT LISTED:
6671 Rules for application of assessable penalties 27 Part 70
6672 Failure to collect and pay over tax,
or attempt to evade or defeat tax 27 Part 70
6676 [Failure to provide identifying numbers - Repealed]
26 Part 35a; 27 Part 19, 24
6689 Failure to file notice of redetermination
of foreign tax 26 Part 301
6701 Penalties for aiding and abetting
understatement of tax liability 27 Part 70
Part II -- Failure to comply with certain
information reporting requirements
NO REGULATION LISTED IF STATUTE IS NOT LISTED:
6721 Failure to file correct information returns 26 Part 35a
6723 Failure to comply with other info.
reporting requirements 27 Part 70
Chapter 70 - Part II, Jeopardy Assessments:
6861 Jeopardy assessments of income, estate, gift,
and certain excise taxes NO REGULATION
6862 Jeopardy assessment of other taxes 27 Part 70
6863 Stay of collection of jeopardy assessments 27 Part 70
6864 Termination of extended period
for payment in case of carryback NO REGULATION
Subchapter B. Receiverships, etc.:
6871 Claims for income, estate, gift,
and certain excise taxes in receivership NO REGULATION
6872 Suspension of period on assessment NO REGULATION
6873 Unpaid claims NO REGULATION
Chapter 75 - Crimes, other offenses, and forfeitures
Part I - General provisions:
7201 Attempt to evade or defeat tax NO REGULATION
7202 Willful failure to collect or pay over tax NO REGULATION
7203 Willful failure to file return,
supply information, or pay tax NO REGULATION
7204 Fraudulent statement or failure
to make statement to employee NO REGULATION
7205 Fraudulent withholding exemption certificate
or failure to supply information NO REGULATION
7206 Fraud and false statements NO REGULATION
7207 Fraudulent returns, statements,
or other documents 27 Part 70
7208 Offenses relating to stamps NO REGULATION
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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7209 Unauthorized use or sale of stamps 27 Part 70
7210 Failure to obey summons NO REGULATION
7211 False statements to purchasers or lessees
relating to tax NO REGULATION
7212 Attempts to interfere with administration
of internal revenue laws 27 Part 170, 270, 275, 285
7213 Unauthorized disclosure of information 27 Part 197
7214 Offenses by officers and employees
of the United States 27 Part 70
7215 Offenses with respect to collected taxes NO REGULATION
7216 Disclosure of use of information
by preparers of returns 26 Part 1, 301
Part II -- Penalties applicable to certain taxes:
7231 Failure to obtain license for collection
of foreign items NO REGULATION
7232 Failure to register, etc., by manufacturer
or producer of petro products NO REGULATION
Subchapter B. Other offenses:
7261 through 7275 NO REGULATION
Subchapter C - Forfeitures
Part I - Property subject to forfeiture:
7301 Property subject to tax NO REGULATION
7302 Property used in violation
of internal revenue laws 27 Part 24, 252
7303 Other property subject to forfeiture NO REGULATION
7304 Penalty for fraudulently claiming drawback
27 Part 70
Part II - Provisions common to forfeitures:
7321 Authority to seize property subject to forfeiture
26 Part 403; 27 Part 72/15
7322 Delivery of seized personal
property to U.S. marshal 26 Part 403; 27 Part 72
____________________
15 As previously demonstrated, the whole seizure-forfeiture
scheme is premised on customs laws, with IRS initiatives
resting on authorization at 26 CFR, Part 403 relating to
narcotics and other drugs trade, and BATF relying on customs
laws relating to distilled spirits, tobacco products,
firearms, etc., under provisions of 27 CFR, Part 72. The "in
rem" action, whether administrative or judicial, is a
maritime action premised on private international law -- a
form of law which is not recognized by constitutions of the
United States or the several States. In this framework, the
"United States of America" is agent for undisclosed foreign
principals, the "Central Authority" or "Competent Authority"
(28 CFR, Parts 0.49 & 0.64-1).
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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7323 Judicial action to enforce forfeiture
26 Part 403; 27 Part 72
7324 Special disposition of
perishable goods 26 Part 403; 27 Part 72
7325 Personal property valued at
$100,000 or less 26 Part 403; 27 Part 72, 270
7326 Disposal of forfeiture or abandoned
property in special cases 26 Part 403; 27 Part 72
7327 Customs laws applicable 26 Part 403; 27 Part 72
Subchapter D. Miscellaneous Penalty and Forfeiture Provisions:
7341 Penalty for sales to evade tax NO REGULATION
7342 Penalty for refusal to permit entry or examination
27 Part 24, 25, 170, 270, 275, 285, 290, 295, 296
7343 Special Chapter 75 definition of "person" NO REGULATION
7344 Extended application of penalties relating
to officers of the Treasury Department NO REGULATION
Chapter 78 -- Discovery of liability and enforcement of title
Subchapter A. Examination and inspection:
7601 Canvass of districts for
taxable persons and objects 27 Part 70
7602 Examination of books and witnesses 27 Part 70, 170, 296
7603 Service of summons 27 Part 70
7604 Enforcement of summons 27 Part 70
7605 Time and place of examination 27 Part 70
7606 Entry of premises for examination
of taxable objects 27 Part 24, 25, 70, 170, 270
7608 Authority of internal revenue
enforcement officers 27 Part 70, 170, 270
7609 Special procedures for
third-party summonses NO REGULATION
7610 Fees and costs for witnesses 27 Part 70
7611 Restrictions on church tax inquires
and examination NO REGULATION
Subchapter B. General powers and duties:
7621 Internal revenue districts NO REGULATION
7622 Authority to administer oaths and certify 27 Part 70
7623 Expenses of detection and punishment of frauds 27 Part 70
7624 Reimbursement of state and
local law enforcement agencies 26 Part 301
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 83 of 165
The somewhat laborious task of integrating statutory
nomenclature into the Parallel Table of Authorities and Rules
demonstrates the limited application of Internal Revenue Code
administration and enforcement authority relating to the several
States party to the Constitution of the United States and the
sovereign American people. Nearly all subtitle F authority went
with BATF when the Department of the Treasury component was
segregated from IRS in 1972. That which is not applicable under
BATF authority relating to Subtitle E taxes (27 CFR, Part 70),
for the most part falls under customs laws (26 CFR, Part 403 & 27
CFR, Part 72). Therefore, per California Bankers Association v.
Schultz, Dodd v. United States, and United States v. Mersky, all
initiatives by or on behalf of the Internal Revenue Service under
alleged subtitle F authority are fraudulent, void and patently
illegal, and must be construed as such, unless or until
legitimate general application delegations of authority and
regulations for statutory application are introduced into
evidence.
Legitimacy of both cases rests on the validity of 26 U.S.C.
7212(a), with the Government's house of cards premised on the
allegation that Internal Revenue Service principals were in fact
carrying out lawful duties and there was a valid "1040" income
tax assessment against the Moores. The only evidence to support
the government's allegation is a "levy" form which lists "1040"
in the column that allegedly identifies the "Kind of Tax" -- it
will be noted that the "levy" form is not signed under penalties
of perjury, as required at IRC 6065 and attending regulations,
and there is no imprint of a Treasury Department seal, as
required at 26 CFR, Part 26 CFR, Part 301.7514-1(c) & (d):
(c) Use of official seal. Each seal of office established by
this section may be affixed in lieu of the seal of the
Treasury Department or any certificate or attestation
required to be made by the officer for whose office such
seal is established in authentication of originals and
copies of books, records, papers, writings, and documents of
the Internal Revenue Service in the custody of such officer,
for all purposes, including the purposes of 28 U.S.C.
1733(b), Rule 44 of the Federal Rules of Civil Procedure,
and Rule 27 of the Federal Rules of Criminal Procedure...
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 84 of 165
(d) Judicial notice. In accordance with the provisions of
section 7514, judicial notice shall be taken of the seals
established under this section.
Statutory provisions at IRC 7514 are as follows:
Sec. 7514. Authority to prescribe or modify seals.
The Secretary is authorized to prescribe or modify seals of
office for the district directors of internal revenue and
other officers or employees of the Treasury Department to
whom any of the functions of the Secretary of the Treasury
shall have been or may be delegated. Each seal so prescribed
shall contain such device as the Secretary may select. Each
seal shall remain in the custody of any officer or employee
whom the Secretary may designate, and, in accordance with
the regulations approved by the Secretary, may be affixed in
lieu of the seal of the Treasury Department of any
certificate or attestation (except for material to be
published in the Federal Register) that may be required of
such officer or employee. Judicial notice shall be taken of
any seal prescribed in accordance with this authority, a
facsimile of which has been published in the Federal
Register together with the regulations prescribing such seal
and the affixation thereof.
Seals of the various offices of the District Director of
Internal Revenue are listed at 26 CFR, Part 301.7514-1(a)(2)(ii).
In the absence of pen and ink attestation on any document entered
into evidence or otherwise executed against someone as a legally
enforceable instrument, the District Director's seal must be
affixed.
In general, this is also a requirement for documents to be
construed as legal evidence in Federal courts, as stipulated at
28 U.S.C. 1733, reproduced in relative part:
(b) Properly authenticated copies of transcripts of any
books, records, papers or documents of any department or
agency of the United States shall be admitted in evidence
equally with the originals thereof.
[emphasis added]
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 85 of 165
The requirement of authentication is stipulated at Rule 44,
Federal Rules of Civil Procedure, at follows:
Rule 44. Proof of Official Record
(a) Authentication.
(1) Domestic. An official record kept within the United
States, or any state, district, or commonwealth, or within a
territory subject to the administrative and judicial
jurisdiction of the United States, or any entry thereon,
when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by the
officer's deputy, and accompanied by a certificate that such
officer has the custody. The certificate may be made by a
judge of a court of record of the district or political
subdivision in which the record is kept, authenticated by
the seal of the court, or may be made by any public officer
having a seal of office and having official duties in the
district or political subdivision in which the record is
kept, authenticated by the seal of the officer's office.
Rules for criminal procedure are the same as above, per Rule
27, Federal Rules of Criminal Procedure:
Rule 27. Proof of Official Record
An official record or an entry therein or the lack of such a
record or entry may be proved in the same manner as in civil
actions.
Unless or until documents such as the copy of the alleged
"levy" entered as the foundation of evidence in the Moore-Gunwall
case are certified as true, correct and authentic in compliance
with the above, they have no legal effect. The court cannot take
judicial notice or accept it as authentic as it has not been
certified under seal or pen and ink attestation as being
legitimate.
The extent of fraud perpetrated by Internal Revenue Service
principals, advanced by attorneys in offices of the Department of
Justice and United States attorneys, and accommodated by judicial
officers in courts of the United States, has barely been
scratched by particulars addressed in this section. The scheme
amounts to choreographed plunder. The Internal Revenue Service,
an agency of the Department of the Treasury, Puerto Rico, simply
has no legal standing or authority in law so far as the several
States party to the Constitution and the American people at large
are concerned.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 86 of 165
The questions arise, "What business does IRS have in the
several States party to the Constitution? How has IRS managed to
secure a toe-hold to carry out the general fraud?"
The answer to those questions is discernible by careful
reading of Department of the Treasury rules of conduct applicable
to all Department components at 31 CFR, Parts 0 & 1: The
Internal Revenue Service provides service to the Treasury of the
United States on contract. The Service is contracted to develop
and maintain systems and provide record-keeping services for the
Treasury of the United States. Employees of the Service may serve
as Special Government Employees for up to 130 days in any given
365, but such service does not affect the nature of IRS contracts
or what authority the Department of the Treasury component has
with respect to Subtitle A & C taxes and application within the
several States party to the Constitution.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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III. United States Jurisdiction;
Character of the Court
As previously treated, jurisdiction of the United States in
the several States depends on two key elements: (1) territorial
jurisdiction which has been properly secured in accordance with
Article I, Section 8.17 of the Constitution, and (2) the nature
of the offense. The United States does not have general police
powers in the several States party to the Constitution, and per
Article I, Section 8.15 & Article IV, Section 4, what enforcement
authority the United States may exercise in the several States
party to the Constitution is vested in the militia. In the event
of invasion, the United States is obligated to protect the
several States; in the event of civil uprising, the United
States, on invitation of the legislature or chief executive of
any given State, may provide assistance by way of the militia.
Article I, Section 8.6 stipulates that Congress has power,
"To provide for the Punishment of counterfeiting the Securities
and current Coin of the United States," and Article III, Section
3.2 stipulates, "The Congress shall have Power to declare the
Punishment of Treason..." Various of the Amendments promulgated
since 1868 stipulate that the United States will assure civil and
voting rights for "citizens of the United States" as framed by
the various amendments.
However, Article III, Section 2.3 of the Constitution makes
the following stipulation:
The trial of all Crimes, except in Cases of Impeachment,
shall be by Jury; and such Trial shall be held in the State
where the said Crimes shall have been committed; but when
not committed within any State, the Trial shall be at such
Place or Places as the Congress may by Law have directed.
Provisions at Article I, Section 8.6 and Article III,
Section 3.2 stipulate that Congress may prescribe punishment for
the crimes enumerated but do not extend authority for the United
States to exercise judicial authority in these matters. Nor, for
that matter, do any of the Amendments relating to civil and
voting rights directly extend United States judicial authority to
the several States party to the Constitution. It may be that
extension of legislative authority implicitly expands Federal
judicial authority over voting and civil rights matters relating
to "citizens of the United States," but even this authority falls
in a narrow range which does not grant general Federal
jurisdiction in the several States.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 88 of 165
Assuming the United States may extend judicial authority to
the several States in matters pertaining to civil and voting
rights, authority would have to fall under the "arising under"
clause at Article III, Section 2.1:
Section 2. The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of
the United States, and Treaties made, or which shall be
made, under their Authority...
This limitation is necessitated by the Fifth Amendment:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.
[emphasis added]
The "due process of law" clause in the Fifth Amendment, as
the "in Law and Equity" provision construed to be in the "arising
under" clause, is contemplated as the common law which evolved in
the English-American lineage -- in a "trial by jury" setting, the
jury determines both law and fact. Theoretically, then, a trial
by jury, whether in a court of the United States or one of the
several States party to the Constitution, would be more or less
the same in character -- so long as the jury of peers has
authority to determine both law and fact, the jury has power to
turn back capricious government initiatives. But the Separation
of Powers Doctrine, as articulated in Article II of the Articles
of Confederation and the Tenth Article of Amendment to the
Constitution, is all-important where matters at hand are
concerned. The United States Supreme Court, in New York v. United
States, 550 U.S. ___, 120 L.Ed.2d 120, 120 S.Ct. ___ (1992),
headnote 6, articulated limitations:
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 89 of 165
In a case involving the division of authority between
federal and state governments, the inquiries as to whether
an act of Congress is authorized by one of the powers
delegated to Congress in Article I of the Federal
Constitution, or whether an act of Congress invades the
province of state sovereignty reserved by the Constitution's
Tenth Amendment, are mirror images of each other: if a
power is delegated to Congress in the Constitution, the
Tenth Amendment expressly disclaims any reservation of that
power to the states, whereas if a power is an attribute of
state sovereignty reserved by the Tenth Amendment, it is
necessarily a power the Constitution has not conferred on
Congress; the Tenth Amendment directs the courts to
determine whether an incident of state sovereignty is
protected by a limitation on an Article I power.
Another indispensable truism relative to matters at hand is
articulated in headnote 25 of the New York v. United States
decision:
States are not mere political subdivisions of the United
States, and state governments are neither regional offices
nor administrative agencies of the federal government; the
Federal Constitution instead leaves to the several states a
residuary and inviolable sovereignty, reserved explicitly to
the states by the Constitution's Tenth Amendment.
In United States v. Lopez, U.S. Supreme Court case number
93-1260/16, decided April 26, 1995, Chief Justice Rehnquist
recited principles relating to delegated authority which were
articulated by American founders:
____________________
16 This cite comes from the decision in the Lopez case
presently posted on the Internet. It does not include
editing or additional opinions such as the extensive
commentary by Justice Thomas.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 90 of 165
We start with first principles. The Constitution creates a
Federal Government of enumerated powers. See U.S. Const.,
Art. I, 8. As James Madison wrote, - [t]he powers delegated
by the proposed Constitution to the federal government are
few and defined. Those which are to remain in the State
governments are numerous and undefined. - The Federalist No.
45, pp. 292-293 (C. Rossiter ed. 1961). This
constitutionally mandated division of authority -- was
adopted by the Framers to ensure protection of our
fundamental liberties -- Gregory V. Ashcroft, 501 U.S. 452,
458 (1991) (internal quotation marks omitted). - Just as the
separation and independence of the coordinate branches of
the Federal Government serves to prevent the accumulation of
excessive power in any one branch, a health balance of power
between the States and the Federal Government will reduce
the risk of tyranny and abuse from either front. - Ibid.
New York v. United States, United States v. Lopez, and more
recently, United States v. Lanier (Supreme Court case No. 95-
1717, decided March 31, 1997), suggest that the United States
Supreme Court is presently of a disposition to tackle difficult
issues, and where application of law and the Constitution are
concerned, rule accordingly. At any rate, the Separation of
Powers Doctrine is alive and well in the United States Supreme
Court: Where the Constitution of the United States does not
delegate authority to the United States, Federal officials may
not proceed.
It will be noted that none of the alleged crimes in either
the Moore-Gunwall case or the Meador case fall within the list of
constitutionally enumerated powers: The Moore-Gunwall case is
premised on 18 U.S.C. 2, "principal in conspiracy", Section 371,
"conspiracy to commit offense or to defraud the United States",
Section 1341, "frauds & swindles via Postal Service", and 26
U.S.C. 7212(a), "corrupt or forcible interference with
administration of internal revenue laws"; the Meador case, which
is inextricably connected with the Moore-Gunwall case (a fraud is
a fraud from beginning to end), is premised on 18 U.S.C. 1503,
"influencing or injuring officer, juror or witness generally",
and Section 1504, "influencing juror by writing".
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 91 of 165
It will be noted that none of the Title 18 offenses alleged
in the two cases is listed in the Parallel Table of Authorities
and Rules, so none of the statutes have general application
legislative regulations applicable to the several States and the
population at large published in the Federal Register. Quite
simply, none of these offenses is cognizable in the framework of
Congress' constitutionally delegated powers.
Viability of both cases rests on the validity of 26 U.S.C.
7212(a), with prosecution premised on the allegation that
Internal Revenue Service principals were in fact carrying out
lawful duties and there was a legitimate "1040" income tax
assessment against the Moores. The only support for the
government's allegation is a "levy" form which lists "1040" in
the column that allegedly identifies the "Kind of Tax" -- as
previously noted, the "levy" form is not signed under penalties
of perjury, as required at IRC 6065 and attending regulations,
and there is no imprint of a Treasury Department seal, as
required at 26 CFR, Part 26 CFR, Part 301.7514-1(c) & (d). The
matter was treated in previous sections: The "levy" instrument
is not properly certified so it cannot be judicially noticed or
validated as legitimate evidence; it identifies the alleged
"Kind of Tax" as "1040", which does not identify a taxing statute
in the Internal Revenue Code; and there is no court order which
authorized seizure of Moore property by way of the "levy" so
legitimacy of the underlying assessment has never been judicially
determined.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 92 of 165
No taxing statute is at any point identified, and no statute
or regulation prescribing Moore liability for any Internal
Revenue Code taxing statute is in evidence. Therefore, the "levy"
document itself is prima facie evidence of fraud -- it speaks to
collusion, conspiracy and accommodation of plunder and sedition.
It is axiomatic, then, that jurisdiction of the court can
legitimately be challenged, particularly where the cases have
been prosecuted in the Article IV "United States District Court"
for the Northern District of Oklahoma rather than the Article III
"district court of the United States" -- "The United States
District Court has only such jurisdiction as Congress confers."
(Eastern Metals Corp. v. Martin, 191 F.Supp 245 (D.C.N.Y. 1960))
The United States district courts are not courts of general
jurisdiction. They have no jurisdiction except as prescribed
by Congress pursuant to Article III of the Constitution
[cites omitted]. Graves v. Snead, 541 F.2d 159 (6th Cir.
1976)
Jurisdiction of court may be challenged at any stage of the
proceeding, and also may be challenged after conviction and
execution of judgment by way of writ of habeas corpus. U.S.
v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)
At this juncture, there are two major issues concerning the
court: (1) general jurisdiction of the United States in the
several States party to the Constitution, and (2) the character
of the United States District Court. Both are paramount and both
must be determined in accordance with law and applicable judicial
determinations. First, we will address United States jurisdiction
in the several States party to the Constitution. This begins with
Article I, Section 8.17 of the Constitution:
[The Congress shall have Power] To exercise exclusive
Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the Seat of
the Government of the United States, and to exercise like
Authority over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings...
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Page 93 of 165
The intent of limiting Federal territory was articulated in
the Ordinance of 1787: The Northwest Territorial Government,
promulgated by the Confederate Congress on July 13, 1787./17
Territories beyond chartered borders of the thirteen States in
the original Union of States party to the Constitution were given
to the United States as a means to terminate residual debt from
the Civil War, but only on condition that the surplus territories
were to become States party to the Union. If the territories did
not become States, they were to revert to the States where
ownership was originally vested. Among other things, the
Ordinance established the English-American common law as the law
of the land in the Northwest Territories, as was the case for the
original States party to the Constitution.
It wasn't until after the Civil War that Congress launched a
general quest for permanent United States ownership of property
other than that stipulated at Article I, Section 8.17 of the
Constitution. This commenced in the early 1870's with
establishment of national parks, Yellowstone being the first, and
establishment of Indian reservations in what were to become
States after the Civil War. Thus, two categories of land were
retained by the United States in nearly all States admitted to
the Union after approximately 1870: Unappropriated public lands,
and lands set aside for Native American Indians by treaty. Both
fall under general jurisdiction of the Department of Interior,
with the Bureau of Land Management and Bureau of Indian Affairs
being the two principal Federal administration agencies for these
lands.
____________________
17 The Ordinance of 1787 was first adopted by the Confederate
Congress then subsequently by the Congress of the United
States. The Ordinance is still part of United States Organic
Law -- see at page LI, Vol. I of the United States Code for
1994, produced and distributed by the Government Printing
Office.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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The Oklahoma Constitution, at Article I, Section 3, reflects
the effect of the Federal land-grab:
Sec. 3. Unappropriated public lands -- Indian lands --
Jurisdiction of the United States
The people inhabiting the State do agree and declare that
they forever disclaim all right and title in or to any
unappropriated public lands lying within the boundaries
thereof, and to all lands lying within said limits owned or
held by any Indian, tribe, or nation; and that until the
title to any such public land shall have been extinguished
by the United States the same shall be and remain subject to
the jurisdiction, disposal, and control of the United States
....
Lands retained in States admitted to the Union since 1870
are for the most part national parks, national forests, and other
such lands, many of which are among the richer national resource
lands on the North American Continent. There is no constitutional
provision which authorized United States retention of these
lands, and the Ordinance of 1787 confirms that the intent of
American founders to limit United States territorial interest,
but the present situation is as it is so there is nothing to
immediately be done about it. However, even conceding the post-
Civil War land grab, there are limits to United States
jurisdiction in the several States party to the Constitution, as
articulated at 18 U.S.C. 7:
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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Sec. 7. Special maritime and territorial jurisdiction of
the United States defined
The term "special Maritime and territorial jurisdiction of
the United States", as used in this title, includes:
(1) The high seas, any other waters within the admiralty and
maritime jurisdiction of the United States and out of the
jurisdiction of any particular State, and any vessel
belonging in whole or in part to the United States or any
citizen thereof, or to any corporation created by or under
the laws of the United States, or of any State, Territory,
District, or possession thereof, when such vessel is within
the admiralty and maritime jurisdiction of the United States
and out of the jurisdiction of any particular State.
(2) Any vessel registered, licensed, or enrolled under the
laws of the United States, and being on a voyage upon the
waters of any of the Great Lakes, or any of the waters
connecting them, or upon the Saint Lawrence River where the
same constitutes the International Boundary Line.
(3) Any lands reserved or acquired for the use of the United
States, and under the exclusive or concurrent jurisdiction
thereof, or any place purchased or otherwise acquired by the
United States by consent of the legislature of the State in
which the same shall be, for the erection of a fort,
magazine, arsenal, dockyard, or other needful building.
(4) Any island, rock, or key containing deposits of guano,
which may, at the direction of the President, be considered
as appertaining to the United States.
(5) Any aircraft belonging in whole or in part to the United
States, or any citizen thereof, or to any corporation
created by or under the laws of the United States, or any
State, Territory, District, or possession thereof, while
such aircraft is in flight over the high seas, or over any
other waters within the admiralty and maritime jurisdiction
of the United States and out of the jurisdiction of any
particular State.
(6) Any vehicle used or designed for flight or navigation in
space and on the registry of the United States pursuant to
the Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies and the Convention on
Registration of Objects Launched into Outer Space, while
that vehicle is in flight, which is from the moment when all
external doors are closed on Earth following embarkation
until the moment when one such door is opened on Earth for
disembarkation or in the case of a forced landing, until the
competent authorities take over the responsibility for the
vehicle and for persons and property abroad.
(7) Any place outside the jurisdiction of any nation with
respect to an offense by or against a national of the United
States.
(8) To the extent permitted by international law, any
foreign vessel during a voyage having a scheduled departure
from or arrival in the United States with respect to an
offense committed by or against a national of the United
States./18
[emphasis added]
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United States territorial jurisdiction in the several States
party to the Constitution is articulated at Section 7(3). This
subsection must be read in the context of Article I, Section 8.17
of the Constitution supra, as articulated in the last portion of
the subsection -- forts, magazines, arsenals, dockyards and other
needful buildings -- and the post-Civil War reservation of lands
(1) for Native American Indian reservations, and (2)
unappropriated public lands such as national parks and forests
(Re., Oklahoma Constitution, Article I, Section 3, supra).
By demonstrating United States jurisdiction as specified at
18 U.S.C. 7, and providing the general context of United States
jurisdiction in the several States party to the Constitution as
it originates at Article I, Section 8.17 of the Constitution, it
is now possible to construct the statutory framework for
establishing United States jurisdiction and authority of any
given Government agency. This begins at 4 U.S.C. 71 & 72:
Sec. 71. Permanent seat of Government.
All that part of the territory of the United States included
within the present limits of the District of Columbia shall
be the permanent seat of government of the United States.
____________________
18 Portions of 18 U.S.C. 7(7) & (8) have been emphasized to
demonstrate the "national of the United States" as opposed
to the "citizen of the United States" as is used in these
subsections. In the international forum, the United States
is responsible to and for both the Fourteenth Amendment
"citizen of the United States" and the Citizen of one of the
several States party to the Constitution. Thus, the
inclusive term "national of the United States", as defined
at 8 U.S.C. 1101(a)(22), Immigration and Nationality Act
definitions, is employed in the 18 U.S.C. 7 jurisdiction
statute as Federal responsibility is inclusive rather than
exclusive.
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Sec. 72. Public offices; at seat of Government
All offices attached to the seat of government shall be
exercised in the District of Columbia, and not elsewhere,
except as otherwise expressly provided by law.
In the two statutes above, the trunk of authority splits
into the two main branches: United States Government is
territorially based, and authority may extend beyond the District
of Columbia only where law establishes the basis of operation.
Prior sections of this brief have treated both, with Internal
Revenue Code authority as law being extensively examined. The
interest here is territorial -- where does the United States have
judicial authority, particularly with respect to the Internal
Revenue Code and the codes of civil and criminal procedure,
Titles 18 & 28 of the United States Code?
So far as territorial authority is concerned, Article I,
Section 8.17 provides three elements for the United States to
secure jurisdiction in the several States party to the
Constitution: (1) land must be acquired in or from the State
where the United States seeks to establish jurisdiction, (2) the
legislature of the State must cede jurisdiction, and (3) Congress
must formally accept jurisdiction. These requirements are
specifically articulated in the last paragraph of 40 U.S.C. 255:
Notwithstanding any other provision of law, the obtaining of
exclusive jurisdiction in the United States over lands or
interests therein which have jurisdiction in the United
States over lands or interests therein which have been or
shall hereafter be acquired by it shall not be required;
but the head or other authorized officer of any department
or independent establishment or agency of the Government
may, in such cases and at such times as he may deem
desirable, accept or secure from the State in which any
lands or interests therein under his immediate jurisdiction,
custody, or control are situated, consent to or cession of
such jurisdiction, exclusive or partial, not theretofore
obtained, over any such lands or interests as he may deem
desirable and indicate acceptance of such jurisdiction on
behalf of the United States by filing a notice of such
acceptance with the Governor of such State or in such manner
as may be prescribed by the laws of the State where such
lands are situated. Unless or until the United States has
accepted jurisdiction over lands hereafter to be acquired as
aforesaid, it shall be acquired as aforesaid, it shall be
conclusively presumed that no such jurisdiction has been
accepted.
[emphasis added]
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United States territorial jurisdiction in the several States
party to the Constitution is not a matter of conjecture: When
challenged, it can and must be objectively and concretely proven.
If it isn't proven, "... it shall be conclusively presumed that
no such jurisdiction has been accepted."
There are numerous case determinations which support this
conclusion, two of which are cited here:
Standing cannot be inferred argumentatively from averments
in the pleadings, but rather must affirmatively appear in
the record; it is the burden of the party who seeks the
exercise of jurisdiction in his favor clearly to allege
facts demonstrating that he is a proper party to invoke
judicial resolution of the dispute; the parties must allege
facts essential to show jurisdiction, and if they fail to
make the necessary allegations, they have not standing.
FW/PBX, Inc. v. Dallas, 493 U.S. 215, 110 S.Ct. 596, 107
L.Ed.2d 603
Unlike most state courts of general jurisdiction, in which
jurisdiction is generally presumed unless contrary is
demonstrated, in federal district courts absence of
jurisdiction is generally presumed unless party invoking
federal jurisdiction clearly demonstrates that it exists.
State of La. v. Sprint Communications Co., 892 F.Supp. 145
Possibly the most definitive post-Civil War statement on the
subject of United States jurisdiction in the several States was
made in Fort Leavenworth Railway Co. v. Iowa, 114 U.S. 525 at 531
(1885). In the decision, the Supreme Court of the United States
held as follows:
Where lands are acquired without such consent [State
cession], the possession of the United States, unless
political jurisdiction be ceded to them in some other way,
is simply that of an ordinary proprietor. [added for
clarification]
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Per Article I, Section 8.17 of the Constitution, the United
States may secure jurisdiction in the several States only by
consent of the State legislature. The several States are
sovereign save as authority has been delegated to the United
States by the Constitution -- Separation of Powers Doctrine supra
-- so State law actually governs the matter of United States
jurisdiction beyond the colorable retention of lands in States
admitted to the Union since 1870. Where Oklahoma is concerned,
the Legislature has granted authority for the United States to
acquire jurisdiction over certain lands, but only for specific
purposes. Oklahoma cession laws are in Title 80 of the Oklahoma
Statutes, particularly in sections 1, 2 & 3, as follows:
Sec. 1. State's consent to acquisition of lands by United
States.
The consent of this state is hereby given, in accordance
with Section 8 of Article I of the Constitution of the
United States, to the acquisition by the United States, by
purchase, condemnation or otherwise, of any land in this
state required for sites for custom houses, post offices,
arsenals, forts, magazines, dockyards, military reserves,
irrigation or drainage projects, municipal water facilities
or for needful public buildings.
The consent of this state is also given to the acquisition
of land by the United States, by condemnation only with the
consent of the owner, or purchase, gift or exchange, for the
purpose of consolidation within existing boundaries of
national forests within this state.
B. Land outside of any incorporated municipality, which is
being considered for acquisition by the United States for
any other purpose, whether by fee or easement, may be
acquired only after consent of a majority of the Legislature
of the State of Oklahoma.
Sec. 2. Jurisdiction ceded to United States over lands
acquired
Exclusive jurisdiction in and over any lands so acquired by
the United States shall be, and the same is hereby ceded to
the United States for all purposes except the service upon
such sites of all civil and criminal process of the courts
of this state; but the jurisdiction so ceded shall continue
no longer than the United States shall own such lands.
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Sec. 3. Vesting of jurisdiction -- exemption of lands from
taxation
The jurisdiction ceded shall not vest until the United
States shall have acquired the title of said lands by
purchase, condemnation or otherwise; and so long as the
said lands shall remain the property of the United States,
when acquired as aforesaid, and no longer, the same shall be
and continue exempt and exonerated from all state, county
and municipal taxation, assessment, or other charges which
may be levied or imposed under the authority of this state.
Unless or until proof of jurisdiction is in record, in
accordance with criteria established in Article I, Section 8.17
of the Constitution, 40 U.S.C. 255, and 80 O.S. Sections 1, 2 &
3, United States judicial authority simply does not reach the
several States and the American people at large. This is further
verified by the general "venue" statute (jurisdiction venue)
governing jurisdiction of "district courts of the United States"
at 18 U.S.C. 3231:
Sec. 3231. District courts
The district courts of the United States shall have original
jurisdiction, exclusive of the courts of the States, of all
offenses against the laws of the United States.
Nothing in this title shall be held to take away or impair
the jurisdiction of the courts of the several States under
the laws thereof.
[emphasis added]
What appears to be an equivocation isn't, as the term
"State" differs from the term, "the several States" -- see
definition of "State", per Rule 54(c), Federal Rules of Criminal
Procedure supra. The term "State" used in the first sentence of
18 U.S.C. 3231 refers to the Federal territory, also known as a
"State", under Congress' Article IV, Section 3.2 legislative
jurisdiction, where the term "the several States" refers to the
several States party to the Constitution of the United States.
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The division of territorial jurisdiction between the United
States and the several States party to the Constitution follows
rules laid down in what is commonly referred to in the "Downes
Doctrine" (Downes v. Bidwell, 182 U.S. 244 (1901)): While the
Constitution protects and provides certain assurances to the
several States party to the Constitution of the United States,
and the American people who are Citizens of their respective
States, it does not extend outward. Which is to say, Congress
does more or less as Congress pleases within the scope of Article
IV, Section 3.2 territorial and maritime jurisdiction, but may
exercise only power delegated by the Constitution where the
several States party to the Constitution are concerned. This was
addressed to a limited degree in Hooven & Allison Co. v. Evatt
supra. Federal territories under Congress' Article IV, Section
3.2 legislative jurisdiction enjoy constitutional assurances only
as Congress elects to extend them -- Congress has plenary power
in Federal territories.
In the framework particularly of 4 U.S.C. 71 and 72, United
States territorial jurisdiction and standing in law must be
proven for any agency which supposes to prosecute causes in
courts of the United States when jurisdiction is challenged in
the several States party to the Constitution. If they aren't,
they are presumed not to exist.
There is no presumption in favor of jurisdiction, and the
basis for jurisdiction must be affirmatively show. Hanford v.
Davis, 16 S.Ct. 1051, 163 U.S. 273, 41 L.Ed. 157 (1896). In
principle, the exclusive legislative jurisdiction of the United
States (Federal government) is not addressed to subject matter,
but to specific geographical locations, U.S. v. Bevans, 16 U.S.
(3 Wheat.) 336 (1818). It is axiomatic that the prosecution must
always prove territorial jurisdiction over a crime, in order to
sustain a conviction therefor, U.S. v. Benson, 495 F.2d 475 at
481 (1974).
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A jurisdiction defect can never be waived by the Defendant,
nor acquiesced by the Defendant, in the absence of a positive
showing upon the record that jurisdiction was clearly and
unambiguously established.
Without proof of the requisite ownership or possession by
the United States, the crime has not been made out, U.S. v.
Watson, 80 F.Supp. 649 (1948, E.D. Va.). Further, the fact that a
state may have authorized the United States to exercise
jurisdiction is immaterial as United States jurisdiction cannot
legitimately be exercised without requisite acceptance by the
United States, see Adams v. United States, 319 U.S. 312, 63 S.Ct.
1122, 87 L.Ed. 1421 (1943).
Further, all courts of justice are duty-bound to take
judicial notice of the territorial extent of jurisdiction,
although those acts are not formally put into evidence, nor in
accord with pleadings, Jones v. U.S., 137 U.S. 202, 11 S.Ct. 80
(1890).
Where a federal court is without jurisdiction over the
offense, a judgment of conviction by the court and/or by the jury
is void ad initio, on its face, Bauman v. U.S., 156 F.2d 534 (5th
Cir. 1946).
Federal criminal jurisdiction is never presumed; it must
always be proven; and it can never be waived, U.S. v. Rogers, 23
Fed. 658 (USDC, W.D. Ark., 1885).
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The next problem where the instant matter is concerned is
that the United States District Court, as opposed to the district
court of the United States, is an Article IV territorial court of
the United States -- the United States District Court has
absolutely no Article III authority. Further, it is a legislative
rather than judicial court. It is foreign to the several States
party to the Constitution, and it effects bills of attainder when
and if it deprives the sovereign American people of life liberty
or property.
Fraud perpetrated by way of the United States District Court
is intentionally obscured, but reasonably easy to demonstrate by
way of statutes and court decisions. The best place to begin is
probably with definitions of United States courts at 28 U.S.C.
451:
Sec. 451. Definitions
As used in this title:
The term "court of the United States" includes the Supreme
Court of the United States, courts of appeals, district
courts constituted by chapter 5 of this title, including the
Court of International Trade and any court created by Act of
Congress the judges of which are entitled to hold office
during good behavior.
The term "district court" and "district court of the United
States" mean the courts constituted by chapter 5 of this
title.
The "United States District Court", as opposed to the
Article III "district court of the United States", is an
exclusively statutory creature, with legislative creation being
at 28 U.S.C. 132:
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Sec. 132. Creation and composition of district courts
(a) There shall be in each judicial district a district
court which shall be a court of record known as the United
States District Court for the district.
(b) Each district court shall consist of the district judge
or judges for the district in regular active service.
Justices or judges designated or assigned shall be competent
to sit as judges of the court.
(c) Except as otherwise provided by law, or rule or order of
court, the judicial power of a district court with respect
to any action, suit or proceeding may be exercised by a
single judge, who may preside alone or hold a regular or
special session of court at the same time other sessions are
held by other judges.
Historical and statutory notes relating to this section are
significant as they disclose that the statute merged authority
formerly in Title 48 of the United States Code, Territories and
Insular Possessions. This is significant as United States
territorial courts, as will be demonstrated, have absolutely no
true judicial capacity as contemplated by the "arising under"
clause at Article III, Section 2.1 and the Fourth, Fifth, Sixth,
and Seventh Amendments to the Constitution -- they operate
exclusively under admiralty or Civil Law rules. The notes,
reproduced in the 1996 West Publishing Co. edition of the Federal
Code of Civil Procedure, are as follows:
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
1948 Acts. Based on Title 28, U.S.C., 1940 ed., section 1,
and section 641 of Title 48, U.S.C., 1940 ed., Territories
and Insular Possessions (Acts Apr. 30, 1900, c. 339, Sec.
86, 31 Stat. 158; Mar. 3, 1909, c. 269, Sec. 1, 35 Stat.
838; Mar. 3, 1911, c. 231, Sec. 1, 36 Stat. 1087, which was
derived from R.S. Sections 551, 552; July 30, 1914, c. 216,
38 Stat 580; July 19, 1921, c. 42, Sec. 313, 42 Stat. 119;
Feb. 12, 1925, c. 220, 43 Stat. 890; Dec. 13, 1926, c. 6,
Sec. 1, 44 Stat. 19).
Section consolidates section 1 of Title 28, U.S.C., 1940
ed., and section 641 of Title 48, U.S.C., 1940 ed., with
changes in phraseology necessary to effect the
consolidation.
Subsection (c) is derived from section 641 of Title 48,
U.S.C., 1940 ed., which applied only to the Territory of
Hawaii. The revised section, by extending it to all
districts, merely recognizes established practice.
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Other portions of section 1 of Title 28, U.S.C., 1940 ed.,
are incorporated in sections 133 and 134 of this title. The
remainder of section 641 of Title 48, U.S.C., 1940 ed., is
incorporated in sections 91 and 133 of this title. 80th
Congress House Report No. 308.
1963 Acts. Senate Report No. 596, see 1963 U.S. Code Cong.
and Adm. News. p. 1105.
Continuation of Organization of Court
Section 2(b) of Act June 25, 1948, provided in part that the
provisions of this title as set out in section 1 of said Act
June 25, 1948, with respect to the organization of the
court, shall be construed as a continuation of existing law,
and the tenure of the judges, officers, and employees
thereof, and of the United States attorneys and marshals and
their deputies and assistants, in office on Sept. 1, 1948,
shall not be affected by its enactment but each of them
shall continue to serve in the same capacity under the
appropriate provisions of this title pursuant to his prior
appointment.
Article III "district courts of the United States" are
established for districts in each of the 50 Union states and the
District of Columbia by way of 28 U.S.C. 81-131, inclusive of
Section 81A, then the Article IV territorial courts, designated
as the "United States District Court", are created for each
district at 28 U.S.C. 132. The arrangement is somewhat on the
order of clear glass over a table-top map. The district court of
the United States has both United States territorial jurisdiction
with respect to cases that might be subject to United States
criminal (felony) prosecution, and cases at law or in equity
throughout the district for cases cognizable under the "arising
under" clause at Article III, Section 2.1 of the Constitution.
Additionally, the district court of the United States hears
diversity of citizenship cases under 28 U.S.C. 1652 in the
framework of common law indigenous to each of the several States
save Louisiana.
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Meanwhile, the United States District Court, while it has
Article IV territorial authority, is extremely limited, with what
little authority it has in the geographical United States limited
primarily to misdemeanor offenses on Federal lands under
supervision of the Bureau of Land Management and traffic and
similar offenses on military reservations.
The reason for such limited authority is to a certain extent
unraveled by definitions of United States judicial officers at
Rule 54(c) of the Federal Rules of Criminal Procedure:
Rule 54. Application and Exception
(c) Application of Terms. As used in these rules the
following terms have the designated meanings.
"Federal magistrate judge" means a United States magistrate
judge as defined in 28 U.S.C. 631-639, a judge of the United
States or another judge or judicial officer specifically
empowered by statute in force in any territory or
possession, the Commonwealth of Puerto Rico, or the District
of Columbia, to perform a function to which a particular
rule relates.
"Judge of the United States" includes a judge of a district
court, court of appeals, or the Supreme Court.
"Magistrate judge" includes a United States magistrate judge
as defined in 28 U.S.C. 631-639, a judge of the United
States, another judge or judicial officer specifically
empowered by statute in force in any territory or
possession, the Commonwealth of Puerto Rico, or the District
of Columbia, to perform a function to which a particular
rule relates, and a state or local judicial officer,
authorized by 18 U.S.C. 3041 to perform the functions
prescribed in Rules 3, 4, and 5.
The terminology hocus-pocus above might be best understood
by way of analogy: Suppose a physician has his professional
practice in a given community, he is a member of the local
country club, and he is a member of a local church. While he is
in his office, he is recognizable by the white coat he wears. At
the country club, he wears knit shirts and golf cleats. When he
attends church, he wears a suit and tie.
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What we see is one man who has several different capacities.
We've simply thrown attire in for visible effect. Any given
physician might wear jeans everywhere he goes -- I know attorneys
who nearly live in jeans. The distinction is really where he is
and what he is doing. Possibly the physician is on the planning
committee responsible for hosting a golf tournament at the
country club, and he sits on the board of trustees for the
church. But he doesn't practice medicine at the country club or
church or play golf at his office or church. Each capacity is
distinct from the other.
Judicial officers are somewhat the same within the framework
of service: The capacity they function in depends on the law of
any given case. When an Article III action at law goes before the
Supreme Court of the United States, justices and the court have
an Article III capacity at law or in equity. If an admiralty case
makes its way to the Supreme Court, the court sits as an
admiralty court. The Supreme Court of the United States may also
sit as the court of last resort to make administrative law
decisions or as the court of last resort for territorial courts
of the United States, the United States District Court system.
Thus, the term "magistrate judge" is inclusive -- all "judicial
officers" from the United States magistrate judge, who by lineage
is simply a national park commissioner, to justices on the
Supreme Court of the United States serve in magistrate capacities
when the law of the case that comes before them is statutory law
of the geographical United States under Congress' Article IV,
Section 3.2 legislative jurisdiction.
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The magistrate judge, regardless of his position in the
United States court system, operates in a ministerial rather than
judicial capacity. Put another way, he is a legislative rather
than judicial officer. The general rule of practice is this: Any
judicial officer can step down, but not up. Which is to say, a
United States magistrate judge is limited to his Article IV
legislative capacity where a Supreme Court justice may preside
over Article III or Article IV cases. Legislative court judges do
not enjoy Article III guarantees; "inherently judicial" tasks
must be performed by judges deriving power under Article III. See
particularly, U.S. v. Sanders, 641 F.2d 659 (1981), cert. den.
101 S.Ct. 3055, 452 U.S. 918, 69 L.Ed. 422.
This is the reason decisions issued by the Supreme Court of
the United States have the appearance of inconsistency. Decisions
are made in the framework of law that comes before the court, and
as a matter of practice, those who preside in the courts will not
depart the law of the case. The practice is fundamentally
dishonest as those dragged into Federal courts are rarely if ever
informed of the nature of the case or what rights they have with
respect to electing common law remedies. The alleged merging of
law, equity and admiralty (see Rule 1, Federal Rules of Civil
Procedure) is a virtual impossibility: The English-American
lineage common law, based on "the laws of Nature and of God," is
distinct from and contrary to the "positive law" system which for
all practical purposes duplicates Roman Civil Law in which the
State rather than the People is presumed to be sovereign.
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English-American heritage common law is simply natural law
as proven in the lineage over the last thousand or so years. It
is based on physical and moral law, neither of which man can
author or amend, with physical law operating in the framework of
cause and effect, and moral in the framework of cause and
consequence. Positive law rests on written statutes which
originate with man. And as proven throughout history, man-made
law nearly always favors one person or class of people above
others. The classic example of positive or civil law is the Royal
Statute promulgated by Darius in the book of Daniel, Chapter 6.
After the Medes and Persians over-threw Belshazzar and his
kingdom, Darius established the provisional government, naming
Daniel as first president. Those opposed to Daniel conspired
against him. In order to bring the prophet down, they convinced
Darius to sign a Royal Statute which prohibited anyone in the
kingdom from petitioning any god or man other than the king for a
period of 30 days. No doubt Darius saw the rationale behind the
statute as simply being a means to solidify his position and
elevate the throne. But the first rattle out of the box, those
party to the conspiracy accused Daniel because of Daniel's
continuing practice of prayer to Jehovah God.
At Daniel 6: 8, the effect of a Royal Statute is
articulated: "Now, O king, establish the decree, and sign the
writing, that it be not changed, according to the law of the
Medes and Persians, which altereth not."
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Once the statute was endorsed, Darius was obliged to carry
it out. He was compelled to thrown Daniel into the lion's den.
Natural law is universal. It works individually on all
people the same. Little boys who jump from trees risk adverse
effects -- gravity cares not whether those who ignore the
universal force are paupers or kings.
The intent of American founders, and the substance of the
"arising under" clause at Article III, Section 2.1 and the
Fourth, Fifth, Sixth, and Seventh Amendments to the Constitution,
is articulated in Article II of the Ordinance of 1787: The
Northwest Territorial Government:
The inhabitants of the said territory shall always be
entitled to the benefits of the writs of habeas corpus, and
of the trial by jury; of a proportionate representation of
the people in the legislature, and of judicial proceedings
according to the course of the common law ... No man shall
be deprived of his liberty or property, but by the judgment
of his peers, or the law of the land...
The sovereign American people are not subject to Civil Law,
or what is currently described as "positive law", and admiralty
courts of the United States. In our system, the people are
sovereign, not government. This order of power was articulated by
American founders in the Declaration of Independence: First they
established the highest authority, being, "... the Laws of Nature
and of Nature's God," then they made the proclamation of man's
relationship to God:
We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness ....
Only then was government addressed:
... That to secure these rights, Governments are instituted
among Men, deriving their just powers from the consent of
the governed...
Governments exist for the purpose of securing unalienable
rights vested in man by God himself -- unalienable rights are
antecedent to government, they are not conferred by government.
Civil rights originate with government, and that which government
grants, government can deny. Thus, the system of positive law
which deceptively implements Civil Law, Civil Law being of a
common lineage and kind with maritime law (admiralty), elevates
man-made law over "the laws of Nature and Nature's God."
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Just as the Royal Statute executed against Daniel was
devised to serve the ends of ambitious men, positive law
invariably accommodates the interests of entrenched powers at the
expense of those who are not postured to benefit from the
underlying scheme -- integrity of the system is compromised.
Those who perpetrate the fraud quite literally are in rebellion
against man, Nature and God.
On the civil side, the common law is hidden but preserved,
principally in Rules 38 through 42 of the Federal Rules of Civil
Procedure. These rules preserve the right to trial by jury, with
such trial being in accordance with rules of the common law. The
method of getting to the common law remedy was addressed in
Bennet v. Butterworth, 11 How. 669:
The common law has been adopted ... but form and rules of
pleading in common law cases have been abolished, and the
parties are at liberty to set out their respective claims
and defenses in any form that will bring them before the
court.
As there is no distinction ins (common law) courts between
cases in law and equity ... (such) practice must not be
understood as confounding the principles of law and equity
(civil), nor as authorizing legal and equitable claims to be
blended together in one suit ... (i.e. one form of action).
The constitution of the United States, creating and defining
the judicial Power of the general Government, establishes
this distinction between law and equity, and a party who
claims legal title must proceed at law...
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Likewise, Congress cannot abridge Fourth, Fifth, Sixth and
Seventh Amendment and Article III, Section 2.1 "arising under"
clause due process assurances in criminal matters by statute. Yet
that is precisely what the United States District Court attempts:
The magistrate judge, under admiralty-Civil Law rules, assumes
complete power to determine law, thereby usurping authority not
delegated by the Constitution, and in his legislative rather than
judicial capacity, effects bills of attainder any time he
deprives any of the sovereign American people of life, liberty or
property -- bills of attainder are strictly prohibited by Article
I, Sections 9.3 & 10.1 of the Constitution.
Identification of "principals" in the United States Code of
Criminal Procedure (18 U.S.C. 2) provides a certain amount of
revelation so far as application of the United States Code of
Criminal Procedure is concerned:
Sec. 2 Principals
(a) Whoever commits an offense against the United States or
aids, abets, counsel, commands, induces or procures its
commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense
against the United States, is punishable as a principal.
[emphasis added]
Article I, Section 8.15 stipulates, "[The Congress shall
have Power] To provide for calling forth the Militia to execute
the Laws of the Union..," and Article III, Section 2.1 specifies
cases in law and equity, "... arising under this Constitution,
the Laws of the United States, and Treaties made ...." [emphasis
added]. These two clauses must be interpreted together: United
States judicial authority under the "arising under" clause at
Article III, Section 2.1 of the Constitution, if and when the
United States has authority to extend judicial authority into the
several States party to the Constitution, must be premised on
general application laws which might be construed as "Laws of the
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Union" -- those laws which fall within the scope of Congress'
delegated powers respecting the several States and the American
people at large. The United States, as a self-interested entity,
cannot reach beyond Congress' Article IV, Section 3.2 legislative
jurisdiction, whether in civil or criminal matters -- the United
States cannot be the principal of interest so far as the general
population is concerned where the self-interested entity known as
the United States under Congress' Article IV, Section 3.2
legislative jurisdiction is the principal of interest save by way
of process common to the several States party to the
Constitution. In this forum, the United States is foreign to the
several States party to the Constitution in the same sense each
of the several States is foreign to all the rest. In this
capacity, Congress does not serve in the role of general
government for the several States, but more on the order of State
government, exercising plenary power in accordance with
provisions of Articles I, Section 8.17 and IV, Section 3.2.
The "United States" is also the principal of interest so far
as the role of plaintiff or defendant at 28 U.S.C. 1345 & 1346.
Provisions at Section 1345 are as follows:
Sec. 1345. United States as plaintiff
Except as otherwise provided by Act of Congress, the
district courts shall have original jurisdiction of all
civil actions, suits or proceedings commenced by the United
States, or by an agency or officer thereof expressly
authorized to sue by Act of Congress.
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Two elements of this statute are important, as is the case
for 18 U.S.C. 2: First, the "United States" in its self-
interested or geographical capacity is the principal of interest.
There is no mention or suggestion of Article I, Section 8.15 or
Article III, Section 2.1 "arising under" clause authority
pertaining to "Laws of the Union", and the "United States", not
the "United States of America", is the authorized principal of
interest. Save within United States jurisdiction secured in
accordance with Article IV, Section 8.17 of the Constitution and
40 U.S.C. 255, authority of district courts of the United States
operating under positive law provisions in the framework
admiralty-Civil Law rules are strictly limited to jurisdiction
prescribed at 18 U.S.C. 7(3) -- United States Civil Law authority
does not reach the several States party to the Constitution and
the American people at large.
The matter of principal of interest will be addressed infra
as the "United States of America", the plaintiff where matters at
hand are concerned, is not authorized as principal of interest in
Titles 18 or 28 of the United States Code, or the Internal
Revenue Code. It will be demonstrated that the "United States of
America" is either (1) the executive branch in its admiralty
capacity maintained over United States territories (Puerto Rico &
the Virgin Islands), or (2) nominee for the "Central Authority"
or "Competent Authority" (28 CFR, Parts 0.49 & 0.64-1). In either
case, the entity "United States of America" is a foreign
principal so far as the several States party to the Constitution
and the Constitution of the United States are concerned.
The focus now comes to examine where the United States Code
of Criminal Procedure (Title 18, U.S.C.), is applicable. At 18
U.S.C. 23, court of the United States is defined:
Sec. 23. Court of the United States defined
As used in this title, except where otherwise expressly
provided the term "court of the United States" includes the
District Court of Guam, the District Court of the Northern
Mariana Islands, and the District Court of the Virgin
Islands.
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At Rule 54(a), Federal Rules of Criminal Procedure,
application of the Rules of Criminal Procedure is specified as
follows:
Rule 54. Application and Exception.
(a) Courts. These rules apply to all criminal proceedings in
the United States District Courts; in the District of Guam;
in the District Court for the Northern Marian Islands,
except as otherwise provided in articles IV and V of the
covenant provided by the Act of March 24, 1976 (90 Stat.
263); in the District Court of the Virgin Islands; and
(except as otherwise provided in the Canal Zone) in the
United States District Court for the District of the Canal
Zone; in the United States Courts of Appeals; and in the
Supreme Court of the United States; except that the
prosecution of offenses in the District Court of the Virgin
Islands shall be by indictment or information as otherwise
provided by law.
Both 18 U.S.C. 23 and Rule 54(a), F.R.Cr.P., are specific
with respect to where Title 18 of the United States Code and
Federal Rules of Criminal Procedure are applicable. In all
instances, examples are in off-shore United States territories
such as the Virgin Islands, Puerto Rico, the Northern Mariana
Islands, etc., exclusive of the several States party to the
Constitution. In light of the Rule 54(c) application for the term
"State" ("'State' includes District of Columbia, Puerto Rico,
territory and insular possession."), Title 18 authority might be
applicable in the District of Columbia. At any rate, application
of the term "Act of Congress" at Rule 54(c) is restrictive --
"'Act of Congress' includes any act of Congress locally
applicable to and in force in the District of Columbia, in Puerto
Rico, in a territory or in an insular possession."
Rule 54(b) governing proceedings is made more intelligible
in light of the foregoing:
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(b) Proceedings.
(1) Removal Proceedings. These rules apply to criminal
prosecution removed to the United States district courts
from state courts and govern all procedure after removal,
except that dismissal by the attorney for the prosecution
shall be governed by state law.
(2) Offenses Outside a District or State.
These rules apply to proceedings for offenses committed upon
the high seas or elsewhere out of the jurisdiction of any
particular state or district, except that such proceedings
may be had in any district authorized by 18 U.S.C. 3238.
(3) Peace Bonds. These rules do not alter the power of
judges of the United States or of United States magistrate
judges to hold to security of the peace and for good
behavior under Revised Statutes, Sec. 4069, 50 U.S.C. 23,
but in such cases the procedure shall conform to these rules
so far as they are applicable.
(4) Proceedings Before United States Magistrate Judges.
Proceedings involving misdemeanor offenses are governed by
Rule 58.
(5) Other Proceedings. These rules are not applicable to
extradition and rendition of fugitives; civil forfeiture of
property for violation of a statute of the United States;
or the collection of fines and penalties. Except as provided
in Rule 20(d) they do not apply to proceedings under 18
U.S.C. Chapter 403 -- Juvenile Delinquency -- so far as they
are inconsistent with that chapter. They do not apply to
summary trials of offenses against the navigation laws under
Revised, States Sections 4300-4305, 33 U.S.C. 391-396, or to
proceedings involving disputes between seamen under Revised
Statutes, Sections 4079-4081, as amended, 22 U.S.C. 256-258,
or to proceedings for fishery offenses under the Act of June
28, 1937, c. 392, 50 Stat. 325-327, 16 U.S.C. 772-772i, or
to proceedings against a witness in a foreign country under
28 U.S.C. 1784.
[emphasis added]
Rule 54(b)(2) prescribes process via 18 U.S.C. 3238 for
offenses where the suspect does not reside in the geographical
United States:
Sec. 3238. Offenses not committed in any district
The trial of all offenses begun or committed upon the high
seas, or elsewhere out of the jurisdiction of any particular
State or district, shall be in the district in which the
offender, or any one or two or more joint offenders, is
arrested or is brought; but if such offender or offenders
are not so arrested or brought into any district, an
indictment or information may be filed in the district of
the last known residence of the offender or of any one or
two or more joint offenders, or if no such residence is
known the indictment or information may be filed in the
District of Columbia.
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These statutes and rules are all territorial and maritime,
and by application, they apply in United States territories
outside and exclusive of the several States party to the
Constitution. Momentarily we will examine Rule 54(b)(4), which
relates to military reservations, national parks, etc., in the
several States, but while in the neighborhood, it is convenient
to examine the evolution of 18 U.S.C. 3241 to demonstrate
district courts of the United States and United States District
Courts, and how the statute has evolved in light of Alaska being
admitted to the Union. This statute in particular demonstrates
the geographical United States in light of Congress' Article IV,
Section 3.2 legislative jurisdiction:
Sec. 3241. Jurisdiction of offenses under certain sections.
The United States District Court for the Canal Zone and the
District Court of the Virgin Islands shall have jurisdiction
of offenses under the laws of the United States, not locally
inapplicable, committed within the territorial jurisdiction
of such courts, and jurisdiction, concurrently with the
district courts of the United States, of offenses against
the laws of the United States committed upon the high seas.
The most recent amendment of this statute was July 7, 1958,
Pub. L. 85-508, Sec. 12(i) , 72 Stat. 348. At that time, the
United States District Court for Alaska was removed from the
statute due to Alaska joining the Union of several States
party to the Constitution. Prior to that, the United States
District Court for the Philippines was omitted due to the
Philippines becoming an independent commonwealth. This is
disclosed in historic and statutory notes, reproduced in
relative part:
The phrase "the several courts of the first instance in the
Philippine Islands" in section 574 of Title 18, U.S.C., 1940
ed., was omitted as obsolete in view of the independence of
the Commonwealth of the Philippines effective July 4, 1946.
Amendment by Pub.L. 85-508 effective Jan. 3, 1959 upon
admission of Alaska into the Union pursuant to Proc. No.
3269, Jan. 5, 1959, 24 F.R. 81, 73 Stat. e16, as required by
section 1 of 8(c) of Pub.L. 85-508, see notes set out under
section 81A of Title 28, Judiciary and Judicial Procedure
and proceeding section 21 of Title 48, Territories and
Insular Possessions.
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The transition between the Alaska territorial court to a
district court of the United States (28 U.S.C. 81A) and a United
States District Court (28 U.S.C. 132), was finalized so far as
the United States District Court is concerned via Executive Order
No. 10867, Feb. 20, 1960, 25 F.R. 1584:
ASSUMPTION OF FUNCTIONS BY UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
Whereas the act of July 7, 1958, 72 Stat. 339 [set out as a
note preceding section 21 of Title 48, Territories and
Insular Possessions], relating to the admission of the State
of Alaska into the Union, provides that the United States
District Court for the Territory of Alaska shall continue to
function as theretofore for a period of three years after
the effective date of that act, unless the President, by
Executive order, shall sooner proclaim that the United
States District Court for the District of Alaska,
established in accordance with the provisions of that act,
is prepared to assume the functions imposed upon it; and
Whereas that act further provides that its provisions
relating to the termination of the jurisdiction of the
District Court for the Territory of Alaska, the continuation
of suits, the succession of courts, and the satisfaction of
the rights of litigants in suits before such courts shall
not be effective until the expiration of the above-mentioned
three-year period or until such Executive order is issued;
and that the tenure of the judges, the United States
Attorneys, Marshals, and other officers of the United States
District Court for the Territory of Alaska shall terminate
at such time as that court shall cease to function; and
Whereas, I have appointed, by and with the advice and
consent of the Senate, and commissioned the Honorable Walter
N. Hodge to be United States District Judge for the District
of Alaska, and he has taken his oath of office; and
Whereas the United States District Court for the District of
Alaska is now prepared to assume the functions imposed upon
it:
Now, therefore, by virtue of the authority vested in me by
section 18 of the said act of July 7, 1958 [set out as a
note under section], I hereby proclaim that the United
States District Court for the District of Alaska is prepared
to assume the functions imposed upon it. Accordingly, the
jurisdiction of the District Court for the Territory of
Alaska and the tenure of the judges, the United States
Attorneys, Marshals, and other officers of the court are no
terminated.
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Where transfer of cases was concerned, those cognizable in
the territorial court as local offenses were transferred to the
"State court of Alaska" (Pub.L. 85-508, Section 15), while those
cognizable as Federal cases were transferred to the United States
District Court for the District of Alaska. E.O. 10867
demonstrates the division of cases, which of necessity had to
follow lines of State and United States territorial jurisdiction.
At this juncture, it is prudent to examine the character of
the United States District Court, as opposed to the district
court of the United States, as it has been addressed in judicial
decisions. The earliest commentary presently known was written by
Chief Justice Marshall in 1828:
These [territorial] courts then, are not Constitutional
courts, in which the judicial power conferred by the
Constitution on the general government can be deposited.
They are incapable of receiving it. They are legislative
courts, created in virtue of the general rights of
sovereignty which exists in the government, or in virtue of
that clause which enables Congress to make all needful rules
and regulations, respecting the territory belonging to the
United States. The jurisdiction with which they are
invested, is not a part of that judicial power which is
defined in the 3d article of the Constitution, but is
conferred by Congress, in the execution of those general
powers which that body possesses over the territories of the
United States. Although admiralty jurisdiction can be
exercised in the States in those courts only which are
established in pursuance of the 3d article of the
Constitution, the same limitation does not extend to the
territories. In legislating for them, Congress exercises the
combined powers of the general and of the State government.
American Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511
(1828).
[emphasis added]
A more contemporary commentary on the character of the
United States District Court was written in 1921:
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The United States District Court is not a true United States
court established under Article III of the Constitution to
administer the judicial power of the United States therein
conveyed. It is created by virtue of the sovereign
congressional faculty, granted under Article IV, Section 3,
of that instrument, of making all needful rules and
regulations respecting the territory belonging to the United
States. The resemblance of its jurisdiction to that of true
United States courts in offering an opportunity to
nonresidents of resorting to a tribunal not subject to local
influence, does not change its character as a mere
territorial court.
[Balzac v. Porto Rico, 258 U.S. 298 at 312 (1921)]
[emphasis added]
Clearly, the "United States District Court" (1) is an
Article IV territorial court of the United States, (2) which is a
legislative rather than judicial court, (3) it operates under
admiralty-Civil Law rules, (4) it may operate only in the
framework prescribed by statute, the framework including
jurisdiction as well as matters it might consider, and (5) United
States admiralty jurisdiction may not be exercised in the several
States party to the Constitution by Article IV territorial courts
of the United States, the United States District Courts. Aside
from stipulations in decisions above, these conclusions are
verified by several other judicial decisions:
Not only did the promulgating order use the term District
Courts of the United States in its historic and proper
sense, but the omission of provisions for the application of
the rules to the territorial courts and other courts
mentioned in the authorizing act clearly shows the
limitation that was intended. Mookini et al. v. U.S., 303
U.S. 201
The words "district court of the United States" commonly
describe constitutional courts created under Article III of
the Constitution, not the legislative courts which have long
been the courts of the Territories. International
Longshoremen's and Warehousemen's Union et al. v. Juneau
Spruce Corp., 342 U.S. 237 (1952)
The phrase "court of the United States", without more, means
solely courts created by Congress under Article III of the
Constitution and not territorial courts. International
Longshoremen's and Warehousemen's Union et al. v. Wirtz, 170
F.2d 183 (Ninth Cir., 1948, headnote 1, see also,
definitions at 28 U.S.C. 451 supra)
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United States District Courts have only such jurisdiction as
is conferred by an Act of Congress under the Constitution.
(U.S.C.A. Const. Art. 3, Sec. 2; 28 U.S.C.A. 1344)
The United States District Court has only such jurisdiction
as Congress confers. Eastern Metals Corp. v. Martin, 191
F.Supp 245 (D.C.N.Y. 1960)
Where statute authorized Supreme Court to prescribe Criminal
Appeals Rules in District Courts of the United States
including named territorial courts, omission in rules when
drafted of reference to District Court of Hawaii, and
certain other of the named courts, indicated that Criminal
Appeals Rules were not to apply to those [latter] courts.
Mookini et al. v. U.S., 303 U.S. 201, headnote 4, Courts.
For context where matters at hand are concerned, it must be
remembered that the President, via E.O. No. 10289 (1951),
delegated certain responsibilities to the Secretary of the
Treasury, with responsibilities so far as United States revenue
laws are concerned relating to customs laws, and that by way of
T.D.O. 150-42 (1956), the Secretary re-delegated responsibility
to the Commissioner of Internal Revenue, with geographical
application of the order pertaining to United States off-shore
territories (Puerto Rico, the Virgin Islands, the Canal Zone,
etc.) and United States maritime jurisdiction. The President's
authority to establish revenue districts is delegated to the
Secretary under E.O. 10289 (see 26 CFR, Part 301.7621-1), so
jurisdiction of the Internal Revenue Service, by way of this line
of authority, is limited to United States off-shore territories
under Congress' Article IV, Section 3.2 legislative jurisdiction,
and United States maritime jurisdiction.
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This authority cannot be unilaterally expanded to the
several States party to the Constitution by judicial edict --
executive and judicial branches of government do not have
legislative powers -- so when the Internal Revenue Service is the
principal of interest, by whatever name, the court convened to
hear causes must presume authority arising from jurisdiction of
the principal of interest. This conclusion corresponds with
authority cited at 18 U.S.C. 23 and Rule 54(a), F.R.Cr.P: In the
first instance, the District Court of Guam, the District Court
for the Northern Mariana Islands, and the District Court of the
Virgin Islands; in the second, United States District Courts for
Guam, the Northern Mariana Islands, the Virgin Islands, and the
Canal Zone.
Advisory Committee Notes for 1972 Proposed Rules set out
following Rule 1101, Federal Rules of Evidence, shed more light
on the subject:
ADVISORY COMMITTEE NOTES
1972 Proposed Rules
Note of Subdivision (a). The various enabling acts contain
differences in phraseology in their descriptions of the
courts over which the Supreme Court's power to make rules of
practice and procedure extends. The act concerning civil
actions, as amended in 1966, refers to "the district courts
*** of the United States in civil actions, including
admiralty and maritime cases. ***" 28 U.S.C. 2072, Pub.L.
89-773, Sec. 1, 80 Stat. 1323. The bankruptcy authorization
is for rules of practice and procedure "under the Bankruptcy
Act." 28 U.S.C. 2075, Pub. L. 88-623, Sec. 1, 78 Stat. 1001.
The Bankruptcy Act in turn creates bankruptcy courts of "the
United States district courts and the district courts of the
Territories and possessions to which this title is or may
hereafter be applicable." 11 U.S.C. 1(10), 11(a). The
provision as to criminal rules up to and including verdicts
applies to "criminal cases and proceedings to punish for
criminal contempt of court in the United States district
courts, in the district courts for the districts of the
Canal Zone and Virgin Islands, in the Supreme Court of
Puerto Rico, and in proceedings before United States
magistrates." 18 U.S.C. 3771.
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These various provisions do not in terms describe the same
courts. In congressional usage the phrase "district courts
of the United States," without further qualification,
traditionally has included the district courts established
by Congress in the states under Article III of the
Constitution, which are "constitutional" courts, and has not
included the territorial courts under Article IV, Section 3,
clause 2, which are "legislative" courts. Hornbuckle v.
Toombs, 85 U.S. 648, 21 L.Ed. 966 (1873). However, any doubt
as to the inclusion of the District Court for the District
of Columbia in the phrase is laid to rest by the provisions
of the Judicial Code constituting the judicial districts, 28
U.S.C. 81 et seq., creating district courts therein, id.
Sec. 132, and specifically providing that the term "district
court of the United States" means the court so constituted.
Id. Sec. 451. The District of Columbia is included. Id. Sec.
88. Moreover, when these provisions were enacted, reference
to the District of Columbia was deleted from the original
civil rules enabling act. 28 U.S.C. 2072. Likewise Puerto
Rico is made a district, with a district court, and included
in the term. Id. Sec. 119. The question is simply one of the
extent of the authority conferred by Congress. With respect
to civil rules it seems clearly to include the district
courts in the statutes, the District Court for the District
of Columbia, and the District Court for the District of
Puerto Rico.
Now to the United States District Court created under
authority of 28 U.S.C. 132 for any given United States judicial
district in the several States party to the Constitution: These
courts, such as the United States District Court for the Northern
District of Oklahoma, are not specifically named at 18 U.S.C. 23
or in Rule 54(a), F.R.Cr.P., as having general authority to
enforce the United States Code of Criminal Procedure, Title 18 of
the United States Code, and general authority over civil matters
where the United States might be plaintiff or defendant, is
vested in the Article III "district court of the United States",
not the Article IV "United States District Court". However, Rule
54(b)(4) F.R.Cr.P. opens the door to authority of any given
United States District Court located in the Union of several
States party to the Constitution:
(4) Proceedings Before United States Magistrate Judges.
Proceedings involving misdemeanors and other petty offenses
are governed by Rule 58.
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The legislative office of United States magistrate judge is
created and governed by 28 U.S.C. 631-639. It isn't necessary in
this context to treat all aspects of the office, but it is useful
to do a certain amount examination. First, historical and
statutory notes for Section 631:
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
1948 Acts. [cites omitted]
Section consolidates section 526 and a portion of 527, both
of Title 28 U.S.C., 1940 ed., with provisions of section 27,
66, 80e, 100, 117e, 129, 172, 196e, 204e, 256d, 395e, 503c-
5, 403h-5, 404c-5 and 408m of Title 16, U.S.C., 1940 ed.,
and provisions of section 863 of Title 48, Territories and
Insular Possessions, relating to appointment of United
States commissioners. For other provisions of said section,
see Distribution Table.
Some of the provisions of section 863 of Title 48, U.S.C.,
1940 ed., Territories and Insular Possessions were retained
in that title.
The provision of section 395 e, 403c-5, 404c-5, and 408m of
Title 16, U.S.C., 1940 ed., for appointment of the Park
Commissioner in the Hawaii National Park, Shenandoah
National Park, Great Smoky Mountains National Park, Mammoth
Cave National Park and Isle Royal National Park upon "the
recommendation of the Secretary of the Interior" was omitted
as inconsistent not only with other provisions of this title
but with other statutes applicable to other national parks.
All such park commissioners are United States commissioners
and the revision of these sections makes possible uniformity
and consistency in administrative matters concerning such
commissioners...
"Administrative Office of the United States Courts" were
substituted for "Attorney General" in section 526 of Title
28, U.S.C., 1940 ed., in view of the general supervision by
the Director over clerks and commissioners under section 601
of this title ....
[emphasis added]
The few paragraphs above confirm several important matters:
First, the office of the United States magistrate judge evolved
from the legislatively created and administratively-appointed
position of "national park commissioner." Since 1948, the name
has been changed to "United States magistrate judge", but the
nature and scope of the position hasn't materially changed.
References to Title 48 of the United States Code, Territories and
Insular Possessions, is important as the United States magistrate
judge has expanded authority in United States territories and
insular possessions.
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But his authority in the several States party to the
Constitution, both with respect to the type of cases he may hear
and his territorial jurisdiction, remain essentially the same in
1997 as in 1948. As will be seen, infra, he may hear only petty
and misdemeanor offenses committed on United States military
reservations, national parks, etc., he is not authorized even to
ask for or take pleas in felony matters. He may sit as judge for
the trial of petty offenses and misdemeanors only where the
defendant signs written consent.
The historical note above also mentions the change from the
"Attorney General" to "Administrative Office of the United States
Courts".
The office of the Department of Justice was created in the
early 1870's, with the Attorney General as head, by consolidating
litigation and prosecution authority of most other Government
administrative departments, with the Department of the Interior
being possibly the most important. To that point, the office of
the Attorney General was a cabinet office, but there was no
Department of Justice -- each of the various government
departments handled its own litigation and criminal prosecution.
However, as Congress increasingly transferred responsibilities to
the executive branch, administrative departments such as the
Department of Justice concentrated authority to the point
legislative and executive branches of Federal government work
somewhat on the order of hand-in-glove rather than as distinct
components where Congress maintains responsibility for carrying
out constitutionally delegated responsibilities.
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For example, Article I, Section 8.17 of the Constitution
stipulates that Congress is responsible for accepting
jurisdiction over land ceded to the United States by any given
State, but at 4 U.S.C. 103, Congress by statute authorized the
Present to make such purchases, then the President in turn
delegated authority to others under authority at 3 U.S.C. 301,
and at 40 U.S.C. 255, Congress accommodated this transfer of
constitutionally delegated authority by authorizing any
designated executive officer to accept jurisdiction over lands
purchased for United States use.
The point of the note above is simply that the
Administrative Office of the United States Courts is an
administrative rather than judicial office -- it has an Article
IV, rather than Article III, role.
Further important information is disclosed under Section 636
relating to what court the United States magistrate judge serves
and the powers he has, reproduced in relative part:
Sec. 636. Jurisdiction, powers, and temporary assignment.
(a) Each United States magistrate serving under this chapter
shall have within the territorial jurisdiction prescribed by
his appointment --
(1) all powers and duties conferred or imposed upon United
States commissioners by law or by the Rules of Criminal
Procedure for the United States District Courts;
(3) the power to conduct trials under section 3401, title
18, United States Code, in conformity with and subject to
the limitations of that section, and
(4) the power to enter a sentence for a misdemeanor or
infraction with the consent of the parties ....
[emphasis added]
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The United States magistrate judge serves in the United
States District Court, not the district court of the United
States. In other words, the Article IV United States national
park commissioner, a/k/a United States magistrate judge, serves
in a legislative capacity in a legislative court, he cannot, by
virtue of his source of authority, serve in an Article III
capacity. (U.S. v. Sanders supra)
As noted earlier, the United States magistrate judge may
preside over the trial of petty and misdemeanor offenses only
with written consent of the defendant -- the U.S. attorney may
also disqualify United States magistrate judges under certain
conditions.
The next important disclosure is at 28 U.S.C. 638(c):
(c) The Director [of the Administrative Office of the United
States Courts] shall furnish to each United States
magistrate appointed under this chapter an official
impression seal in a form prescribed by the conference. Each
such officer shall affix his seal to every jurat or
certificate of his official acts without fee. [added for
clarification]
Seals of United States magistrate judges are distinct and
separate from seals of United States District Courts or district
courts of the United States. If the personally assigned seal
isn't affixed to documents issued under signatures of United
States magistrate judges, the instrument isn't worth the paper
it's written on -- thus sayeth Congress! When and if United
States magistrate judges fail and refuse to affix personal seals
to documents they endorse, they have broken the law.
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Now we go to 18 U.S.C. 3401, implicitly referred to in Rule
54(b)(4). This section governs trial by United States magistrate
judges. It is necessary to produce only Section 3401(a):
Sec. 3401. Misdemeanors; application of probation laws
(a) When specially designated to exercise such jurisdiction
by the district court or courts he serves, any United States
magistrate shall have jurisdiction to try persons accused
of, and sentence persons convicted of, misdemeanors
committed within that judicial district.
At 28 U.S.C. 638(a)(1), the United States magistrate judge
is designated for service in the United States District Court. At
18 U.S.C. 3401(a), it is clear that the United States magistrate
judge is under supervision of the district court judge. In other
words, the United States magistrate judge may be appointed by and
remain under supervision of judicial officers in the Article III
district court of the United States, but he serves in the Article
IV United States District Court -- he is an Article IV
commissioner-magistrate in an Article IV court empowered to hear
only petty and misdemeanor offenses. Because of his origins as an
Article IV legislative officer, he cannot under any circumstance
function in an Article III capacity any more than an Article IV
United States District Court can function as an Article III court
of the United States. Therefore, any and everything a United
States magistrate judge touches proceeds under Congress' Article
IV, Section 3.2 legislative jurisdiction in the geographical
United States to the exclusion of Congress' Article I delegated
authority and Article III United States judicial authority -- the
United States magistrate judge is as foreign to the several
States party to the Constitution as Kansas judicial officers are
to Oklahoma and Oklahoma to New Mexico, Colorado, Arkansas or any
of the other surrounding Union states. He has absolutely no
authority beyond territorial jurisdiction of the geographical
United States under Congress' Article IV, Section 3.2 legislative
jurisdiction.
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Because the United States magistrate system is legislative
rather than judicial, functioning under supervision of an
executive administrative office, exercise of authority must
comply with provisions of the Federal Register Act (44 U.S.C.
1501 et seq.) Which is to say, general application regulations
must be published in the Federal Register before authority of the
United States magistrate judge extends to anyone. It so happens
that the Federal Magistrate System has been implemented by the
Defense Logistics Agency (Department of Defense), 32 CFR, Part
1290.1, and the Bureau of Land Management, 43 CFR, Part 9260.0-1.
Regulations governing 18 U.S.C. 3401 are published by the
Attorney General at 28 CFR, Part 52.01. Authority under 32 CFR,
Part 1290.1 extends to traffic management and the like on
military installations; authority under 43 CFR, Part 9260.0-1
relates to national parks and the like under jurisdiction of the
Bureau of Land Management. In the judicial world of the United
States magistrate judge, people blocking fire lanes and harassing
free-running burrows are major events. The governing regulation
at 28 CFR, Part 52.01 simply re-states provisions of 18 U.S.C.
3401 -- the United States magistrate judge may hear misdemeanor
offenses and actually try cases with written consent of the
defendant. The United States attorney may also object to a United
States magistrate judge hearing a case under certain conditions.
Limits on authority of the United States magistrate judge are
severe enough that he cannot even entertain a plea relating to a
felony offense, per Rule 5(c), F.R.Cr.P.:
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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(c) Offenses not Triable by the United States Magistrate
Judge. If the charge against the defendant is not triable
by the United States magistrate judge, the defendant shall
not be called upon to plead ....
By tracking authority of the United States magistrate judge,
three things are proven: First, the scope of authority assigned
to United States District Courts in the several States party to
the Constitution is demonstrated. The United States magistrate
system, which operates through the United States District Court,
has authority only over misdemeanor offenses within the several
States where those offenses are committed on military
reservations and installations and in national parks and the like
where the United States has jurisdiction. The exception pertains
to offenses on Native American Indian lands subject to tribal
government and held in trust by the United States. Statutory
authorization relating to judicial authority applicable to these
lands is located in general provisions of Title 48 of the United
States Code, Territories and Insular Possessions.
Here it is convenient to refer to Justice Marshall's
determination in American Insurance Co. v. 356 Bales of Cotton
supra: "Although admiralty jurisdiction can be exercised in the
States in those courts only which are established in pursuance of
the 3d article of the Constitution, the same limitation does not
extend to the territories ...."
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United States special maritime and territorial jurisdiction,
where all causes are conducted under admiralty rules common to
Civil Law, simply cannot be extended to the several States party
to the Constitution where such authority might adversely affect
constitutionally secured rights of the sovereign American people.
Thus, United States jurisdiction via United States District
Courts, in the framework of 18 U.S.C. 7(3), is limited to
statutory and regulatory provisions -- "United States District
Courts have only such jurisdiction as is conferred by an Act of
Congress under the Constitution." Hubbard v. Ammerman, 465 F.2d
1169 (5th Cir., 1972); see U.S.C.A. Const. Art. 3, Sec. 2; 28
U.S.C.A. 1344 notes.
It is here essential to go to the root source of authority
for court rules at 28 U.S.C. 2072, reproduced in relative part:
Sec. 2072. Rules of procedure and evidence; power to
prescribe
(a) The Supreme Court shall have the power to prescribe
general rules of practice ad procedure and rules of evidence
for cases in the United States district courts (including
proceedings before magistrates thereof) and courts of
appeals.
(b) Such rules shall not abridge, enlarge or modify any
substantial right. All laws in conflict with such rules
shall be of no further force or effect after such rules have
taken effect.
[emphasis added]
The de jure American people, most of whom are Citizens of
their respective States and nationals rather than citizens of the
geographical United States, have constitutionally-secured rights
in the Fourth, Fifth, Sixth, and Seventh Amendments to the
Constitution, all of which contemplate substantive (common law)
due process as contemplated by the "arising under" clause at
Article III, Section 2.1 of the Constitution. The prohibition
against abridgment of substantive rights at 28 U.S.C. 2072(b)
speaks to the matter of what laws and what authority may be
exercises in the United States District Court located in the
several States party to the Constitution -- the United States
territorial court, even within United States jurisdiction in the
several States party to the Constitution (18 U.S.C. 7(3)), cannot
abridge constitutionally secured rights of the American people.
Which is to say, the admiralty-Civil Law rules are of no effect
save as pertains to misdemeanor offenses and the like which do
not materially affect life, liberty or property.
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Each "district court" may make local rules under authority
of 28 U.S.C. 2071, but the substance of those rules is controlled
by Section 2072(b). This is articulated as a limitation in Rule
83, F.R.Cv.P., reproduced in relative part:
Rule 83. Rules by District Courts; Judge's Directives
(a) Local Rules.
(2) A local rule imposing a requirement of form shall not be
enforced in a manner that causes a party to lose rights
because of a nonwillful failure to comply with the
requirement.
(b) Procedures When There is No Controlling Law. A judge may
regulate practice in any manner consistent with federal law,
rules adopted under 28 U.S.C. 2072 and 2075, and local rules
of the district. No sanction or other disadvantage may be
imposed for noncompliance with any requirement not in
federal law, federal rules, or the local district rules
unless the alleged violator has been furnished in the
particular case with actual notice of the requirement.
[emphasis added]
In the context of what authority is conferred where, 28
U.S.C. 2071 and 2072, in conjunction with Rule 83, F.R.Cv.P.,
effect and accommodate the bar against exercise of authority
which is not specifically delegated by the Constitution save in
off-shore territories subject to Congress' Article IV, Section
3.2 legislative jurisdiction. Thus, the Downes Doctrine supra, is
effectively preserved by statutory and court rules authority.
This is assuredly the case where application of Internal Revenue
Code taxing, administrative and judicial authority are concerned.
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All Internal Revenue Code crimes and forfeitures (Chapter
75, IRC Sections 7201-7344) are under customs laws general
application regulations (26 CFR, Part 403 & 27 CFR, Part 72), and
at IRC 7323(a), it is found that the United States District Court
has jurisdiction over all "in rem" (admiralty) forfeitures under
internal revenue laws of the United States. At 18 U.S.C. 23 and
Rule 54(a), F.R.Cr.P., only United States District Courts for
off-shore United States territories under Congress' Article IV,
Section 3.2 legislative jurisdiction are identified as having
authority to accommodate felony prosecution or execution of
seizures under Title 18 of the United States Code. United States
District Courts in the several States party to the Constitution
are not included in the class designated by 18 U.S.C. 23 or Rule
54(a), F.R.Cr.P., so are prohibited from exercising this
authority.
Another evidence of limited United States District Court
jurisdiction is that jurisdiction of the United States magistrate
judge is concurrent with that of the United States District
Court. This is effected via local rules of the various courts. In
the Local Criminal Rules of the United States District Court for
the Northern District of Oklahoma, jurisdiction of United States
magistrate judges assigned to the Court is prescribed at Local
Criminal Rule 5.1C:
Jurisdiction. The jurisdiction of the magistrate judges of
the Northern District of Oklahoma shall be district-wide,
and any magistrate may hold court at any place within the
district.
Territorial jurisdiction for courts of the United States,
even in the several States party to the Constitution, is
confirmed at Rule 4(d)(2), F.R.Cr.P., concerning service of
summonses and execution of warrants:
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(2) Territorial limits. The warrant may be executed or the
summons may be served at any place within the jurisdiction
of the United States.
[emphasis added]
United States jurisdiction in the several States party to
the constitution has already been demonstrated (Article I,
Section 8.17, Constitution of the United States; 4 U.S.C. 71 &
72; 40 U.S.C. 255; State cession laws; 18 U.S.C. 7(3)), so the
rule governing service of summons and execution of warrants must
be determined in the framework already established. The United
States simply does not have general police powers in the several
States party to the Constitution -- the trial of crimes, in
particular, is governed by Article III, Section 2.3 of the
Constitution, which provides that the trial of crimes will be in
the State where any given crime was allegedly committed. The
Federal summons or warrant may be executed or served by United
States civil authorities only in United States jurisdiction where
criteria established by 40 U.S.C. 255 has been satisfied: (1)
the United States must acquire title to the land, (2) the
legislature of the State must cede jurisdiction; and (3) the
United States must formally accept jurisdiction. What little
enforcement authority the United States has in the several States
party to the Constitution is delegated by way of Article I,
Section 8.15 and Article IV, Section 4 -- Congress is authorized
to call up the militia to repel invasion, put down civil
uprising, or in proper jurisdiction, enforce laws of the United
States. This matter was addressed in United States v. Constantine
supra, following repeal of the Eighteenth Amendment.
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In his separate opinion in United States of America v.
Lopez, 115 S.Ct. 1624 (1995), 131 L.Ed.2d 626, Justice Thomas
addressed the matter: "If we wish to be true to a Constitution
that does not cede a police power to the Federal Government..,"
thus acknowledging that the Constitution does not delegate such
authority to Congress or any other branch of Federal government:
Indeed, on this crucial point, the majority and Justice
Breyer [dissenting] agree in principle: The Federal
Government has nothing approaching a police power. Id. at
page 64.
[emphasis added]
Justice Thomas went on to discuss "a regulation of police"
at page 86, as follows:
U.S. v. DeWitt, 76 U.S. 41, 9 Wall. 41, 19 L.Ed. 593 (1870)
marked the first time the court struck down a federal law as
exceeding the power conveyed by the commerce clause. In a 2
page opinion, the court invalidated a nationwide law
prohibiting all sales of naptha, and illuminating oils. In
so doing, the court remarked that the commerce clause "has
always been understood as limited by its terms; and as a
virtual denial of any power to interfere with the internal
trade and business of the separate states." Id. at page 44
The commerce clause is not at issue where matters at hand
are concerned, but the principle is constant, applicable with
respect to internal revenue laws as well as other Acts of
Congress -- the Constitution simply does not convey general
police powers to the United States so far as the several States
party to the Constitution are concerned.
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In a previous section of this brief, demonstration that the
Internal Revenue Code and enforcement of Chapter 75 crimes and
forfeitures confirm the above conclusion articulated by Justice
Thomas. The Internal Revenue Service line of authority
demonstrates United States off-shore territorial and maritime
limits: By way of 3 U.S.C. 301, Congress granted the President
power to delegate authority to department heads and various
executive departments; by way of E.O. No. 10289 (1951), the
President authorized the Secretary of the Treasury to enforce
customs laws, the anti-smuggling act, etc., and to establish
internal revenue districts; by way of T.D.O. No. 150-42 (1956),
the Secretary moved customs laws administration ("internal
revenue laws") from Jacksonville, Florida, Atlanta, Georgia,
Lower Manhattan and New York City to administration under
authority of the Department of the Treasury, Puerto Rico, and
authorized the Commissioner of Internal Revenue to administer
these internal revenue laws in Puerto Rico, the Virgin Islands,
etc., and United States maritime jurisdiction; via 26 CFR, Part
301.7621-1, E.O. No. 10289 is confirmed as the delegation under
IRC 7621 giving the President statutory authority to establish
internal revenue districts.
IRS, BATF, the United States Customs Service, and the United
States Secret Service, as bureaus in the Department of the
Treasury, currently operate as United States territorial agencies
-- they are not, in the strict sense applicable to the several
States party to the Constitution and Congress' Article I
delegated authority, agencies of United States Government.
Collectively, Federal civil enforcement agencies may exercise
"police powers" only in the coalition of Federal States subject
to Congress' Article IV, Section 3.2 legislative jurisdiction,
this coalition or political alliance also known as the "United
States of America".
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This conclusion may be demonstrated by regulations governing
"Emergency Federal Law Enforcement Assistance", Chapter 65, Title
28 of the Code of Federal Regulations. For purposes at hand, it
is sufficient to reproduce definitions at 28 CFR, Part 65.70:
Sec. 65.70 Definitions
(a) Law enforcement emergency. The term law enforcement
emergency is defined by the Act as an uncommon situation
which requires law enforcement, which is or threatens to
become of serious or epidemic proportions, and with respect
to which state and local resources are inadequate to protect
the lives and property of citizens, or to enforce the
criminal law. The Act specifically excludes the following
situations when defining "law enforcement emergency":
(1) The perceived need for planning or other activities
related to crowd control for general public safety projects;
and,
(2) A situation requiring the enforcement of laws associated
with scheduled public events, including political convention
and sports events.
(b) Federal law enforcement assistance. The term Federal law
enforcement assistance is defined by the Act to mean funds,
equipment, training, intelligence information, and
personnel.
(c) Federal law enforcement community. The term Federal law
enforcement community is defined by the Act as the heads of
the following departments or agencies:
( 1) Federal Bureau of Investigation;
( 2) Drug Enforcement Administration;
( 3) Criminal Division of the Department of Justice;
( 4) Internal Revenue Service;
( 5) Customs Service;
( 6) Immigration and Naturalization Service;
( 7) U.S. Marshals Service;
( 8) National Park Service;
( 9) U.S. Postal Service;
(10) Secret Service;
(11) U.S. Coast Guard;
(12) Bureau of Alcohol, Tobacco, and Firearms; and,
(13) Other Federal agencies with specific statutory
authority to investigate violations of Federal criminal law.
(d) State. The term state is defined by the Act as any state
of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Trust Territory of the Pacific Islands,
or the Commonwealth of the Northern Marian Islands.
[emphasis added]
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As already demonstrated, IRS, BATF, U.S. Customs, and the
Secret Service are agencies of the Department of the Treasury,
Puerto Rico, they are not agencies of United States Government in
the framework of Congress' Article I delegated authority -- they
are agencies of an off-shore territory subject to Congress'
Article IV, Section 3.2 legislative jurisdiction, and are
therefore "foreign" to the several States party to the
Constitution as they are not joined under the same political
compact, the Constitution, with the several States. Further,
since Congress never created the Bureau of Internal Revenue,
predecessor of IRS and BATF, these entities do not even emerge
from a constitutionally legitimate authority. But they aren't the
only black sheep -- the Federal Bureau of Investigation stands in
very little better stead, as demonstrated in Historical notes for
28 U.S.C. 531:
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
1966 Acts. The section [28 U.S.C. 531] is supplied for
convenience and clarification. The Bureau of Investigation
in the Department of Justice, the earliest predecessor
agency of the Federal Bureau of Investigation, was created
administratively in 1908. It appears that funds used for the
Bureau of Investigation were first obtained through the
Department of Justice Appropriation Act of May 22, 1908, ch.
186, Sec. 1 (par. beginning "From the appropriations for the
prosecution of crimes"), 35 Stat 236, although that
statutory provision makes no express mention of the Bureau
or of the investigative function.
Section 3 of Executive Order No. 6166 of June 10, 1933,
specifically recognized the Bureau of Investigation in the
Department of Justice and provided that all that Bureau's
functions together with the investigative functions of the
Bureau of Prohibition were "transferred to and consolidated
in a Division of Investigation in the Department of Justice,
at the head of which shall be a Director of Investigation."
The Division of Investigation was first designated as the
"Federal Bureau of Investigation" by the Act of Mar. 22,
1935, ch. 39, title II, 49 Stat. 77, and has been so
designated in statutes since that date.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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As an administratively rather than legislatively or
constitutionally-created agency, the Federal Bureau of
Investigation has and can have no powers other than those vested
in the administrative agency responsible for its creation. This
principle applies particularly to BATF and IRS, which are
agencies of the Department of the Treasury, Puerto Rico, and to
the Federal Bureau of Investigation. The principle of, "Nothing
comes from nothing," governs. Where the Constitution of the
United States vests legislative authority in Congress, authority
vested in Congress by Article I of the Constitution cannot be
assumed or even delegated to executive or judicial branches of
government. This principle has been confirmed by numerous Federal
court decisions -- United States v. Germane, 99 U.S. 508 (1879),
Norton v. Shelby County, 118 U.S. 425, 441, 6 S.Ct. 1121 (1866),
Pope v. Commissioner, 138 F.2d 1006, 1009 (6th Circuit, 1943),
and State v. Pinckney, 276 N.W.2d 433, 436 (Iowa, 1979), are but
a few of the many cases which confirm this conclusion.
Fortunately, the FBI scam doesn't require speculation or
constructive arguments as limits to FBI statutory authority are
spelled out at 28 U.S.C. 535, reproduced in relative part:
Sec. 535. Investigation of crimes involving government
officers and employees; limitations
(a) The Attorney General and the Federal Bureau of
Investigation may investigate any violation of title 18
involving Government officers and employees...
That's the limit of FBI criminal investigation authority in
the Continental United States -- the Bureau has no criminal
investigation or enforcement authority in the several States
party to the Constitution except as might relate to U.S.
Government officers and employees.
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The definition of "state" at 28 CFR, Part 65.70(d) confirms
both the opinion of Justice Thomas and the absence of a
constitutional provision which extends Federal police powers to
the several States party to the Constitution of the United
States. In fact, 28 CFR, Part 65.70(d) provides one of the more
complete lists of "states of the United States" found in the
United States Code and the Code of Federal Regulations: the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Trust Territory of the Pacific
Islands, and/or the Commonwealth of the Northern Mariana Islands.
These are all Federal states under Congress' Article IV, Section
3.2 legislative jurisdiction, with Congress having plenary rather
than delegated authority over these territories, insular
possessions and United Nations trust territories.
Jurisdiction is clarified by way of regulations which effect
"Authorization of Federal Law Enforcement Officers to Request the
Issuance of a Search Warrant" at 28 CFR, Part 60:
PART 60 - AUTHORIZATION OF FEDERAL LAW ENFORCEMENT OFFICERS
TO REQUEST THE ISSUANCE OF A SEARCH WARRANT
Sec.
60.1 Purpose
60.2 Authorized categories
60.3 Agencies with authorized personnel.
Sec. 60.1 Purpose
This regulation authorizes certain categories of federal law
enforcement officers to request the issuance of search
warrants under Rule 41, Fed.R.Crim.P., and lists the
agencies whose officers are so authorized. Rule 41(a)
provides in part that a search warrant may be issued "upon
the request of a federal law enforcement officer," and
defines that term in Rule 41(h) as "any government agent,
*** who is engaged in the enforcement of the criminal laws
and is within the category of officers authorized by the
Attorney General to request the issuance of a search
warrant." The publication of the categories and the listing
of the agencies is intended to inform the courts of the
personnel who are so authorized. It should be noted that
only in the very rare and emergent case is the law
enforcement officer permitted to seek a search warrant
without the concurrence of the appropriate U.S. Attorney's
office. Further, in all instances, military agents of the
Department of Defense must obtain the concurrence of the
appropriate U.S. Attorney's Office before seeking a search
warrant.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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Sec. 60.2 Authorized categories
The following categories of federal law enforcement officers
are authorized to request the issuance of a search warrant:
(a) Any person authorized to execute search warrants by a
statute of the United States.
(b) Any person who has been authorized to execute search
warrants by the head of a department, bureau, or agency (or
his delegate, if applicable) pursuant to any statute of the
United States.
(c) Any peace officer or customs officer of the Virgin
Islands, Guam, or the Canal Zone.
(d) Any officer of the Metropolitan Police Department,
District of Columbia.
(e) Any person authorized to execute search warrants by the
President of the United States.
(f) Any civilian agent of the Department of Defense not
subject to military direction who is authorized by statute
or other appropriate authority to enforce the criminal laws
of the United States.
(g) Any civilian agent of the Department of Defense who is
authorized to enforce the Uniform Code of Military Justice.
(h) Any military agent of the Department of Defense who is
authorized to enforce the Uniform Code of Military Justice.
(i) Any special agent of the Office of Inspector General,
Department of Transportation.
(j) Any special agent of the Investigations Division of the
Office of Labor Racketeering of the Office of Inspector
General, Department of Labor.
(l) Any special agent of the office of Investigations of
the Office of Inspector General, General Services
Administration.
(m) Any special agent of the Office of Inspector General,
Department of Housing and Urban Development.
(n) Any special agent of the Office of Inspector General,
Department of Interior.
(o) Any special agent of the Office of Inspector General,
Veterans Administration.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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Sec. 60.3 Agencies with authorized personnel.
The following agencies have law enforcement officers within
the categories listed in Sec. 60.2 of this part:
(a) National Law Enforcement Agencies:
(1) Department of Agriculture:
National Forest Service
Office of the Inspector General
(2) Department of Defense:
Defense Investigative Service Criminal Investigation
Command, U.S. Army
Naval Investigative Service, U.S. Navy
Office of Assistant Inspector General for
Investigations, Office of Defense Inspector General
Office of Special Investigation, U.S. Air Force
(3) Department of Health and Human Services:
Center for Disease Control
Food and Drug Administration
Office of Investigations, Office of the Inspector
General
(4) Department of the Interior:
Bureau of Indian Affairs
Bureau of Sport Fisheries and Wildlife
National Park Service
(5) Department of Justice:
Drug Enforcement Administration
Federal Bureau of Investigation
Immigration and Naturalization Service
U.S. Marshals Service
(6) Department of Transportation:
U.S. Coast Guard
Office of Inspector General, Department of
Transportation
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 143 of 165
(7) Department of the Treasury:
Bureau of Alcohol, Tobacco, and Firearms
Executive Protective Service
Internal Revenue Service
Criminal Investigation Division
Internal Security Division, Inspection Service
U.S. Customs Service
U.S. Secret Service
(8) U.S. Postal Service:
Inspection Service
(9) Department of Commerce: Office of Export Enforcement
(10) Small Business Administration:
Investigations Division of the Office of Inspector
General
(11) Department of State: Diplomatic Security Service
(12) Department of Labor: Office of Investigations and
Office of Labor Racketeering of the Office of Inspector
General
(13) General Services Administration: Office of Inspector
General
(14) Department of Housing and Urban Development: Office of
Inspector General
(15) Department of the Interior: Office of Inspector
General
(16) Veterans Administration: Office of Inspector General
(17) Environmental Protection Agency: Office of Criminal
Investigations
(b) Local Law Enforcement Agencies:
(1) District of Columbia Metropolitan Police Department
(2) Law Enforcement Forces and Customs Agencies of Guam,
The Virgin Islands, and the Canal Zone.
[emphasis added, cited omitted]
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
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Information conveyed in the above regulation confirms and
reinforces the determination of territorial jurisdiction for
Federal law enforcement agencies. Of particular note, "Local Law
Enforcement Agencies" include the District of Columbia
Metropolitan Police Department, and law enforcement and customs
agencies of Guam, the Virgin Islands, and the Canal Zone. There
is no mention of any of the several States party to the
Constitution so the Union states are excluded. The list of
agencies in 28 CFR, Part 60 also serves as an indictment: IRS
and BATF, without mentioning the U.S. Customs Service and U.S.
Secret Service, are agencies of the Department of the Treasury,
Puerto Rico (successors of the Bureau of Internal Revenue, Puerto
Rico), the Federal Bureau of Investigation has statutory
authority only to investigate officers and employees of United
States Government, and quasi-military entities (Section 60.2(f))
simply have no authority in the several States party to the
Constitution save in the event of invasion or civil uprising
(Article I, Section 8.15 & Article IV, Section 4, Constitution).
The above must also be construed in the context of
territorial limits prescribed for execution of warrants and
service of summonses at Rule 4(d)(2), F.R.Cr.P.:
(2) Territorial Limits. The warrant may be executed or the
summons may be served at any place within the jurisdiction
of the United States.
Where the several States party to the Constitution are
concerned, the United States does not have jurisdiction unless
(1) the United States has acquired title to land, (2) the
legislature of the State where title is acquired has ceded
jurisdiction, and (3) the United States formally accepts
jurisdiction. (40 U.S.C. 255; State cession laws)
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 145 of 165
This section conclusively demonstrates that the "United
States District Court" is an Article IV legislative-territorial
court of the United States which has absolutely no Article III
powers; enforcement of Internal Revenue Code criminal statutes,
and felony statutes in Title 18 of the United States Code, by way
of United States District Courts, is limited to United States
off-shore territorial courts exclusive of the several States
party to the Constitution; United States District Courts located
in the several States party to the Constitution are authorized by
regulation only to prosecute petty and misdemeanor offenses
committed in jurisdiction under authority of the Department of
Defense and the Bureau of Land Management (Native American Indian
reservations not considered); United States civilian enforcement
agencies and personnel do not have "police powers" in the several
States party to the Constitution; United States magistrate
judges are required to certify all orders and other documents
with personal seals, and cannot ask or entertain pleas in felony
matters; and jurisdiction of both the Article III "district
court of the United States" and the Article IV "United States
District Court" is limited to United States territorial
jurisdiction in the several States party to the Constitution. (18
U.S.C. 7(3))
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IV. Plaintiffs Lack of Capacity & Legal Standing
The "United States of America" are the moving and
prosecuting parties in both UNITED STATES OF AMERICA v. DAN
LESLIE MEADOR, Case No. #96-CR-113-C, and UNITED STATES OF
AMERICA v. KENNEY F. MOORE, et al., Case No. #96-CR-92-C.
The Constitution of the United States vests authority in a
governmental agency known as the "United States", not the "United
States of America". This entity has no constitutionally vested
authority, and is not authorized as plaintiff or defendant in
Titles 18, 26, or 28 of the United States Code. Authority in
these three titles is vested in the "United States" both as
plaintiff and defendant.
Where matters at issue are concerned, the "United States of
America" must be representative of (1) the executive authority
for the coalition of Federal States known as the "United States
of America", or (2) undisclosed foreign principals, the
"Competent Authority" or "Central Authority", both established
under geographical United States treaties and mutual assistance
agreements.
At 48 U.S.C. 874 & 1406f, the "United States of America" is
found as the moving party in United States off-shore territories
subject to Congress' Article IV, Section 3.2 legislative
jurisdiction:
Sec. 874. Judicial process; officials to be citizens of
United States; oaths
All judicial process shall run in the name of "United States
of America, ss, the President of the United States", and all
penal or criminal prosecution in the local courts shall be
conducted in the name and by the authority of "The People of
Porto Rico [Puerto Rico]", and all officials shall be
citizens of the United States, and, before entering upon the
duties of their respective offices, shall take an oath to
support the Constitution of the United States and the laws
of Porto Rico [Puerto Rico}.
Sec. 1406f. Judicial process; title of criminal prosecution
All judicial process shall run in the name of "United States
of America, scilicet, the President of the United States",
and all penal and criminal prosecutions in the local courts
shall be conducted in the name and by the authority of "the
People of the Virgin Islands of the United States".
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 147 of 165
In the alternative to representing the executive authority
as Commander-in-Chief of the military, as is the case in United
States territories taken by conquest, the "United States of
America" serves as agent or nominee for undisclosed foreign
principals established under treaties on private international
law and mutual assistance agreements, per 28 CFR, Parts 0.49 &
0.64-1:
Sec. 0.49 International judicial assistance.
The Assistant Attorney General in charge of the Civil
Division shall direct and supervise the following functions:
(a) The functions of the "Central Authority" under the
Convention between the United States and other Governments
on the Taking of Evidence Abroad in Civil and Commercial
Matters, TIAS 7444, which entered into force on October 7,
1972.
(b) The functions of the "Central Authority" under the
Convention between the United States and other Governments
on the Service Abroad of Judicial and Extrajudicial
Documents, TIAS 6638, which entered into force on February
10, 1969.
(c) To receive letters of requests issued by foreign and
international judicial authorities which are referred to the
Department of Justice through diplomatic or other
governmental channels, and to transmit them to the
appropriate courts or officers in the United States for
execution.
(d) To receive and transmit through proper channels letters
of request addressed by courts in the United States to
foreign tribunals in connection with litigation to which the
United States is a party.
Sec. 0.64-1 Central or Competent Authority under treaties
and executive agreements on mutual assistance in criminal
matters.
al in charge of the Criminal Division shall have the
authority and perform the functions of the "Central
Authority" or "Competent Authority" (or like designation)
under treaties and executive agreements between the United
States of America and other countries on mutual assistance
in criminal matters which designate the Attorney General or
the Department of Justice as such authority. The Assistant
Attorney General, Criminal Division, is authorized to
redelegate this authority to the Deputy Assistant Attorneys
General, Criminal Division, and to the Director and Deputy
Directors of the Office of International Affairs, Criminal
Division.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 148 of 165
Unless or until the "United States of America" is positively
identified, or the principal of interest for whom the United
States of America serves as nominee is identified, the entity or
agency known as the "United States of America" lacks capacity to
prosecute causes in the several States party to the Constitution
of the United States as no such entity is recognized or
authorized by the Constitution of the United States, or Titles
18, 26 or 28 of the United States Code.
Because IRS authority lies chiefly under regulations
extending authority to administer and enforce customs laws
relating to narcotics and other drugs (26 CFR, Part 403), with
said customs laws premised on treaties which fall under
provisions of private international law, it is believed that
where matters at hand are concerned, the principal of interest is
the Central Authority or Competent Authority identified at 28
CFR, Part 0.64-1. However, it has been conclusively demonstrated
in previous sections of this brief that Internal Revenue Service
jurisdiction for enforcement of these customs laws is limited to
United States off-shore territories and maritime jurisdiction,
exclusive of the several States party to the Constitution of the
United States. However, whether the "United States of America" is
representative of the President of the United States in his
capacity as Commander-in-Chief of the military, or the "Central
Authority" or "Competent Authority", the entity "United States of
America" has no statutory or regulatory authority in the Union of
several States party to the Constitution.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 149 of 165
V. Failure to Establish Jurisdiction Over the Party
The matter of "citizen of the United States" v. "Citizen of
the several States party to the Constitution" has already been
addressed, to some extent, by way of Ex parte Knowles and United
States v. Cruikshank supra, with reference to Section 1 of the
Fourteenth Amendment, the definitions at 8 U.S.C. 1101(a)(21) &
(22) (Immigration and Nationality Act), and special applications
in the Internal Revenue Code.
Since promulgation of the Fourteenth Amendment in 1868,
there have been two distinct classes of American citizen -- one
the sovereign Citizen of any one of the several States party to
the Constitution, this "Citizen" being a member of the
"Principal" class, the Sovereign responsible for establishing
government to secure God-given unalienable rights, the second
being the colorable citizenship vested only with civil or
government-granted rights, the Section 1, Fourteenth Amendment
"citizen of the United States" who is "subject to the
jurisdiction thereof." The latter, by virtue of colorable
citizenship which issues as a government grant rather than
inherent right, has the same status as non-moral, government-
created entities (legal fictions) such as corporations, trusts,
etc.
Original intent of the Fourteenth Amendment was articulated
in the Civil Rights Act of 1866 (14 Stat. 27):
... [A]ll persons born in the United States and not subject
to any foreign power, excluding Indians not taxed, are
hereby declared to be citizens of the United States; and
such citizens, of every race and color ... shall have the
same right, in every State and Territory in the United
States ... to full and equal benefit of all laws and
proceedings for the security of person and property, as
enjoyed by white citizens.
[emphasis added]
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 150 of 165
Legislatures of most Southern States and several Northern
States refused to ratify the Fourteenth Amendment when it was
first proposed, so despite Congress having convened in unity
after the end of the Civil War, Northern forces dissolved
Congress and effectively over-threw State governments of Southern
States at bayonet point. Congressional delegates of Southern
States were not accepted until legislatures of Southern State
governments approved the Fourteenth Amendment, thus creating the
colorable and inferior citizenship, the citizen-subject, known as
the "citizen of the United States".
The term "colored" which attached to African Americans
therefore had two meanings: The Fourteenth Amendment was
designed to extend citizenship to people of color, and the
citizenship itself was colored or colorable -- the Amendment
created a subject class of citizen known as the "citizen of the
United States". In the 1880's, the "citizenship" franchise was
extended to non-moral beings such as corporations, trusts,
partnerships, etc., as these legal fictions were incorporated in
the term "person" for legal purposes.
Prior to 1868, and even in the present, a Citizen of any
given State party to the Constitution was free to travel from
state-to-state, and he could take citizenship, or transfer
citizenship, from one state to another merely by meeting certain
criteria established by legislatures of the several States. For
example, establishing permanent abode in one of the several
States for three or six months and proclaiming intent is adequate
to establish citizenship in a State when someone was or is born
or naturalized in any of the several States party to the
Constitution. No formal judicial process was or is necessary --
the Citizen of the several States has citizenship in one of the
Union states as a matter of inherent right.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 151 of 165
However, the citizenship right is a matter of convention
which falls in the framework of "municipal law". The matter was
addressed in Roa v. Collector of Customs, 23 Philippine 315, 332
(1912):
Citizenship, says Moore on International Law, strictly
speaking, is a term of municipal law and denotes the
possession within the particular state of full civil and
political rights subject to special disqualifications, such
as minority, sex, etc. The conditions of which citizenship
are [sic] acquired are regulated by municipal law. There is
no such thing as international citizenship nor international
law (aside from that which might be contained in treaties)
by which citizenship is acquired.
This principle, so far as it distinguishes between the
Citizen of any given Union state and the citizen of the United
States, has been addressed by numerous court decisions:
A person who is a citizen of the United States ... is
necessarily a citizen of the particular state in which he
resides. But a person may be a citizen of a particular state
and not a citizen of the United States. To hold otherwise
would be to deny to the state the highest exercise of its
sovereignty, -- the right to declare who are its citizens.
[State v. Fowler, 41 La.Ann. 380, 6 S. 602 (1889)]
[emphasis added]
There are, then, under our republican form of government,
two classes of citizens, one of United States and one of the
state. One class of citizenship may exist in a person,
without the other, as in the case of a resident of the
District of Columbia ....
[Gardina v. Board of Registrars, 160 Ala. 155]
[48 S. 788, 791 (1909), emphasis added]
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 152 of 165
In the scheme of things, the "citizen of the United States"
has gone through sufficient evolution that it moved first from
cognizance of people of color, chiefly the African American
liberated subsequent to the Civil War, to the current situation
where Congress has elected to extend the status of "citizen of
the United States" to people in Puerto Rico, the Virgin Islands,
American Samoa, and other off-shore United States territories.
There is no clear constitutional basis for extending the status
of "citizen of the United States" to people who are not
indigenous to the several States party to the Constitution who
have not immigrated to the several States with the intent of
becoming citizens of any given State. Thus, this "citizen of the
United States" has become as much a geographical citizenship in
the framework of Congress' Article IV, Section 3.2 municipal
authority as the Citizen of any given State party to the
Constitution -- it is essentially a citizenship foreign to the
several States party to the Constitution as Oklahoma citizenship
is to Kansas, Kansas to Nebraska, et al.
By definition of "naturalization" at 8 U.S.C. 1101(a)((23),
we find that, "The term 'naturalization' means the conferring of
nationality of a state upon a person after birth, by any means
whatsoever." Which is to say, effecting "naturalization" is an
act of municipal authority. Police powers derive from the same
municipal authority. So when Congress acts under Article IV,
Section 3.2 municipal authority, the authority does not reach the
several States party to the Constitution of the United States.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 153 of 165
The "citizen or resident of the United States," or "United
States person" identified in the Internal Revenue Code must be
seen in the light of Congress' Article III, Section 3.2 plenary
or municipal power in the geographical United States, as the Code
does not confer authority to establish revenue districts in the
several States party to the Constitution (IRC 7621), and no
taxing statute in the Internal Revenue Code reaches the several
States party to the Constitution. The Code speaks definitively to
"citizens and residents" of the geographical United States,
thereby excluding citizens and residents of the several States
party to the Constitution ("nationals of the United States" by
Immigration and Nationality Act definition). Where the Internal
Revenue Code "citizen or resident of the United States" is
geographically particularized, the "citizen or resident" must of
necessity be premised on the same criteria as citizenship in any
of the several States party to the Constitution. In other words,
it is a geographical citizenship conferred under Congress'
Article IV, Section 3.2 municipal authority. Definitions of
"resident alien" and "nonresident alien" at IRC 7701(b) shed
light on the matter:
(b) Definition of resident alien and nonresident alien.
(1) In general. For purposes of this title (other than
subtitle B) --
(A) Resident alien. An alien individual shall be treated as
a resident of the United States with respect to any calendar
year if (and only if) such individual meets the requirements
of clause (i), (ii), or (iii):
(i) Lawfully admitted for permanent residence. Such
individual is a lawful permanent resident of the United
States at any time during such calendar year.
(ii) Substantial presence test. Such individual meets the
substantial presence test of paragraph (3).
(iii) First year election. Such individual makes the
election provided in paragraph (4).
(B) Nonresident alien. An individual is a nonresident alien
if such individual is neither a citizen of the United State
nor a resident of the United States (within the meaning of
subparagraph (A)).
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 154 of 165
The Internal Revenue Code is written for geographical
application. This is made clear by the definition of "United
States" at IRC 7701(a)(9) and "State" at Section 7701(a)(10).
Geographical application of the Code so far as Subtitle A & C
taxes are concerned is clarified to an even greater extent by
definitions for Chapter 21, the Federal Insurance Contributions
Act. The first important definitions are at IRC 3121(e):
(e) State, United States, and citizen.
For purposes of this chapter --
(1) State. The term "State" includes the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, and American Samoa.
(2) United States. The term "United States" when used in a
geographical sense includes the Commonwealth of Puerto Rico,
the Virgin Islands, Guam, and American Samoa.
An individual who is a citizen of the Commonwealth of Puerto
Rico (but not otherwise a citizen of the United States)
shall be considered, for purposes of this section, as a
citizen of the United States.
The corresponding definitions in regulations at 26 CFR, Part
31.3121(e)-1, cited supra, demonstrate that Alaska and Hawaii
were included in the above definitions of "State" and "United
States" prior to the two being admitted to the Union of several
States, but were removed once they were admitted. The evidence
demonstrates that application of the Code is territorial, limited
to Congress' Article IV, Section 3.2 legislative jurisdiction,
and that determination of status as "citizen of the United
States" is therefore territorial within geographical limits of
Congress' municipal authority. The definition of "American
employer" at IRC 3121(h) sheds more light on the subject:
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 155 of 165
(h) American employer.
For purposes of this chapter, the term "American employer"
means an employer which is-
(1) the United States or any instrumentality thereof,
(2) an individual who is a resident of the United States,
(3) a partnership, if two-thirds or more of the partners
are residents of the United States,
(4) a trust, if all the trustees are residents of the
United States, or
(5) a corporation organized under the laws of the United
States or of any State.
Within the geographical United States, a private "American
employer" may elect to participate in the Social Security system,
but the option does not extend beyond the geographical United
States except for foreign offices and affiliates of American
employers, as defined above. In the context of Private
International Law supra, a Citizen of one of the several States
party to the Constitution is foreign and therefore alien to the
geographical United States under Congress' Article IV, Section
3.2 legislative jurisdiction -- the several States, and Citizens
thereof, are beyond Congress' plenary power and municipal
authority.
"Determination of presence" in the geographical United
States is at 26 CFR, Part 301.7701(b)-1(c)(2):
(2) Determination of presence -- (i) Physical presence. For
purposes of the substantial presence test, an individual
shall be treated as present in the United States on any day
that he or she is physically present in the United States at
any time during the day. (But see Sec. 301.7701(b)-3
relating to days of presence that may be excluded.)
(ii) United States. For purposes of section 7701(b) and the
regulations thereunder, the term United States when used in
a geographical sense includes the states and the District of
Columbia. It also includes the territorial waters of the
United States and the seabed and subsoil of those submarine
areas which are adjacent to the territorial waters of the
United States and over which the United States has exclusive
rights, in accordance with international law, with respect
to the exploration and exploitation of natural resources. It
does not include the possessions and territories of the
United States or the air space over the United States.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 156 of 165
Further light is shed on the matter with the definition of
"foreign country" at 26 CFR, Part 301.7701(b)-2(b):
(b) Foreign country. For purposes of section 7701(b) and the
regulations thereunder, the term "foreign country" when used
in a geographical sense includes any territory under the
sovereignty of the United Nations or a government other than
that of the United States...
Each of the several States party to the Constitution is
sovereign save as certain powers are by mutual agreement
delegated to the United States by way of a compact known as the
Constitution of the United States. The sovereignty of the several
States is demonstrated at Article I, Section 8.17 of the
Constitution -- the legislature of each State party to the
Constitution must cede jurisdiction to the United States when the
United States acquires land in the several States even for
constitutionally authorized purposes. Congress has no authority
to take land -- United States jurisdiction in any of the several
States may be acquired only with State consent. Therefore, the
Citizen of Oklahoma, Kansas, Colorado, or one of the other States
party to the Constitution, is a "nonresident alien" of the
geographical United States as the term "nonresident alien" is
defined in the Internal Revenue Code. Territory within the
borders of each of the several States party to the Constitution
is under the sovereignty of State governments, not the United
States.
Rules of evidence concerning the nonresident alien of the
United States are at 26 CFR, Part 1.871-4:
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 157 of 165
Sec. 1.871-4 Proof of residence of aliens.
(a) Rules of evidence. The following rules of evidence
shall govern in determining whether or not an alien within
the United States has acquired residence therein for
purposes of the income tax.
(b) Nonresidence presumed. An alien by reason of his
alienage, is presumed to be a nonresident alien.
(c) Presumption rebutted -- (1) Departing alien. In the
case of an alien who presents himself for determination of
tax liability before departure from the United States, the
presumption as to the alien's nonresidence may be overcome
by proof --
(i) That the alien, at least six months before the date he
so presents himself, has filed a declaration of his
intention to become a citizen of the United States under the
naturalization laws; or
(ii) That the alien, at lease six months before the date he
so presents himself, has filed Form 1078 or its equivalent;
or
(iii) Of acts and statements of the alien showing a
definite intention to acquire residence in the United States
or showing that his stay in the United States has been of
such an extended nature as to constitute him a resident.
(2) Other aliens. In the case of other aliens, the
presumption as to the alien's nonresidence may be overcome
by proof --
(i) That the alien has filed a declaration of his intention
to become a citizen of the United States under the
naturalization law; or
(ii) That the alien has filed Form 1078 or its equivalent;
or
(iii) Of acts and statements of the alien showing a
definite intention to acquire residence in the United States
or showing that his stay in the United States has been of
such an extended nature as to constitute him a resident.
(d) Certificate. If, in the application of paragraph
(c)(1)(iii) or (2)(iii) of this section, the internal
revenue officer or employee who examines the alien is in
doubt as to the facts, such officer or employee may, to
assist him in determining the facts, require a certificate
or certificates setting forth the facts relied upon by the
alien seeking to overcome the presumption. Each such
certificate, which shall contain, or be verified by, a
written declaration that it is made under the penalties of
perjury, shall be executed by some credible person or
persons, other than the alien and members of his family, who
have known the alien at least six months before the date of
execution of the certificate or certificates.
[emphasis added]
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 158 of 165
Where matters at hand are concerned, Kenney F. Moore,
Colleen Moore, Wayne Richard, Gunwall, and Dan Meador all live
and have abode on privately owned land in Oklahoma, one of the
several States party to the Constitution. They have respectively
rebutted being "citizens of the United States" as created by
Section 1 of the Fourteenth Amendment. But more to the point
where matters at hand are concerned, none have lived in or made
declarations of intent to become citizens or residents of the
geographical United States under Congress' Article IV, Section
3.2 legislative jurisdiction -- within the territorial bounds of
Congress' municipal or plenary power. They are not citizens or
residents of the District of Columbia, Puerto Rico, the Virgin
Islands, American Samoa, the Northern Mariana Islands, or the
Pacific Trust territories. Therefore, they are not citizens or
residents of the geographical United States, as defined in the
Internal Revenue Code, and are therefore classified as
"nonresident aliens" of the United States for Internal Revenue
Code purposes.
In order to overcome the presumption of alienage, counsel
for the complaining party must comply with provisions of 26 CFR,
Part 1.871-4(c)(2): Counsel must prove that Kenney F. Moore,
Colleen Moore, Wayne Richard, Gunwall, and/or Dan Meador (1)
filed a declaration of intention to become a citizen of the
geographical United States under the naturalization law, (2) that
any of the defendants filed a Form 1978 or equivalent, (3) that
any of the defendants by acts or statements demonstrated a
definite intention to acquire residence in the geographical
United States, or (4) that any of the defendants had an extended
stay in the geographical United States sufficient to constitute
residence (see substantial presence test at 26 CFR, Part
301.7701(b)-1(c)).
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 159 of 165
VI. Estoppel Effected by Paperwork Reduction Act
Under requirements of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.), all Government agencies and independent agencies
providing services for Government information-collection activity
are required to disclose certain information to the public
concerning information-gathering instruments and initiatives. So
far as information-gathering forms such as the "940", "941" and
"1040" tax return reporting forms distributed by the Internal
Revenue Service are concerned, the information required to be
disclosed is listed in Office of Management and Budget
regulations at 5 CFR, Part 1320.8(b):
(b) Such office shall ensure that each collection of
information:
(1) Is inventoried, displays a currently valid OMB control
number, and, if appropriate, an expiration date;
(2) Is reviewed by OMB in accordance with the clearance
requirements of 44 U.S.C. 3507; and
(3) Informs and provides reasonable notice to the potential
persons to whom the collection of information is addressed
of --
(i) The reasons the information is planned to be and/or has
been collected;
(ii) The way such information is planned to be and/or has
been used to further the proper performance of the functions
of the agency;
(iii) An estimate, to the extend practicable, of the average
burden of the collection (together with a request that the
public direct to the agency any comments concerning the
accuracy of the burden estimate and any suggestions for
reducing this burden);
(iv) Whether responses to the collection of information are
voluntary, required to obtain or retain a benefit (citing
authority), or mandatory (citing authority);
(v) The nature and extent of confidentiality to be
provided, if any (citing authority); and
(vi) The fact that an agency may not conduct or sponsor, and
a person is not required to respond to, a collection of
information unless it displays a current valid OMB control
number.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 160 of 165
The Paperwork Reduction Act provides unique public
protection in that failure of an agency to comply with these
requirements effects administrative and/or judicial estoppel.
Provisions to this effect are in OMB regulations at 26 CFR, Part
1320.6, reproduced in relative part:
Sec. 1320.6 Public Protection
(a) Notwithstanding any other provision of law, no person
shall be subject to any penalty for failing to comply with a
collection of information that is subject to the
requirements of this part if:
(1) The collection of information does not display, in
accordance with Sec. 1320.3(f) and Sec. 1320(b)(1), a
currently valid OMB control number assigned by the Director
in accordance with the Act; or
(2) The agency fails to inform the potential person who is
to respond to the collection of information, in accordance
with Sec. 1320.5(b)(2), that such person is not required to
respond to the collection of information unless it displays
a currently valid OMB control number.
(b) The protection provided by paragraph (a) of this
section may be raised in the form of a complete defense,
bar, or otherwise to the imposition of such penalty at any
time during the agency administrative process in which such
penalty may be imposed or in any judicial action applicable
thereto.
(c) Whenever an agency has imposed a collection of
information as a means for providing or satisfying a
condition for the receipt of a benefit or the avoidance of a
penalty, and the collection of information does not display
a currently valid OMB control number or inform the potential
persons who are to respond to the collection of information,
as prescribed in Sec. 1320.5(b), the agency shall not treat
a person's failure to comply, in and of itself, as grounds
for withholding the benefit or imposing the penalty. The
agency shall instead permit respondents to prove or satisfy
the legal conditions in any other reasonable manner.
(d) Whenever a member of the public is protected from
imposition of a penalty under this section for failure to
comply with a collection of information, such penalty may
not be imposed by an agency directly, by an agency through
judicial process, or by any other person through
administrative or judicial process.
[emphasis added]
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 161 of 165
The "1040" and other return forms (940, 941, etc.) do not
meet requirements of the Paperwork Reduction Act of 1980, and are
therefore of no legal effect. So far as Internal Revenue Service
solicitation of information via these forms is concerned, the
Ninth Circuit Court of Appeals stipulated in U.S. v. Smith, 866
F.2d 1092 --
The PRA included within the definition of "information
collection request" a "reporting requirement, collection of
information requirement, or other similar method calling for
the collection of information" ... This definition
encompasses agency regulations that require disclosure of
information to the government and that call for the
disclosure of reporting of information through answers to
standardized (identical) questions. The relevant ...
regulations meet this description and are therefore
information collection requests within the meaning of PRA.
(at pp. 1098-99)
See Legislative History for P.L. 96-511, "Section I. Purpose
and Summary", page 2, concerning the Paperwork Reduction Act, 3/4
of the way down the page: "Requires all information requests of
the public to display a control number, and expiration date, and
indicate why the information is needed, how it will be used, and
whether it is a voluntary or mandatory request. Requests which do
not reflect a current OMB control number or fail to state why
not, are bootleg requests and may be ignored by the public." In
section "II. Need for Legislation", p. 3, second paragraph, the
report states as follows: "Federal paperwork requirements,
whether they are tax forms, Medicare forms, financial loans, job
applications, or compliance reports, are something such
individual touches, feels, and works on ...." In other words, the
Internal Revenue Service, under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.) and attending OMB regulations (5 CFR, Part
1340), has the same mandate as all other agencies of or which
contract services for Federal Government, which is also the case
under the Administrative Procedures Act (5 U.S.C. 552 et seq.),
the Privacy Act (5 U.S.C. 552a), and the Federal Register Act (44
U.S.C. 1501 et seq.).
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 162 of 165
Where the instant matters is concerned, OMB regulations and
the report articulating Congressional intent are condemning as
"1040" assessments against the Moores proceeded on assessments
issued by Internal Revenue Service principals, not the Moores. In
other words, the assessments are conspicuously fraud as the
alleged information form which constitutes the underlying "Kind
of Tax" was something manufactured by Service personnel -- the
Moores did not fill out 1040 tax return forms for 1990 and 1991,
two of the assessment years in question, and the "1040" return
forms which they did complete failed to provide requisite
disclosure./19
Therefore, per 26 CFR, Part 1320.6(b) & (d), and U.S. v.
Smith supra, failure of Internal Revenue Service principals to
comply with provisions of the Paperwork Reduction Act's statutory
and regulatory authority, effects estoppel on all administrative
and judicial initiatives predicated on the basic fraud -- on the
"bootleg" instruments employed to create bogus liabilities to
begin with.
____________________
19 The Moores confirmed by telephone that they filed 1040
return forms for years assessed prior to 1990, but IRS
principals produced "1040" assessments for 1990 & 1991.
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 163 of 165
It has already been demonstrated that the "1040" return form
is used only for special refunds (26 CFR, Parts 31.6402(a)-2 &
601.401(d)(4)) which are voluntary in nature, and that
"withholding agents", as that term is defined at 26 CFR, Part
1.1441-7, are the only "persons liable" for withholding,
reporting, and paying withheld tax (see 26 CFR, Part 1.1461-2,
forms generally required are 1042 & 1042S). Thus, the Paperwork
Reduction Act effects both administrative and judicial estoppel
against all actions predicated on the underlying Internal Revenue
Service fraud.
Conclusion
Exhibits are not included with this brief as photocopy
reproductions of most authorities such as The United States
Government Manual, the Parallel Table of Authorities and Rules,
and other such material which might otherwise be inconvenient to
locate have been included as exhibits with previous pleadings.
Verification
Under penalties of perjury, per 28 U.S.C. 1746(1), I by my
signature attest that to the best of my current knowledge,
understanding, and belief, all matters of law and fact addressed
herein are accurate and true.
/s/ Dan Meador
_________________________________________ _____________________
Dan Meador Date
P.O. Box 2582
Ponca City 74602/tdc
OKLAHOMA STATE
tel: (405) 765-1415
fax: (405) 765-1146
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 164 of 165
Notice of Service
I attest that on the date this instrument is filed, a true
and correct copy is being hand delivered to the office of the
United States Attorney for the Northern District of Oklahoma,
located in the Federal courthouse, Tulsa, Oklahoma.
/s/ Dan Meador
_________________________________________ _____________________
Dan Meador Date
P.O. Box 2582
Ponca City 74602/tdc
OKLAHOMA STATE
tel: (405) 765-1415
fax: (405) 765-1146
UNITED STATES OF AMERICA v. DAN LESLIE MEADOR:
Page 165 of 165
# # #
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Dan Meador : Set 3