There are three essentials to a case or controversy that goes before a
court, or that must be resolved in an administrative due process forum.
First is facts of any given circumstance or event. Unless or until we
have facts in place, there is nothing a judicial officer can consider.
In all cases, facts must be verified by a competent witness.
Consider a criminal trial. The prosecuting attorney might load the
evidence table with the gun a murder was committed with, empty shell
casings, and all manner of evidence. Yet until he puts a witness on the
stand who qualifies as an expert witness or a witness who has first-hand
knowledge of facts relating to the case, he has nothing.
The same is true with traffic tickets, tax disputes or anything else.
Unless or until there is a competent witness who verifies facts via
testimony, there is no evidence before the trier of fact, whether the
trier is a judicial officer or a jury.
Testimony can be submitted by (1) affidavit, (2) deposition, or (3)
direct oral examination.
When an attorney addresses a court, what he has to say does not qualify
as testimony. He might argue points of law, procedure, the credibility
of witnesses and other such matters, but he is not a competent witness.
Next, law has to be established. Opposing parties each submit what they
believe the law is. Where there is disagreement concerning law, a
judicial officer is usually responsible for declaring what the law is.
Once these two essentials are in evidence or on the record, it is
necessary to prove application of law to the facts.
Here is a question that might give people involved in tax matters cause
for thought: Is a revenue agent a competent witness with first-hand
knowledge of facts necessary to verify a tax liability?
In most cases, no. The revenue agent works primarily from declaratory
documents submitted by third parties. The revenue agent normally doesn't
have first-hand knowledge of the fact circumstance of the third party or
what underlying presumptions the declarations are predicated on.
Therefore, the third party responsible for submitting any given document
is the competent witness, not the revenue agent.
Most people who are confronted with tax issues engage the argument
somewhere down the line rather than going to the genesis of the
situation. For example, when someone receives a notice of deficiency, he
might take the matter to Tax Court to argue about deductions and the
like rather than asking obvious questions: Am I liable for Federal
income tax to begin with, and if so, which one? What authority does IRS
have to administer the tax that I allegedly owe? What evidence of
liability does IRS have, and what witness with first-hand knowledge of
facts does IRS have?
Somewhat the same thing happens when IRS attempts to foreclose notices
If we were riding a train from New York to Los Angeles, a lien
foreclosure would probably be at Phoenix. In other words, the victim is
routinely deprived of most due process rights via what amounts to
Tim Richardson of Oregon helped my orientation with two or three
pleadings that focused on due process rights, particularly those secured
by the Sixth Amendment: We are entitled to know the nature and cause of
action, we are entitled to confront adverse witnesses, and we are
entitled to compel testimony. Yet because of IRS' routine fraudulent
procedure, victims are invariably deprived of these rights. If they were
on the train when it left Grand Central Station, they didn't see the
light of day until it pulled into the Phoenix station.
Seldom does the victim know the "nature" of the action. In other words,
what are the taxing and liability statutes, along with implementing
regulations? What makes him a person liable?
And who is IRS' competent witness with first-hand knowledge of facts?
Has there been a procedurally proper assessment, which is a minimum
requirement for a Federal tax lien to be legitimate?
The civil action to enforce a Federal tax lien leaves these questions in
the murky area of presumed fact. And if you didn't raise the issues or
establish fact contrary to that presumed by the lien, the judicial
officer will probably do everything possible to prevent you from raising
the issues in the foreclosure action.