NO PRESUMPTION OF LIABILITY

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(Background)

A Motion in Limine is used to request the court to prevent the presentation of evidence to the jury that may be deemed prejudicial or inflammatory. A sustaining or denial of the motion does not remove the necessity of objecting if the evidence, or improper jury instructions, are being presented, but they do convey some of the legal grounds to the court in advance. Objections are essential to preserve appeal.

Evidence of the filing of tax forms by defendants is a common practice by the IRS/DOJ to claim the defendant was aware of a legal necessity to file. The courts have additionally made presumptions of legal liability upon various claims. Perhaps this motion may be helpful in correcting the practice. This motion should not exclude the filing of a motion to dismiss the indictment as presented in the Triallog.com posting mentioned.

Court caption


MOTION IN LIMINE TO AVOID AN ERRONEOUS PRESUMPTION OF LEGAL LIABILITY VIA IMPROPER EVIDENCE

The defendant hereby Moves this court to avoid an erroneous presumption of legal liability without the Plaintiff having conclusively evidenced the specific statute that imposes legal responsibility for any tax in question upon the defendant.

Presumptions are well established for issues of fact. There is no presumption permitted for the clear and precise identification of a statutory legal duty within criminal or civil process. Internal Revenue statutes are subject to general rules of statutory construction. US v. Zacks, 375 US 59.

The plaintiff may attempt to claim the defendant's signature on tax forms from prior years is sufficient to presume the defendant knew he was legally responsible for a tax. The defendant does not have qualification to certify or acknowledge legal responsibility. The defendant's signature can only be used as they relate to his first-hand knowledge of numerical values declared on the tax form---as the defendant relied upon government claims of liability via various publications. The defendant's reliance upon government claims at the time of signing cannot be used as a presumption of acceptance of legal liability.

Subsequent research by the defendant has cast doubt upon the government's claim. No clear and convincing authority imposing legal responsibility has been found by the defendant. If the plaintiff is unable to document statutory authority for a legal responsibility, the wide-spread claims by the IRS for many years that appear to be unsupported by statute would evidence a clear case of fraud. The use of fraud vitiates any agreement or document.

Nor should the court assume the existence of an unidentified regulation is sufficient to impose/presume liability for a tax. Not only is it well established that regulations cannot expand the imposition of a tax, but due process clearly mandates a defendant must be confronted with the statutory authority that imposes a tax within the indictment and be permitted to contest the accusation with the burden of proof upon the movant.

Nor should self-serving averments in the movant's process that the defendant is a "taxpayer" be sufficient to authorize the presumption of legal responsibility. "Taxpayer" is a legally defined status within the IRC that is specifically challenged by the defendant and has not been proven by the movant. It is well established that only taxpayers are subject to the provisions of the IRC. Until the movant alleges a clear and definitive statute making the defendant subject to a specific tax, the IRC is inapplicable to the defendant. Statutes that claim "taxpayers must do thus and thus" do not identify who is a required taxpayer.

Nor should the court be misled by a government claim that liability is to be determined by the production of any sought books and records. The potential determination of any liability by values produced by the defendant is a liability of fact that is determined as a result of litigation. A liability by law must be determined prior to litigation is the object of this Motion. The equity power of this court to compel the production of books or records or to issue an injunction exists only after a lawful duty for a tax has been evidenced by statute. Lewyt v. CIR, 349 US 237; Stockwell v. CIR, 736 F2d 1051 (5th. cir. 1984).

It is accepted that there is a presumption of the validity of an identified statute. There is no authority for the presumption of the existence of an unidentified statute. The defendant has a right to be confronted with the specific statute imposing a known legal duty (United States v. Pomponio, 429 US 10; Cheek v. US, 498 US 192) and to have the statute submitted to contestation with the burden of proof upon the movant for any tax being pursued. Civil cases are not relieved of that burden. Morgan v. U.S., 304 U.S. 1, 18 (1938); Coe v. Armour Fertilizer, 237 US 413, 423-425; Unitarian Church v. Los Angeles, 357 US 545. It is the responsibility of government to prove the existence of a tax being pursued; a citizen is not required to prove the nonexistence of a tax. Spreckles Sugar v. McClain, 192 US 397. "An indictment must include all of the essential elements of the crimes alleged therein… To properly proceed with a prosecution, the government must allege conduct violative of a federal statute." US v. Miller, 471 US 130.

Any reliance by the plaintiff upon IRC #7201 through 7215 to identify the required legal duty is poorly placed. It is well established that Chapter 75, Part 1, of the Internal Revenue Code (IRC Sections 7201 through 7215) does not identify a lawful duty for any specific tax. In Sansone v. United States, 380 US 343, at page 348, the court relied upon the Congressional Record to observe Chapter 75, Part 1 applies to ALL taxes collected by the IRS. Therefore, those statutes cannot be construed to refer to a duty for any specific tax.

As cumulative evidence, Chapter 75, Part 1 has been used by the courts in applications for a multitude of various responsibilities in numerous tax prosecutions.

It is well established the essential substantive issues required in an indictment cannot be supplemented, orally or in writing, by the prosecutor. Nor is a court at liberty to rely upon a statute, nor to add a statute, that has not submitted to contestation within the indictment.

It is specifically moved that any evidence or instructions to the jury that claims or implies Chapter 75, Part 1 of the IRC imposes legal liability upon the defendant be forbidden.

It is further moved that this court forbid the use of any prior tax forms from being presented to the jury for the purpose of implying or evidencing an acceptance or acknowledgment of legal responsibility.


[Several pages of cases other than individual income tax cases are available from the Motion to Dismiss the Indictment RTF file attached at Triallogs.com, income tax laws posted HERE

They should be incorporated as desired.

In addition, #7201 has been used to prosecute an evasion of corporate employment taxes. US v. Gonzales, 58 F3d 506 (10th. Cir, 1995).

#7203 has been used to prosecute the non-filing of forms for corporate taxes. US v. Neal, 93 F3d 219 (6th. Cir. 1996).

#7204 and #7206 has been used in prosecuting the submission of false employment forms. Huges v. US, 899 F2d 1495 (6th. Cir. 1970). ]


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