Memorandum in Support of Administrative Appeals,
Civil Litigation &/or Criminal Complaints
This memorandum is not intended to be exhaustive, but merely
to provide all interested parties with sufficient information to
constitute notice, and thereby compel due diligence necessary for
determining law which governs the conduct of the various parties.
Each matter at issue is being treated with as much brevity as
possible. Should it be necessary to independently pursue
administrative and/or judicial remedies, matters set out below,
anchored in published law, court cases and other government
publications, and privately published material to which the
Internal Revenue Service, Department of Justice, and other
government agencies have acquiesced, will be deemed accurate and
sufficient cause for action should Internal Revenue Service
officers or agents and/or interested third parties fail to rebut,
supporting contentions with legal authorities and other needful
documentation adequate to overcome assertions herein.
This memorandum will be construed to comply with provisions
necessary to establish presumed fact (Rule 301, Federal Rules of
Civil Procedure, and attending State rules) should interested
parties fail to rebut any given allegation or matter of law
addressed herein. The memorandum is construed as adequate to meet
requirements of judicial notice, thus preserving fundamental law.
Application of matters established herein will be construed to
have general application.
1. IRS Identity & Principal of Interest
In 1953, the Internal Revenue Service was created by the
stroke of a pen when the Secretary of the Treasury changed the
name of the Bureau of Internal Revenue (T.O. No. 150-29, G.M.
Humphrey, Secretary of the Treasury, July 9, 1953). However, no
congressional or presidential authorization for making this
change has been located, so the source of authority had to
originate elsewhere. Research to which IRS officials have
acquiesced suggests that the Secretary exercised his authority as
trustee of Puerto Rico Trust #62 (Internal Revenue) (see 31
U.S.C. § 1321), and as will be demonstrated, the Secretary does,
in fact, operate as Secretary of the Treasury, Puerto Rico.
The solid link between the Internal Revenue Service and the
Department of the Treasury, Puerto Rico, was first published in
the September 1995 issue of Veritas Magazine, based on research
by William Cooper and Wayne Bentson, both of Arizona. In October,
a criminal complaint was filed in the office of W. A. Drew
Edmondson, attorney general for Oklahoma, against an Enid-based
revenue officer, and in the time since, IRS principals have
failed to refute the allegation that IRS is an agency of the
Department of Treasury, Puerto Rico. In November, criminal
complaints were filed simultaneously with the grand jury for the
United States district court for the District of Northern
Oklahoma, Tulsa, and the office of Attorney General Edmondson,
and both the office of the United States Attorney and IRS
principals have yet to rebut the allegations in that instance
(UNITED STATES OF AMERICA v. Kenney F. Moore, et al., 95 CR-
129C).
By consulting the index for Chapter 3, Title 31 of the
United States Code, one finds that IRS and the Bureau of Alcohol,
Tobacco and Firearms are not listed as agencies of the United
States Department of the Treasury. The fact that Congress never
created a "Bureau of Internal Revenue" is confirmed by
publication in the Federal Register at 36 F.R. 849-890 [C.B. 1971
- 1,698], 36 F.R. 11946 [C.B. 1971 - 2,577], and 37 F.R. 489-490;
and in Internal Revenue Manual 1100 at 1111.2.
Implications are condemning both to IRS and third parties
who knowingly participate in IRS-initiated scams: No legitimate
authority resides in or emanates from an office which was not
legitimately created and/or ordained either by state or national
constitutions or by legislative enactment. See variously, United
States v. Germane, 99 U.S. 508 (1879), Norton v. Shelby County,
118 U.S. 425, 441, 6 S.Ct. 1121 (1866), etc., dating to Pope v.
Commissioner, 138 F.2d 1006, 1009 (6th Cir. 1943); where the
state is concerned, the most recent corresponding decision was
State v. Pinckney, 276 N.W.2d 433, 436 (Iowa 1979).
Another direct evidence of the fraud is found at 27 CFR § 1,
which prescribes basic requirements for securing permits under
the Federal Alcohol Administration Act. The problem here is that
Congress promulgated the Act in 1935, and the same year, the
United States Supreme Court declared the Act unconstitutional.
Administration of the Act was subsequently moved off-shore to
Puerto Rico, along with the Federal Alcohol Administration, and
operation eventually merged with the Bureau of Internal Revenue,
Puerto Rico, which until 1938, along with the Bureau of Internal
Revenue, Philippines, created by the Philippines provisional
government via Philippines Trust #2 (internal revenue) (see 31
U.S.C. § 1321 for listing of Philippines Trust #2 (internal
revenue)), administered the China Trade Act (licensing & revenue
collection relating to opium, cocaine & citric wines). This line
will be resumed after examining additional evidences concerning
IRS and Commissioner of Internal Revenue authority.
Further verification that IRS does not have lawful authority
in the several States is found in the Parallel Table of
Authorities and Rules, beginning on page 751 of the 1995 Index
volume to the Code of Federal Regulations. It will be found that
there are no regulations supportive of 26 U.S.C. §§ 7621, 7801,
7802 & 7803 (these statute listings are absent from the table).
In other words, no regulations have been published in the Federal
Register, extending authority to the several States and the
population at large, (1) to establish revenue districts within
the several States, (2) extending authority of the Department of
the Treasury [Puerto Rico] to the several States, (3) giving
authority to the Commissioner of Internal Revenue and assistants
within the several States, or (4) extending authority of any
other Department of Treasury personnel to the several States.
Authority of the Internal Revenue Service, via the
Commissioner of Internal Revenue, is convoluted in regulations,
but makes an amount of sense by citing various regulations
pertaining to the Service and application of the Commissioner's
authority. General procedural rules at 26 CFR § 601.101(a)
provide a beginning-point:
(a) General. The Internal Revenue Service is a bureau of
the Department of the Treasury under the immediate direction
of the Commissioner of Internal Revenue. The Commissioner
has general superintendence of the assessment and collection
of all taxes imposed by any law providing internal revenue.
The Internal Revenue Service is the agency by which these
functions are performed...
The fact that there are no regulations extending
Commissioner of Internal Revenue, or Department of the Treasury
authority to the several States (26 U.S.C. § 7802(a)), has
greater clarity in the light of the general merging of functions
between IRS and other agencies presently attached to the
Department of the Treasury. The Commissioner is given
responsibility for issuing rules and regulations for the Code at
26 CFR § 301.7805-1, with approval of the Secretary, but there
are no cites of authority for this CFR subpart, whether Treasury
Order, publication in the Federal Register, or even statute cite.
In other words, there is no actual or effective delegation which
vests the Commissioner with significant independent authority
which might be conveyed to IRS, BATF, Customs or any other
Department of the Treasury agency with respect to powers
extending to or affecting the several States and the population
at large.
The link between IRS and the Bureau of Alcohol, Tobacco and
Firearms is significant as the tie with the Bureau of Internal
Revenue, Department of the Treasury, Puerto Rico, is through this
door. Reorganization Plan No. 3 of 1940, Section 2, made the
following change:
§ 2. Federal Alcohol Administration
The Federal Alcohol Administration, the offices of the
members thereof, and the office of the Administrator are
abolished, and their function shall be administered under
the direction and supervision of the Secretary of the
Treasury through the Bureau of Internal Revenue in the
Department of the Treasury.
Again, the Federal Alcohol Administration Act of 1935 was
declared unconstitutional in 1935, and the operation thereafter
transferred off shore to Puerto Rico. The name of the Bureau of
Internal Revenue was changed to the Internal Revenue Service in
1953 (cite above), then the Bureau of Alcohol, Tobacco and
Firearms, a division of the Internal Revenue Service, was
seemingly separated from IRS (T.O. 120-01, June 6, 1972). In
relevant part, the order reads as follows:
1. The purpose of this order is to transfer, as specified
herein, the functions, powers and duties of the
Internal Revenue Service arising under law relating to
Alcohol, Tobacco, Firearms and Explosives including the
Alcohol, Tobacco, and Firearms division of the Internal
Revenue Service, to the Bureau of Alcohol, Tobacco and
Firearms herein after referred to as the Bureau which
is hereby established. The Bureau shall be headed by
the Director of the Alcohol, Tobacco and Firearms
herein referred to as the Director...
2. The Director shall perform the functions, exercise the
powers and carry out the duties of the Secretary and
the administration and the enforcement of the following
provisions of law:
A. Chapters 51 and 52 and 53 of the Internal Revenue Code
of 1954 and Section 7652 and 7653 of such code insofar
as they relate to the commodity subject to tax under
such chapters.
B. Chapter 61 to 80 inclusive to the Internal Revenue Code
of 1954 insofar as they relate to activities
administered and enforced with respect to chapters 51,
52, 53. (emphasis added)
Transfer of functions and duties of IRS to BATF relative to
Internal Revenue Code Subtitle F (chapters 61 to 80) is important
where the instant matter is concerned as the only regulations
published in the Federal Register applicable to the several
States are under 27 CFR, Part 70 and other parts of this title
relating exclusively to alcohol, tobacco and firearms matters.
However, the charade doesn't end there. In Reorganization Plan
No. 1 of 1965 (5 U.S.C. § 903), the original Bureau of Customs,
created by Act of Congress in 1895, was abolished and merged
under the Secretary of the Treasury.
In a Treasury Order published in the Federal Register of
December 15, 1976, the Secretary of the Treasury used something
of a slight of hand to confuse matters more by determining, "The
term Director, Alcohol, Tobacco, and Firearms has been replaced
with the term Internal Revenue Service."
Obviously, it is impossible to replace a person with a thing
when it comes to administrative responsibility. However, the
order demonstrates that IRS and BATF are one and the same, merely
operating with interchangeable hats. Therefore, definitions and
designations applicable to one are applicable to the other.
In definitions at 27 CFR § 250.11, the following provisions
are found:
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.
In the absence of any other definition describing revenue
officers and agents, the Secretary, or the Department of the
Treasury, definitions above are uniformly applicable to all IRS
and BATF departments, functions and personnel. In fact, it will
be found that even petroleum tax prescribed in Subtitle D of the
Internal Revenue Code applies only to United States territorial
jurisdiction exclusive of the several States and to imported
petroleum. BATF has authority only with respect to firearms,
munitions, etc., produced outside the several States and the
first sale of imports.
To date only three statutes in the Internal Revenue Code of
1986, as currently amended, have been located that specifically
reference the several States, exclusive of the federal States
(District of Columbia, Puerto Rico, Guam, the Virgin Islands,
etc.): 26 U.S.C. §§ 5272(b), 5362(c) & 7462. The first two
provide certain exemptions to bond and import tax requirements
relating to imported distilled spirits for governments of the
several States and their respective political subdivisions, and
the last provides that reports published by the United States Tax
Court will constitute evidence of the reports in courts of the
United States and the several States. None of the three statutes
extend assessment or collections authority for IRS or BATF within
the several States.
IRS is contracted to provide collection services for the
Agency for International Development, and case law demonstrates
that the true principals of interest are the International
Monetary Fund and the World Bank (Bank of the United States v.
Planters Bank of Georgia, 6 L.Ed (Wheat) 244; U.S. v. Burr, 309
U.S. 242; see 22 USCA § 286, et seq.). In other words, IRS
seemingly provides collection services for undisclosed foreign
principals rather than collecting internal revenue for the
benefit of constitutional United States government operation. To
date, IRS principals have failed to dispute the published
Cooper/Bentson allegation that the agency, via these foreign
principals, funded the enormous tank and military truck factory
on the Kama River, Russia.
The Internal Revenue Service, a foreign entity with respect
to the several States, is not registered to do business in the
several States.
2. Preservation of Due Process Rights
The Internal Revenue Service has for years been protected by
statutory courts both of the United States and the several
States, with the latter operating in the framework of adopted
uniform laws which ascribe a federal character to the several
States. Both operate under the presumption of Congress' Article
IV jurisdiction within the geographical United States (the
District of Columbia, Puerto Rico, etc.), both accommodate
private international law under exclusively United States
treaties on private international law, and both operate in the
framework of admiralty rules to impose Civil Law (see both
majority & dissenting opinions variously, Bennis v. Michigan,
U.S. Supreme Court No. 94-8729, March 4, 1996) , which is
repugnant to both state and national constitutions (see authority
of Department of Justice as representative of the "Central
Authority" established by U.S. treaties on private international
law at 28 CFR § 0.49; also, "conflict of law" as a subcategory
to "statutes" in American Jurisprudence). However, this house of
cards will shortly fall as Cooperative Federalism, known as
Corporatism well into the 1930's, has been thoroughly documented
and is rapidly being exposed via state and United States
appellate courts and in public forum.
In reality, the Internal Revenue Code preserves due process
rights, but the statute has been dormant until recently:
[Sec. 7804(b)]
(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.
The reorganization plans of 1950 & 1952 were implemented via
the Internal Revenue Code of 1954, Volume 68A of the Statutes at
Large, and codified as title 26 of the United States Code.
Savings statutes have been in place since the beginning, but
generally not understood by the general population or the legal
profession. The statute set out above is easier to comprehend
when references are consolidated. Further, the dependent clause
"including trial by jury" relates to a constitutionally-assured
right, not a remedy, so it should be moved to the proper location
in the sentence. Finally, the matter of venue is important as
"existing law" is constitutional and common law indigenous to the
several States. In the absence of legitimate federal law which
extends to the several States, those who operate under color of
law, engage in oppression, extortion, etc., are subject to the
foundation law of the States. Venue is determined by the law of
legislative jurisdiction.
Citing "including trial by jury" preserves the full slate of
due process rights included in Fourth, Fifth, Sixth, Seventh and
Fourteenth Amendments to the Constitution for the united States
of America and corresponding provisions in constitutions of the
several States. The example represents the class.
Additionally, note that, (1) actions may issue against bogus
assessments as well as collections, and (2) § 7804(b), unlike §
7433, does not presume that the complaining party is a
"taxpayer". Finally, there is 26 CFR, Part 1 regulatory support
for § 7804 where there are no regulations published in the
Federal Register in support of § 7433 (see Parallel Table of
Authorities and Rules, beginning on page 751 of the Index volume
to the Code of Federal Regulations). Therefore, § 7804(b)
preserves rights and determines the nature of civil actions for
remedies in the several States. When straightened out, applicable
portions of § 7804(b) read as follows:
Nothing in [the Internal Revenue Code] 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 ... The
venue of any such action shall be the same as under existing
law.
The necessity of due process is implicitly preserved by 28
U.S.C. § 2463, which stipulates that any seizure under United
States revenue laws will be deemed in the custody of the law and
subject solely to disposition of courts of the United States with
proper jurisdiction. In other words, even if IRS had legitimate
authority in the several States, the agency would of necessity
have to file a civil or criminal complaint prior to garnishment,
seizure or any other action adversely affecting the life, liberty
or property of any given person, whether a Fourteenth Amendment
citizen-subject of the United States or a Citizen principal of
one of the several States. Due process assurances in the Fifth
and Fourteenth Amendments do not equivocate -- administrative
seizures without due process can be equated only to tyranny and
barbarian rule. Further, even regulations governing IRS conduct
acknowledge and therefore preserve Fifth Amendment assurances at
26 CFR § 601.106(f)(1).
(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. Accordingly, an
Appeals representative in his or her conclusions of fact or
application of the law, shall hew to the law and the
recognized standards of legal construction. It shall be his
or her duty to determine the correct amount of the tax, with
strict impartiality as between the taxpayer and the
Government, and without favoritism or discrimination as
between taxpayers.
Even officers, agents and employees of United States
agencies are assured due process where garnishment is concerned
(5 U.S.C. § 5520a), so the notion that IRS has authority to
execute garnishment and other seizures via the private sector
without due process is clearly absurd. In the English-American
lineage, due process has always been deemed to mean trial by jury
under rules of the common law indigenous to the several States;
the de jure people of America are not subject to admiralty or
administrative tribunals.
In sum, the mandate for due process, meaning initiatives
through judicial courts with proper jurisdiction, is clearly
antecedent to imposition of administratively-issued liens, except
where licensing agreements obligate assets, or seizures, whether
by garnishment, attachment of bank accounts, administrative
seizure and sale of real or private property, or any other
initiative that compromises life, liberty or property.
3. Current Internal Revenue Code
& Internal Revenue Code of 1939 Are Same
Consult 26 U.S.C. §§ 7851 & 7852 to verify that the Internal
Revenue Code of 1954, as amended in 1986 and since, simply
reorganized the Internal Revenue Code of 1939. Read § 7852(b) &
(c), then read the balance of §§ 7851 & 7852 for best
comprehension.
The importance of making this connection rests on the fact
that the Internal Revenue Code of 1939 was merely codification of
the Public Salary Tax Act of 1939. There was no general income
tax levied against the population at large in 1939 or since. The
Public Salary Tax Act of 1939, which in the Internal Revenue Code
of 1939 incorporated the Social Security tax activated after
1936, was premised on the notion that working for federal
government is a privilege. Income and related taxes prescribed in
Subtitles A & C of the current Internal Revenue Code have never
been mandatory for anyone other than officers, agents and
employees of the United States, as identified at 26 U.S.C. §
3401(c), and agencies of the United States, identified at §
3401(d), particularized at 5 U.S.C. §§ 102 & 105.
The privilege tax is an excise rather than direct tax -- the
Sixteenth Amendment, fraudulently promulgated in 1913, did not
alter or repeal constitutional provisions which require all
direct taxes to be apportioned among the several States
(Constitution, Article I §§ 2.3 & 9.4). In Eisner v. Macomber,
252 U.S. 189 (1918), Coppage v. Kansas, 236 U.S. 1, and numerous
decisions since, the United States Supreme Court has repeatedly
affirmed that for purposes of income tax, wages and other returns
from enterprise of common right are property, not income. In
fact, returns from enterprise of common right are fundamental to
all property, and the sanctity is preserved as a fundamental
common law principle dating to signing of the Magna Charta in
1215.
The nature of Subtitles A & C taxes is revealed at 26 CFR §
31.3101-1: "The employee tax is measured by the amount of wages
received after 1954 with respect to employment after 1936..."
In other words, the wage is not the object, but merely the
measure of the tax. This verbiage constitutes so much legalese in
an effort to circumvent the duck test, but the fact that taxes
collected by the Internal Revenue Service fall into the excise
category was confirmed by the Comptroller General's report
following the initial effort to audit IRS (GAO/T-AIMD-93-3). It
is further suggested at 26 CFR § 106.401(a)(2), where the
regulation concedes that, "The descriptive terms used in this
section to designate the various classes of taxes are intended
only to indicate their general character..."
By referencing the Parallel Table of Authorities and Rules,
cited above, it is found that the definition of "gross income" is
still preserved in Section 22 of the Internal Revenue Code of
1939, thus cementing the link between the Code of 1939 and
Subtitles A & C of the Code of 1954, as amended in 1986 and
since. The Internal Revenue Code of 1939 merely codified the
Public Salary Tax Act of 1939. This link is further confirmed in
Senate Committee On Finance and House Committee On Ways and Means
reports on H.R. 8300 (1954, Internal Revenue Code), in which § 22
of the Internal Revenue Code of 1939 and § 61 of the Internal
Revenue Code of 1954 (current code) were solidly linked. Both
reports stipulate that the current definition of "gross income"
is intended to be constitutional.
This intent is articulated at 26 CFR § 1.61-1(a): "Gross
income means all income from whatever source derived, unless
excluded by law."
An "Act of Congress" is policy, not law, and per definition
located in Rule 54, Federal Rules of Criminal Procedure, has only
local application in the District of Columbia and other United
States territories and insular possessions unless general
application is manifestly expressed: Rule 54(c) -- "'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."
Where the Internal Revenue Code of 1954 is concerned (Vol.
68A, Statutes at Large, p. 3), the legislation is in fact styled,
"An Act" "To revise the internal revenue laws of the United
States."
As demonstrated above, wages and other returns from
enterprise of common right are exempt from direct tax by
fundamental law, and the regulation for the current Internal
Revenue Code definition for "gross income" clearly articulates
the fundamental law exemption.
The exemption as it pertains to the several States is
demonstrated by referencing the Parallel Table of Authorities and
Rules (Index volume to the CFR, p. 751 of the 1995 edition):
There are 26 CFR, Part 1 regulations listed for 26 U.S.C. §§ 61 &
62, the latter being the definition for adjusted gross income,
but there is no 26 CFR, Part 1 or 31 regulation for 26 U.S.C. §
63, the definition for taxable income.
While definitions for gross and adjusted gross income are
clearly antecedent to the definition of taxable income, they have
no legal effect if there is no taxing authority -- adjusted gross
income which is not taxable within the several States is of no
consequence where the federal tax system is concerned.
Further, on examination of 26 CFR § 1.62-1, pertaining to
"adjusted gross income", it is found that subsections (a) & (b)
are reserved so the published regulation is incomplete, with
"temporary" regulation § 1.62-1T serving as the current authority
defining "adjusted gross income." Temporary regulations have no
legal effect.
Definitions at § 3401, Vol. 68A of the Statutes at Large
(the Internal Revenue Code of 1954), make it clear that, (§
3401(a)(A)), "a resident of a contiguous country who enters and
leaves the United States at frequent intervals..," is a
nonresident alien of the United States (citizens and residents of
the several States included), and the exclusion from "wages"
extends even to citizens of the United States who provide
services for employers "other than the United States or an agency
thereof" (§ 3401(a)(8)(A)).
4. The Employer or Agent is Liable
Volume 68A of the Statutes at Large, the Internal Revenue
Code of 1954, makes it perfectly clear who is "liable" for
payment of Subtitles A & C taxes:
SEC. 3504. ACTS TO BE PERFORMED BY AGENTS.
In case a fiduciary, agent, or other person has the control,
receipt, custody, or disposal of, or pays the wages of an
employee or group of employees, employed by one or more
employers, the Secretary of his delegate, under regulations
prescribed by him, is authorized to designate such
fiduciary, agent, or other person to perform such acts as
are required by employers under this subtitle and as the
Secretary or his delegate may specify. Except as may be
otherwise prescribed by the Secretary or his delegate, all
provisions of law (including penalties) applicable in
respect to an employer shall be applicable to a fiduciary,
agent, or other person so designated, but, except as so
provided, the employer for whom such fiduciary, agent, or
other person acts shall remain subject to the provisions of
law (including penalties) applicable in respect to
employers.
The liability is further clarified at Vol. 68A, Sec. 3402(d):
(d) TAX PAID BY RECIPIENT. -- If the employer, in violation
of the provisions of this chapter, fails to deduct and
withhold the tax under this chapter, and thereafter the tax
against which such tax may be credited is paid, the tax so
required to be deducted and withheld shall not be collected
from the employer; but this subsection shall in no case
relieve the employer from liability for any penalties or
additions to the tax otherwise applicable in respect to such
failure to deduct and withhold.
These provisions from Vol. 68A of the Statutes at Large
comply with and verify liability set out at 26 CFR, Part 601,
Subpart D in general. Further, territorial limits of application
are made clear by the absence of regulations supporting 26 U.S.C.
§§ 7621, 7802, etc., which are the statutes authorizing
establishment of internal revenue districts and delegations of
authority to the Commissioner of Internal Revenue and assistants.
The fact that the liability falls to the "employer" (26 U.S.C. §
3401(d)) and/or his agent, with no compensation for serving as
"tax collector," narrows the field to federal government entities
as "employers" if for no other reason than the population at
large is not subject to the edict of government officials. As a
matter of course, government cannot compel performance where the
general population is concerned. The subject class that has
"liability" for Subtitles A & C taxes is the "employer" or his
agent, fiduciary, etc., as specified above.
The matter is further clarified in Sections 3403 & 3404 of
Vol. 68A, Statutes at Large:
SEC. 3403. LIABILITY FOR TAX.
The employer shall be liable for the payment of the tax
required to be deducted and withheld under this chapter, and
shall not be liable to any person for the amount of any such
payment.
SEC. 3404. RETURN AND PAYMENT BY GOVERNMENTAL EMPLOYER.
If the employer is the United States, or a State, Territory,
or political subdivision thereof, or the District of
Columbia, or any agency or instrumentality of any one or
more of the foregoing, the return of the amount deducted and
withheld upon any wages may be made by any officer or
employee of the United States, or of such State, Territory,
or political subdivision, or of the District of Columbia, or
of such agency or instrumentality, as the case may be,
having control of the payment of such wages, or
appropriately designated for that purpose.
The territorial application, and limitation, is made clear
by definitions in Title 26 of the Code of Federal Regulations, as
follows:
§ 31.3121(3)-1 State, United States, and citizen.
(a) When used in the regulations in this subpart, 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.
(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.
Definition of the terms "includes" and "including" located
at 26 U.S.C. § 7701(c) provides the limiting authority which the
above definitions, beyond constructive application, are subject
to:
(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.
Two principles of law clarify definition intent: (1) the
example represents the class, and (2) that which is not named is
intended to be omitted. In the definition of "United States" and
"State" set out above, all examples are of federal States, and
are exclusive of the several States, with the transition of
Alaska and Hawaii from the included to the excluded class proving
the point. This conclusion is reinforced by the absence of
regulations which extend authority to establish revenue districts
in the several States (26 U.S.C. § 7621), authority for the
Department of the Treasury [Puerto Rico] in the several States
(26 U.S.C. § 7801), and no grant of delegated authority for the
Commissioner of Internal Revenue, assistant commissioners, or
other Department of the Treasury personnel (26 U.S.C. § 7802 &
7803).
5. Lack of Regulations Supporting General Application of Tax
Here again, the Parallel Table of Authorities and Rules is
useful as it demonstrates that Subtitles A & C taxes do not have
general application within the several States and to the
population at large. The regulation for 26 U.S.C. § 1 refers to
26 CFR § 301, but that amounts to a dead end -- there is no
regulation under 26 CFR, Part 1 or 31 which would apply to the
several States and the population at large. Further, there are no
supportive regulations at all for 26 U.S.C. §§ 2 & 3, and of
considerable significance, no regulations supporting corporate
income tax, 26 U.S.C. § 11, as applicable to the several States.
Where the instant matter is concerned, regulations
supporting 26 U.S.C. § 6321, liens for taxes, and § 6331, levy
and distraint, are under 27 CFR, Part 70. The importance here is
that Title 27 of the Code of Federal Regulations is exclusively
under Bureau of Alcohol, Tobacco and Firearms administration for
Subtitle E and related taxes. There are no corresponding
regulations for the Internal Revenue Service, in 26 CFR, Part 1
or 31, which extend comparable authority to the several States
and the population at large.
The necessity of regulations being published in the Federal
Register is variously prescribed in the Administrative Procedures
Act, at 5 U.S.C. § 552 et seq., and the Federal Register Act, at
44 U.S.C. § 1501 et seq. Of particular note, it is specifically
set out at 44 U.S.C. § 1505(a), that when regulations are not
published in the Federal Register, application of any given
statute is exclusively to agencies of the United States and
officers, agents and employees of the United States, thus once
again confirming application of Subtitles A & C tax demonstrated
above. Further, the need for regulations is detailed in 1 CFR,
Chapter 1, and where the Internal Revenue Service is concerned,
26 CFR § 601.702.
The need for regulations has repeatedly been affirmed by the
Supreme Court of the United States, as stated in California
Bankers Association v. Schultz, 416 U.S. 21, 26, 94 S.Ct. 1494,
1500, 39 L.Ed.2d 812 (1974): "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."
Because there is a citation supporting these statutes
applicable under Title 27 of the Code of Federal Regulations, it
is important to point out that, "Each agency shall publish its
own regulations in full text," (1 CFR § 21.21(c)), with further
verification that one agency cannot use regulations promulgated
by another at 1 CFR § 21.40. To date, no corresponding regulation
has been found for 26 CFR, Part 1 or 31, so until proven
otherwise, IRS does not have authority to perfect liens or
prosecute seizures in the several States as pertaining to the
population at large.
6. Misapplication of Authority
Regulations pertaining to seized property are found at 26
CFR § 601.326:
Part 72 of Title 27 CFR contains the regulations relative to
the personal property seized by officers of the Internal
Revenue Service or the Bureau of Alcohol, Tobacco and
Firearms as subject to forfeiture as being used, or intended
to be used, to violate certain Federal Laws; the remission
or mitigation of such forfeiture; and the administrative
sale or other disposition, pursuant to forfeiture, of such
seized property other than firearms seized under the
National Firearms Act and firearms and ammunition seized
under title 1 of the Gun Control Act of 1968. For disposal
of firearms and ammunition under Title 1 of the Gun Control
Act of 1968, see 18 U.S.C. 924(d). For disposal of
explosives under Title XI of Organized Crime Control Act of
1970, see 18 U.S.C. 844(c).
The only other comparable authority thus far found pertains
to windfall profits tax on petroleum (26 CFR § 601.405), but once
again, application is not supported by regulations applicable to
the several States and the population at large.
Where the mandate for filing 1040 returns is concerned, the
only regulatory reference presently known is at 26 CFR §
601.401(d)(4), and this application appears related to
"employees" who work for two or more "employers", receiving
foreign-earned income effectively connected to the United States.
The mandate is mentioned in instructions applicable to United
States citizens and residents of the Virgin Islands, but to date
has not been located elsewhere. Reference OMB numbers for §
601.401, listed on page 170, 26 CFR, Part 600-End, cross
referenced to Department of Treasury OMB numbers published in the
Federal Register, November 1995, for foreign application.
The "notice of levy" instrument forwarded to various third
parties is not a "levy" which warrants surrender of property. The
Internal Revenue Code, at § 6335(a), defines the "notice"
instrument by use -- notice is to be served to whomever seizure
has been executed against after the seizure is effected. In
short, the notice merely conveys information, it is not cause for
action. The term "notice" is clarified by definition in Black's
Law Dictionary, 6th Edition, and other law dictionaries. Use of
the "notice of levy" instrument to effect seizure is fraud by
design.
Proper use of the "notice" process, administrative
garnishment, et al., is specifically set out in 5 U.S.C. § 5514,
as being applicable exclusively to officers, agents and employees
of agencies of the United States (26 U.S.C. § 3401(c)). Even
then, however, the process must comply with provisions of 31
U.S.C. § 3530(d), and standards set forth in §§ 3711 & 3716-17.
In accordance with provisions of 26 CFR, Part 601, Subpart D, the
employer, meaning the United States agency the employee is
employed by, is responsible for promulgating regulations and
carrying out garnishment.
7. Liability Depends on a Taxing Statute
General demands for filing tax returns, production of
records, examination of books, imposition and payment of tax,
etc., are of no consequence to the point a taxing statute (1)
defines what tax is being imposed, and (2) the basis of
liability. In other words, even if the Internal Revenue Service
was a legitimate agency of the United States Department of the
Treasury and had authority in the several States, the Service
would have to be specific with respect to what tax was at issue
and would have to demonstrate the tax by citing a taxing statute
with the necessary elements to establish that any given person
was obligated to pay any given tax.
This mandate has been clarified by the courts numerous
times, with the matter definitively stated by the Tenth Circuit
Court of Appeals in 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.
In other words, to the point Service personnel produce the
statute which mandates a certain tax and which specifies, "...
the transaction, service, or object to be taxed..," the burden of
proof lies with the Government, with the consequence being that
no obligation or civil or criminal liability can ensue to the
point a taxing statute that meets the above requirements is in
evidence.
This conclusion is supported by the statute which provides
the underlying requirements for keeping records, making
statements, etc., located at 26 U.S.C. § 6001:
Every person liable for any tax imposed by this title, or
for 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
employee 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 section 6053(a).
The control statute for Subtitle F, Chapter 61, Subchapter
A, Part I, concerning records, statements, and special returns,
clearly returns the matter to the "employee" defined at §
3401(c), and the "employer" defined at § 3401(d). In general,
however, (1) the Secretary must provide direct notice to whomever
is required to keep books, records, etc., as being the "person
liable," or (2) specify the person liable by regulation. In the
absence of notice by the Secretary, based on a taxing statute
which makes such a person liable according to provisions
stipulated in United States v. Community TV, Inc., Hassett v.
Welch, and other such cases, or regulations which specifically
set establish general liability, there is no liability.
Sec. 6001 also exempts "employees" from keeping records
except where tips and the like are concerned. This is consistent
with constructive demonstration that "employers" rather than
"employees" are required to file returns, as opposed to paying
deducted amounts as income tax returns, constructively
demonstrated in a previous section of this memorandum and
specifically articulated in 26 CFR § 601.104. Clarification via
26 U.S.C. § 6053(a) is as follows:
(a) REPORTS BY EMPLOYEES. -- Every employee who, in the
course of his employment by an employer, receives in any
calendar month tips which are wages (as defined in section
3121(a) or section 3401(a)) or which are compensation (as
defined in section 3231(e)) shall report all such tips in
one or more written statements furnished to his employer on
or before the 10th day following such month. Such statements
shall be furnished by the employee under such regulations,
at such other times before such 10th day, and in such form
and manner, as may be prescribed by the Secretary.
Unraveling § 6001 straightens out the meaning of § 6011,
which requires filing returns, statements, etc., by the person
made liable (§ 3401(d)), as distinguished from the person
required to make returns (payments) at § 6012 (§ 3401(c)). Even
though a person might be a citizen or resident of the United
States employed by an agency of the United States, and thereby be
required to return a prescribed amount of United States-source
income, he is not the person liable under § 6011 and attending
regulations.
The "method of assessment" prescribed at 26 U.S.C. § 6303 is
therefore dependent on the taxing statute and must rest on
authority specifically conveyed by a taxing statute which
prescribes liability where the Secretary (1) has provided
specific notice, including the statute and type of tax being
imposed, or (2) supports assessment by regulatory application. In
the absence of one or the other, an assessment by the Secretary
is of no consequence as it is not legally obligating.
The requirement for the Secretary to provide notice to
whomever is responsible for collecting tax, keeping records,
etc., is clarified at 26 CFR § 301.7512-1, particularly
(a)(1)(i), relating to "employee tax imposed by section 3101 of
chapter 21 (Federal Insurance Contributions Act)," and
(a)(1)(iii), relating to "income tax required to be withheld on
wages by section 3402 of chapter 24 (Collection of Income Tax at
Source on Wages)..." The person liable is the employer or the
employers, agent, and of particular significance, it is this
"person" who is subject to civil and particularly criminal
penalties (26 CFR § 301.7513-1(f); 26 CFR §§ 301.7207-1 &
301.7214-1, etc.). Officers and employees of the United States
are specifically identified as being liable at 26 U.S.C. §
301.7214-1.
The matter of who is required to register, apply for
licenses, or otherwise collect and/or pay taxes imposed by the
Internal Revenue Code is ultimately and finally put to rest under
"Licensing and Registration", 26 U.S.C. §§ 301.7001-1, et seq.
Each of the categories so addressed has liability based on some
particular taxing statute which creates liability.
8. The Necessity of Administrative Process
The requirement for a specific taxing statute, with 26
U.S.C. § 6001 clearly providing the first leg in necessary
administrative procedure to determine liability, was addressed at
length in Rodriguez v. United States, 629 F.Supp. 333 (N.D.Ill.
1986). Presuming: (1) the Secretary has provided the necessary
notice, or (2) a regulation prescribes general application which
makes any given person liable for a tax and requires tax return
statements to be filed, each step in administrative process
prescribed by 26 U.S.C. §§ 6201, 6212, 6213, 6303 and 6331 must
be in place for seizure or any other encumbrance to be legal.
Here again, regulations published in the Federal Register
are significant, with provisions of 5 U.S.C. § 552 et seq., 44
U.S.C. § 1501 et seq., 1 CFR, Chapter I, and 26 CFR, Part 601 all
supporting the mandate for regulations to be published in the
Federal Register before they have general application. It will be
noted by referencing the Parallel Table of Authorities and Rules,
beginning on page 751 of the 1995 Index volume to the Code of
Federal Regulations, that application by regulation to the
several States is only under Title 27 of the Code of Federal
Regulations, or that there are no regulations published in the
Federal Register. The following entries, or non-entries, are
found:
26 USC 6201 Assessment authority 27 C.F.R., Part 70
26 USC 6212 Notice of deficiency No Regulation
26 USC 6213 Restrictions applicable to
deficiencies; petition to
Tax Court No Regulation
26 USC 6303 Notice and Demand for Tax 27 C.F.R., Part 53, 70
26 USC 6331 Levy and distraint 27 C.F.R., Part 70
The assessment authority under 26 U.S.C. § 6201, in relevant
part as applicable to Subtitles A & C taxes, are as follows:
(a) AUTHORITY OF SECRETARY. -- The Secretary is authorized
and required to make the inquires, determination, 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 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 assess
all taxes determined by the taxpayer or by the Secretary as
to which returns or lists are made under this title. ...
(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 or 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 EMPLOYMENT 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. ...
(d) DEFICIENCY PROCEEDINGS. --
For special rules applicable to deficiencies of income,
estate, gift, and certain excise taxes, see subchapter B.
[emphasis added]
The grant of assessment authority with respect to taxes
prescribed in Subtitles A & C is limited to provisions set out
above even where the Service might have authority relating to
those made liable for the tax, meaning the "employer" specified
at 26 U.S.C. § 3401(d). Clearly, returns made either by the agent
of the United States agency required to file a return, or the
Secretary, are to be evaluated mathematically, and errors are to
be treated as clerical errors, nothing more. The Secretary has no
authority to assess estimated income tax (individual estimated
income tax at § 6554; corporation estimated income tax at §
6655), or unemployment tax ( § 6157). For all practical purposes,
the trail effectively ends here.
9. The Impossibility of Effective Contract/Election
In order for there to be an opportunity for a nonresident
alien of the United States (a Citizen of one of the several
States) to elect to be taxed or treated as a citizen or resident
of the United States, one or the other of a married couple, or
the single "individual" making the election, must be a citizen or
resident of the United States (26 U.S.C. § 6013(g)(3)). Some
party must in some way be connected with a "United States trade
or business" (performance of the functions of a public office (26
U.S.C. § 7701(a)(26)). A nonresident alien never has self-
employment income (26 CFR § 1.1402(b)-1(d)). In the event that a
nonresident alien is an "employee" (26 U.S.C. § 3401(c)), the
"employer" (26 U.S.C. § 3401(d)) is liable for collection and
payment of income tax (26 CFR § 1.1441-1). And in order for real
property to be treated as effectively connected with a United
States trade or business by way of election, it must be located
within the geographical United States (26 U.S.C. § 871(d)).
Provisions cited above preclude any and all legal authority
for Citizens of the several States, or privately owned enterprise
located in the several States, to participate in federal tax and
benefits programs prescribed in Subtitles A & C of the Internal
Revenue Code and companion legislation such as the Social
Security Act which provide benefits from the United States
Government, which is a foreign corporation to the several States.
Summary & Conclusion
Again, this memorandum is not intended to be exhaustive, but
merely sufficient to support causes set out separately. The most
conspicuous conclusions of law are that Congress never created a
Bureau of Internal Revenue, the predecessor of the Internal
Revenue Service; Subtitles A & C of the Internal Revenue Code
prescribe excise taxes, mandatory only for employees of United
States Government agencies; the Internal Revenue Service, within
the geographical United States where the agency appears to have
colorable authority, is required to use judicial process prior to
seizing or encumbering assets; and the law demonstrates that the
people of the several States, defined as nonresident aliens in
the Internal Revenue Code, cannot legitimately elect to be taxed
or treated as citizens or residents of the United States. If a
Citizen of one of the several States works for an agency of the
United States or receives income from a United States "trade or
business" or otherwise effectively connected with the United
States, the employer or other third party responsible for payment
is made liable for withholding taxes at the rate of 30% or 14%,
depending on classification.
To the best of my knowledge and understanding, matters of
fact and law set out above are accurate and true.
Dan Meador (May 14, 1996)
# # #
Return to Table of Contents