Reference Material served in the public interest - For Information Only!



From an actual court case

 

To induce a party to their injury by specie of silence, or misinformation or disinformation is fraud plain and simple. 

 

A. FACTS

1. The Plaintiff Demanded and paid for a Jury Trial. 

2. The Demand for Jury Trial has been ignored. 

3. September 3, xxxx, (Bank Name Removed) stated they had received service of an IRS Levy and they did not and that is fraud. 

4. The defendants can not and will not show copy of the Judgment signed by a Court of Record against (Actual Name Removed).This is fraud when they say it is not required. 

5. (Bank Name Removed) Banks states they were served a Levy but can not and will not give the name of the U S Marshall and badge number (Title 28) who delivered the Court Order against (Actual Name Removed). This is fraud when they say it is not required. 

6. (Bank Name Removed) Banks states they were served a Levy but can not and will not give the name and the delegation of authority of the person that signed the levy. This is fraud when they say it is not required. 

7. (Bank Name Removed) Banks states they were served a Levy but can not and will not give the name and the power of attorney of the person that signed the levy.This is fraud when they say it is not required. 

8. (Bank Name Removed) Banks states they were served a Levy but can not and will not give copies of what statute and implementing regulations that (Bank Name Removed) Bank and the IRS acted under in taking the property of (Actual Name Removed).This is fraud when they misquote the law. 

9. (Bank Name Removed) Banks states they were served a Levy but can not and will not give copies of the garnishment paper work received per the garnishment laws of the state of Michigan in the name of (Actual Name Removed). This is fraud when they say it is not required. 

10. (Bank Name Removed) Banks will not give copies copy of the authority to change the name on the check due (Actual Name Removed) and write another payee. This is fraud and forgery when they say it is not required. 

11. (Bank Name Removed) Banks can not and will not give copies proof that permission was given by (Actual Name Removed) to turn over funds to a third party.This is fraud by speech of silence. 

12. (Bank Name Removed) Banks can not and will not give copies copy of the notice and demand for payment Form 17A from the IRS to (Bank Name Removed) Bank. This is fraud when they say it is not required. 

13. (Bank Name Removed) Banks can not and will not give copies copy of the notice of seizure taking property rightfully owned by (Actual Name Removed).This is fraud when they say it is not required. 

14. (Bank Name Removed) Banks can not and will not give copies of lien applied to (Actual Name Removed). This is fraud when they say it is not required. 

15. (Bank Name Removed) Banks can not and will not give copies of the levy applied to (Actual Name Removed).This is fraud when they say they have a Levy when they do not. 

16. (Bank Name Removed) Banks can not and will not give show where proper notice was given by the IRS to (Actual Name Removed) to seize his property held by (Bank Name Removed) Bank. This is fraud when they say it is not required. 

17. (Bank Name Removed) Banks can not and will not give a copy of the IRS LEVY against (Actual Name Removed) that was served upon (Bank Name Removed) Bank per letter dated September 3, xxxx. This is fraud when they say they have a Levy when they do not. 

18. (Bank Name Removed) Banks can not and will not give copies of the Writs of Attachment against (Actual Name Removed) served upon (Bank Name Removed) Bank for property. This is fraud when they say it is not required. 

19. (Bank Name Removed) Banks can not and will not give copies of Writs of Garnishment against (Actual Name Removed) served upon (Bank Name Removed) Bank for property.This is fraud when they say it is not required. 

20. (Bank Name Removed) Banks can not and will not give copies of the final notice of intent to levy and proof of service that it was served on (Actual Name Removed). This is fraud when they say it is not required. 

21. (Bank Name Removed) Banks will not give copies of the corporate charter of (Bank Name Removed) Bank.This is fraud by speech of silence. 

22. (Bank Name Removed) Banks will not give copies of (Bank Name Removed) Banks company policy dealing with a levy against (Actual Name Removed). This is fraud by speech of silence. 

23. (Bank Name Removed) Banks will not give copies of the names, address and phone # of all corporate officials of (Bank Name Removed) Bank responsible for this action. This is fraud by speech of silence. 

24. (Bank Name Removed) Banks will not give copies any and all data referring to (Actual Name Removed) and/or Case No. DC 3-98-1082-GC either electronic or by other means, including but not limited to memo's, faxes, conversations by you or their counsel, with the IRS or any other person or company.This is fraud by speech of silence. 

25. Things that are different are not the same. Misrepresentation is fraud. 

26. Form 668-B is a Levy. 

27. Form 668-A is a Notice of Levy. 

28. Form 668-W is a Notice of Levy on Wages, Salary, and Other Income. 

29. The grammar rules were misapplied as related to notice of levy.A notice of levy is a notification of levy not a "Notice of Levy" Form 668-A. Misrepresentation is fraud. 

30. The only form the defendants have made available is a Form 668-W "Notice of Levy on Wages, Salary, and Other Income". The defendants continually misrepresent and misuse the Forms to their benefit and that is fraud

31. The defendants, (Bank Name Removed) Bank, were given Notice September 14, 20xx not to inappropriately turn over money in my account to the Internal Revenue Service (IRS) without court order, without legal obligation and without my permission. This is fraud by conversion, bank fraud, embezzlement, uttering and publishing and forgery

32. (Bank Name Removed) Bank was put on Notice that they may not forward any funds to the "IRS" "without my permission". I did not give (Bank Name Removed) Bank my permission to forward any funds to the "IRS. This is fraud by conversion, bank fraud, embezzlement, uttering and publishing and forgery.

33. (Bank Name Removed) Bank was advised on September 14, 20xx Per Code Section 6332(a), the IRS must obtain a court order in all seizures

34. (Bank Name Removed) Bank voluntarily gave the property of (Actual Name Removed) to a third party without court order, without legal obligation and without my permission

35. (Bank Name Removed) Bank does not have a claim of immunity.Per statute (26 U.S.C. section 6332 (e) and case law, a bank is provided immunity if it honors an IRS levy. However, in this case and (Bank Name Removed) Bank were merely sent a "Form 668-W Notice of Levy on Wages, Salary, and Other Income"; consequently, the law providing for immunity when releasing funds pursuant to a "Levy" is not applicable

36. (Bank Name Removed) Bank knowingly and willfully be violated my "due process" rights as guaranteed to me under the Constitutions of the United States of America and the State of Michigan and laws made thereunder. 

37. When the government seeks to enforce the laws, it must follow the steps which congress has specified Reece, 506 F2d at 971. A mere notice of intent to levy does not meet this requirement.

38. In Freemen v. Mayer, 152 F. supp, 383 at 385 (D.C., N.J. 1957) the court stated: A "levy" requires property be brought into legal custody through seizure, actual or constructive, levybeing an absolute appropriation in law of the property levied on, and mere Notice of Intentto Levy is insufficient

39. U.S.  v. O'Dell, 6th Cir.(1947), 160 F2d, 304, 307. Accod, In re Holdsworth, D.C., N.J. 1953, 113 F. Supp 878, 888; U.S. v. Aetna Life Insurance Company of Hartford, Conn., D.C. Conn., 1942, 146 F. Supp. 30, 37, in which Judge Hincks observed that he could "find no statute which says that a mere notice shall constitute a levy". 

40. There are cases, which hold a warrant for distraint is necessary to constitute a levy. Givan v. Cripe, 7th Cir., 1951, 187 F2d., 225; U.S. v. O'Dell, supra.

41. The Court of Appeals for the Third Circuit stated in its opinion 221 F2d. at page 642, "these sections [26 U.S.C. sections 3690-3697] require that a levy by a deputy collector be accompanied by warrants of distraint." In re Brokol Manufacturing Co., Supra

42. The Court ignored the Defendants Contempt Of Court and refused the Claim of Default and did not GIVE NOTICE OF DEFAULT TO Defendants. The Plaintiff had to request the Court to Compel Discovery and the Defendants still refused to grant the Discovery and to this date the Defendants still have not granted requested and Ordered Discovery. 

43. The Court granted the Motion To Compel Discovery but did not enforce the ruling. 

44. No HEARING OR EVIDENTIARY HEARING was held so the Plaintiffs could get their needed vital discovery for the case. 

45. A Motion To Quash The Defendant's Summary Judgment for obvious cause to include Fraud And Institutional Bad Faith And Denial Of Due Process Rights And Further Plaintiffs Motion For Summary Judgment was ignored even though the Defendants could NOT POSSIBLY PREVAIL ON THE MERITS DUE TO INSTITUTIONAL BAD FAITH, DEFAULT AND CONTEMPT OF COURT FOR FAILURE TO FOLLOW THE ORDERS OF THIS HONORABLE COURT. 

46. Per Michigan Court Rules the Honorable Judge (Judges Name) had no right to issue a Summary Judgment when the Defendant was in Default and in Contempt of Court and committed Perjury. 

47. The Defendant walked out of Court in disgust while the Judge was still talking and the court was still in Session while addressing the Court.The Defendants Counsel should have been sanctioned yet the judge decided to ignore the rudeness and continued the session with the Plaintiff. 

48. Clearly the Court knew or should have known that his Honor (Judges Name) issued and Order Compelling Discovery Of All Reasonable Requested Discovery To The Defendants and clearly this was to be done within (14) days.The record is very clear as evidenced by the Court docket file which clearly shows that the Defendants did not comply with the ORDER OF THE COURT WITHIN THE (14) days as was ORDEred AND AGREED UPON.

49. There was no copy of a "LIEN" or "LEVY" or JUDGMENT OF A COURT OF RECORD SIGNED BY A JUDGE AS IS REQUIred BY LAW applying to Mr. (Actual Name Removed) and consequently the Defendants claim this is all the discovery they are Lawfully in possession of.In fact, this goes to prove that no authority ever existed to take or seize the Lawfully owned property of (Actual Name Removed) and in fact it shows a blatant disregard for fiduciary trusts and Michigan Court Rules and especially MCR 3.101(f) and (g) dealing with GARNISHMENT PROCEDURES. 

50. Clearly the Defendants were IN CONTEMPT of the HONORABLE COURTS LAWFUL orders and is also at the same time denying the Plaintiff DUE PROCESS OF LAW RIGHTS TO DISCOVERY and clearly the Defendants are were IN DEFAULT for such Institutional Bad faith not to mention out and out Fraud.The Plaintiffs have a Right to DISCOVERY and the Defendants have claimed all along they have a "LEVY" against the Plaintiff's Lawfully owned property.Fine!!!!The Court refused to force the Defendants to PRODUCE THE ACTUAL LEVY DEFENDANTS CLAIM because to date no such document has been lawfully served upon the plaintiff as is required by the Michigan Court Rules 3.101 (f) and (g) dealing with GARNISHMENT PROCEDURE AND SERVICE OF SUCH PROCESS.The Plaintiff PRAYS THAT THE COURT WILL COMMAND THE DEFENDANTS TO TAKE AND EVIDENTIARY HEARING TO BRING FORTH THE DISCOVERY ALREADY ORDEred by the District Court and not enforced. 

51. The Plaintiff contends that no such "LEVY" exists and is FRAUDULENTLY CLAIMED BY THE DEFENDANTS TO COVER UP THEIR FRAUDULENT SEIZURE OF THE Plaintiff's Lawfully owned property.Clearly these learned Counselors for Defendants and the HONORABLE (JUDGES NAME) have heard of GARNISHMENT RULES especially MCR 3.101(f) and (g) dealing with GARNISHMENT PROCEDURES. 

52. The Defendants did not follow any Lawful process to seize the Plaintiff's Lawfully owned property without a Judgment or Lien or Levy lawfully signed by a Judge of a Court of Record.How could HONORABLE (JUDGES NAME) allow this to happen?Especially since it was brought to the Court attention by the Plaintiff. 

53. The HONORABLE (JUDGES NAME) asked the Defendant's attorney if he was going to submit a Summary Judgment. Is the Court in the practice if advising or consulting the opposing counsel on what to do to win the case?

54. Every Request made to the Count stated ORAL ARGUMENT REQUESTED and none were granted.

 

B. FRAUD

1. Fraud is defined in Black's Law Dictionary on page 660:

"An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representationof a matter of fact, whether by words or by conduct, by false or misleadingallegations, or by concealment of that which should have been disclosed,which deceives and is intended to deceive another so that he shall act upon itto his legal injury. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or innuendo, by speech of silence, word of mouth, or look or gesture.Delanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 464 A.2nd 1243, 1251. A generic term, embracing all multifarious Means which human ingenuity can devise, and which are resorted to by oneIndividual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and Unfair way by which another is cheated. Johnson v. McDonald, 170 Okl. 117, 39 P.2nd 150. "Bad Faith" and "fraud" are synonymous, and also synonyms of dishonesty, infidelity, faithlessness, perfidy, unfairness, etc. 

 

2. I wish to express my serious CONSTRUCTIVE OBJECTIONS to the ARBITRARY AND CAPRICIOUS manner in which my case has been handled to date. I honestly feel the Court and Defendant(s) have perpetrated a FRAUD IN FACT AND LAW against me, andmy Lawfully owned property and I am giving you Lawful and CONSTRUCTIVE NOTICE of my serious intent to seek legal action to redress my just and Lawful grievances. You are given this NOTICE OF LIS PENDENS. Clearly you knew or should have known as well schooled Officers of the Law, long schooled in the art and practice of Law, that you have induced me to my injury or IRREPERABLE HARM by a specie of misinformation, disinformation or a SPECIE OF SILENCE, wherein you have used all manner of colorable officialdom to make false and FRAUDULENT ACTIONS against me, personally or against my Lawfully owned property, which is in total violation of LAW.Please see U.S. vs. Prudden, 424 F2d 1021,and U.S. vs. TWEEL, 550 F2d 297 at 299-300, which cases held:

"Silence can only be equated with FRAUD when there is a legal and moral duty to speak the truth or when an inquiry left unanswered would be intentionally misleading to the injury of the parties."

 

3. Further, In Re:Dunahay vs. Struzik 393 P2d. 930 (1964) 96 Arizona 246, which held:

"FRAUD may be committed by a failure to speak when the DUTY ( Res ipsa loquitur, with exclusive control emphasis added mine) of speaking is imposed". 

 

4. Further, In Re: Batty vs. Arizona State Dental Board, 112 P 2d 870, 57 Arizona 239 (1941) which case held:

"FRAUD" may be committed by a failure to speak when the DUTY of speaking is imposed as much as by speaking falsely"

 

5. Further, In Re: State vs. Coddington, 662 P.2d 155 135 Ariz. 480 Ariz App. (1983) which case held:

"When one conveys a false impression by disclosure of some facts and the concealment of others, such concealment is in effect a false and FRAUDULENT representation that what is disclosed is the whole truth and nothing but the truth."

 

6. I can go on and on "Suppression of a material fact which a party is bound in good faith to disclose is equivalent to a false or FRAUDULENT representation. 

"Please see Leigh vs. Loyd 244 P.2d 356, Ariz 84 (1952) case and further" When one conveys a false impression by disclosure FRAUD OR DECEIT may arise from silence where a duty to SPEAK THE TRUTH, as well as from speaking an untruth."Please see Morrison vs. Acton, 198 P.2d 590, 68 Ariz. 27 (1948) case. Now these cases go on and on and literally books could be written on this very subject. The facts are very clear, that when such activities of misinformation or disinformation or a specie of silence, whose clear purpose is to mis-inform or dis-inform a party of the real fact and Law, then a FRAUD HAS BEEN PURPITRATED, especially if a party has relied in good faith on such to their injury than a clear fraud has in fact been done. The (Court Number) District Court and Defendant(s) have done FRAUD!!!

 

C. JURISDICTION

1. That jurisdiction and Venue are proper before this Honorable Court, because this Court has Jurisdiction over the parties who clearly work, live, operate a business, and the incidents complained of all happen within the Jurisdiction of this Honorable Court. 

 

2. The Defendants are a licensed Corporate business licensed to do business within the Jurisdiction of this Honorable Court and further this Court has Jurisdiction and Venue over the matters of the Laws of the State of Michigan governing FRAUD, LARCENY ABOVE $100.00 Dollars, FRAUD BY CONVERSION, BANK FRAUD, EMBEZZLEMENT, UTTERING AND PUBLISHING AND FORGERY and these are crimes complained of in this instant complaint. 

 

3. Further Rules of GARNISHMENT M.C.R. 3.101 under Michigan State Law clearly apply to this case because property was unlawfully taken totally without ANY DUE PROCESS OF LAW TO INCLUDE EVEN PROPER TIMELY NOTICE OF SEIZURE AND THAT APPLIES TO THE FEDERAL TORT CLAIMS ACT, THE FEDERAL DEBT COLLECTION ACTS, THE INTERNAL REVENUE CODE RULES, THE STATE OF MICHIGAN GARNISHMENT STATUTES ALL REQUIRE THE MINIMUM STANDARD IS PROPER TIMELY NOTICE SUCH THAT A REASONABLE AND PRUDENT PARTY MAY TAKE SUCH ACTION AS MAY BE PRESCRIBED BY LAW TO PROTECT THEIR PROPERTY INTERESTS.THIS WAS TOTALLY VIOLATED AND DEFENDANTS PERJUred THEIR TESTIMONY TO CLAIM THAT Defendants did timely GIVE NOTICE TO THE PLAINTIFF(S) because they did NOT GIVE TIMELY NOTICE TO THE PLAINTIFFS AND AS SUCH ARE LIABLE FOR ANY DAMAGE Michigan Court Rule 3.101 (f), and (g). 

 

4. This Court NEVER FIGUred THESE FACTS INTO CONSIDERATION AND CLEARLY THIS NEEDS TO BE DONE FOR NO PROPERTY may be confiscated or seized without DUE PROCESS OF LAW.JURISDICTION AND VENUE ARE PROPER TO ENFORCE MICHIGAN CRIMINAL AND CIVIL LAW AND JURISDICTION AND VENUE ARE CLEARLY PROPER IN THIS INSTANT MATTER BEFORE THIS Honorable Court. 

 

5. A point of fact the Defendant's Counsel are learned practitioners of the ART AND PRACTICE OF LAW and long schooled in that practice are more than cursorily aware that it was Defendant's own PETITION WHICH REMOVED THIS MATTER TO THIS HONORABLE (Court Number) District Court.The Defendant(s) clearly knew or should have known in advance when they submitted their original pleading and PETITION FOR REMOVAL OF THIS MATTER to this very (Court Number) District Court that Defendant did so of their own volition and learned Counsel own hand and intentions and by that very act gave the (Court Number) District Court jurisdiction over this removal action and matter by their very own choice in fact on the RECORD. 

 

6. The Defendant(s) are operating a business Corporation within the jurisdiction of this Honorable (Court Number) District Court and are suppose to be operating that business corporation within the LAWS AND STATUTES OF THE STATE OF MICHIGAN, which clearly come under the authority of this (Court Number) District Court. 

 

7. There are clearly defined PROPERTY RIGHTS AND CONSTITUTIONAL RIGHTS which this (Court Number) District Court IS CLEARLY SWORN TO PROTECT as well as the sovereign LAWS OF MICHIGAN.

 

8. It is blatantly obvious to even this novice that clearly the (Court Number) District Court has been formally PETITIONED by the DEFENDANT(s) COUNSEL, ALL LEARNED ATTORNEYS LONG SCHOOLED IN THE ART AND PRACTICE or LAW for this matter to be removed to this Honorable (Court Number) District Court and it clearly appears that the controversy in question arose within the confines and jurisdiction of the (Court Number) District Court AND ALL PARTIES ARE DOING BUSINESS WITHIN THE CONFINES OF THE (Court Number) District Court. 

 

9. The issues are of the laws of the State of Michigan and the doing of business under those laws and of property rights and actual constitutional rights which the (Court Number) District Court is sworn to protect. 

 

10. Further, the issues before the court are violations of law well within the jurisdiction of the (Court Number) District Court. They are:

EMBEZZLEMENT

LARCENCY OR FRAUD BY CONVERSION OVER $ 100.00

VIOLATION OF THE GARNISHMENT LAWS

CONFISCATION OF PROPERTY WITHOUT DUE PROCESS OF LAW

UTTERING AND PUBLISHING AND FORGERY

 

It is just fraud, plain and simple. Obviously, the adjudication needed is going to take a Court of Law for all kinds of laws were broken and basically the Constitutional Rights of Plaintiff were ignored.

 

D. SUMMARY JUDGMENT

1. Summary Judgment is defined in Black's Law Dictionary (Sixth Edition) on page 1435:

"Procedural device available for prompt and expeditious disposition of controversy without trial when there is no dispute as to either material fact or inferences to be drawn from undisputed facts, or if only question of law is involved."

 

2. Genuine issues which will preclude entry of summary judgment are issues which can be sustained by substantial evidence. 190 F.Supp. 10,17. 

 

3. The United States Supreme Court has spoken quite emphatically on the issue of Summary Judgment as it deals with the Pro­ Se litigant.Unless it appears beyond absolute doubt that the Plaintiff(s) Pro-Se can prove no set of facts in support of their claims which would be entitled to relief than Summary Judgment Is Not Possible. The Plaintiff Pro-Se Complaint must be viewed in a light most favorable to the Pro-Se litigant as the Pro-Se litigant is not held to the same standards as a learned attorney Counselor long schooled in the art and practice of LAW. That the complaint must be viewed most favorably to the Plaintiff(s) unless it is so obviously spurious or so totally defective as to be moot.Please see Conley vs.Gibson 355 U.S. 41 at 45-46 (a 1957) case. 

Also please see Hughs vs. Rowe 449 U.S. 5 at 10 and U.S. vs. Gaubert 113 L.Ed. 2nd 335 a (1991) case.In McGuckin vs. Smith et al 947 F2d 1050 a (1992) case the Court held that before the District Court may dismiss a Pro-Se litigant complaint for failure to state a valid claim, the Court must provide the Pro-Se litigant an opportunity to amend the complaint and or fix any errors prior to the dismissal and this has yet to be done in this instant case

In addition in the U.S. Supreme Court in Scheuer vs. United States 416 U.S. 232 at 236 a (1974) case; "When a Federal court reviews the sufficiency of a complaint before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one.The issue is not whether Plaintiff will ultimately prevail on the merits, but whether the claimant is entitled to offer evidence to support the actual claims.Indeed it may appear on the face of the pleading that recovery is very remote and unlikely, but that is not the test. "The True test is whether the claimant had an opportunity to be heard and present his claims to redress his just grievance. 

Therefore, the Court must accept as true all the Plaintiff's factual allegations and draw from them all reasonably favorable inferences, Please see D. P. Enterprises Inc. Vs Bucks County Community College 725.F2d 943 at 944.In contrast this has not been done in this case as of yet and Summary Judgment would clearly deny such opportunity to be heard and get redress of just grievances. 

Further in Ferran vs. Town Of Nassau 11 f3d 21 a (1993) case and Boag MacDougal 454 U.S. 364 a (1982) case and Haines vs. Kerner 404 U.S. 519 a (1972) case and Talley vs. Lane 13 F3d 1031 all hold that to insure that a Pro-Se Litigant complaint get or are given fair and impartial considerationthat are to be liberally construed in favor of the Pro-Se Litigant no matter however inartfully pleaded

That Pro-Se Litigants pleadings are to be construed liberally and held to less stringent standards than formal pleadings drafted by skilled Attorneys long schooled in the art and practice of law, and if the Court can reasonably read and understand the pleadings and the pleadings state a valid claim upon which relief can lawfully be granted than the Pro-Se Litigant SHOULD PREVAIL without regard to failure to properly cite proper legal authority, confusion with legal theories, poor syntax and sentence construction, or The Pro Se Litigant's unfamiliarity with pleading practice requirements.

In S.B.C. Elliot 953 F2d 1560 a (1992) case "When interpreting Pro-Se papers, the court should use common sense to determine what relief party should receive."

 

E. GRAMMAR

The definition of grammar in Words and Phrases, Volume 18A states:

"Grammar" is the science which treats of the principles of languages, the study of the forms of speech, and their relations to each other.State v. Traylor, 56 So. 521, 524, 100 Miss 544. The legislator is presumed to know the meanings of words and rules of "grammar," and the only why the court is advised of legislature's intention is giving the generally accepted construction, not only to phraseology of act but to manner in which it is punctuated Racing Commission v. Bourquardez, Fla, 42 So.2d 87, 88

 

F. DUE PROCESS

1. The FIFTH AMENDENT of the Constitution of the united states of America states: "nor be deprived of life, liberty, or property, without due process of law ".

 

2. This legal principle has long been the Foundation of our Rule of Law and this Nation pursuantto American Jurisprudence:

"The guaranty of due process of law is one of the most important to be found in the Federal Constitution or any of the Amendments; Ulman v. Mayor, etc. of Baltimore, 72 Md 587, 20 A 141, affd 165 US 719, 41 L Ed 1184, 17 S Ct 1001. 

It has been described as the very essence of a scheme of ordered justice, Brock v. North Carolina, 344 US 424, 97 L Ed 456, 73 S Ct 349 and it has been said that without it, the right to private property could not be said to exist, in the sense in which it is known to our laws.  Ochoa v. Hernandez y Morales, 230 US 139, 57 L Ed 1427, 33 S Ct 1033."

 

3. Due process further requires:

1. "The fundamental requisite of due process of law is the opportunity to be heard". Grannis v. Ordean, 234 U.S. 385,394 (1914). 

2. The hearing must be " at a meaningful time and in a meaningful manner. "Armstrong v. Manzo, 380 U.S. 545, 552(1965). 

3. In the present context these principles require…timely and adequate notice detailing reasons…, and an effective opportunity to defend by confronting any adverse witnesses and by presenting arguments and evidence… These rights are important in cases...challenged…as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases."  Goldberg v. Kelly 397 U.S. 254 (1970)

 

4. "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E.g., ICC v. Lousiville & N.R. Co., 227 U.S. 88, 93-94 (1913) 503 US L.Ed 2nd 391(1992), Willner v. Committee on Character and Fitness, 373 U.S. 474,496-497 (1959)"

 

5. "Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While it is important in the case of documentary evidence, it is more important where the evidence consists of testimony of individuals…"

 

6. "We have formalized these protections in the requirements of confrontation and cross-examination.  This court has been zealous to protect these rights from erosion. It has spoken out…in all types of cases where administrative...actions were under scrutiny."   Greene v. McElroy, 360 U.S. 474. 496-497 (1959). 

 

7. Lavin v. Marsh, 644 F.2d 1378 (9th Cir. 1981): Retirement benefits case. Court stated:

"Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation," 644 F.2d, at 1383.

 

G. RULE 44 AND 28 U.S.C. § 1733

1. The "Notice of Levy," a computerized alleged debt instrument is not an official record of the Government of the United States according to the Federal Rules of Civil Procedure, Rule 44 and 28 U.S.C. § 1733. As stated on the face of the instrument, it is only a "Notice," and not a "levy" which warrants surrender of property.

 

2. A "Levy" requires that the property levied upon be brought into legal custody through seizure.

 

3. A "Levy" is an absolute appropriation in law of the property levied upon.

 

4. A mere "Notice" of intent to levy is insufficient to constitute a levy.

 

5. According to United States v. O'Dell, Case Number 10188, Circuit Court of Appeals, 6th Circuit, March 10, 1947, the method for accomplishing a levy on a bank account is the issuing of warrants of distraint, the making of the bank a party, and serving with Notice of Levy, copies of the warrants of distraint, and Notice of Lien.

 

H. "LEVY"

1. A levy is a confiscation of property in accordance with a legal judgment.

 

2. From the definition itself, it demonstrates there are two elements to a levy.

·The first element is that a levy is a confiscation of property.

·It is limited by the second element, which is that before the property can be confiscated it must be in accordance with a legal judgment.

 

3. In civil law, the specific process is carried out by a Writ of Execution or Warrant of Distraint, which is a formal process issued by a court, generally evidencing the debt of the defendant to the plaintiff and commanding the officer (Sheriff, U.S.  Marshall, etc.) to take the property of the defendant in satisfaction of the debt (Fed. Rules of Civil Procedure, Rule 69(a)& (b).)

 

4. The Writ of Execution or its equivalent, results in a lien filed against the property by the court.

 

5. A lien, by definition, is a claim on property for payment of a valid debt or obligation arising either by contract or tort. Some important points to comprehend regarding the nature of the levy are:

1. Levy can only come after seizure;

2. Seizure only applies to property subject to forfeiture;

3. The only property subject to forfeiture is that which is under the provisions of 26 U.S.C., Subtitle E - Alcohol, Tobacco, Firearms and certain other miscellaneous excise taxes. 

4.  All the enabling legislative regulations pertaining to levy are found in 27 C.F.R., which pertains only to those activities described in number three (3) above.

 
I. "DISTRAINT"

1. Section 6331 of Title 26, United States Code deals with "levy and distraint," and "levy" means seizure by any means.

 

2. What every "Notice" fails to disclose or determine is, what does the term "distraint" signify?

 

3.      The applicable definitions, according to Black's Law Dictionary, 5th Edition, seem to be:
"
Distraint - Seizure; The act of distraining or making a distress.
Distress - The seizure of personal property to enforce payment of taxes, to be followed by it's public sale if the taxes are not voluntarily paid; also the thing taken by distraining, i.e. That which is seized to procure satisfaction.
Distress Warrant - A writ authorizing an officer to make a distraint; particularly, a writ authorizing the levy of a distress on the chattels of a tenant for non-payment of rent."

 

4. What is the one asset the government cannot seize?An asset already in its' possession!

 

 

J. "SURRENDER OF PROPERTY SUBJECT TO LEVY."

Section 6332 of Title 26, United States Code deals with Surrender of property subject to levy. 

STATUTE

(a) Requirement - Except as otherwise provided in this section, any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary, surrender such property or rights (or discharge such obligation) to the Secretary, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process.       

(c) Special rule for banks - Any bank (as defined in section 408(n)) shall surrender (subject to an attachment or execution under judicial process) any deposits (including interest thereon) in such bank only after 21 days after service of levy.

(e) Effect of honoring levy - Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary (or who pays a liability under subsection (d)(1)) shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment.

(f) Person defined - The term ''person,'' as used in subsection (a), 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 surrender the property or rights to property, or to discharge the obligation.

 

 

 

K. "Notice" of Seizure. 

1. The law (Title 26 U.S.C. § 6502, Collection after assessment) at (b) states:

"The date on which a levy on property or rights to property is made shall be the date on which the notice of seizure provided in section 6335(a) is given."

 

2. Understanding and awareness of the above provisions of the United States statutes is critical to comprehending how employees of the Internal Revenue Service have totally subverted 26 U.S.C. § 6331. So let there be no doubt about this. Under the law, as provided in 26 U.S.C. § 6331, there can be no levy, i.e. no levy is made, unless a notice of seizure, pursuant to 26 U.S.C. § 6502 and regulations promulgated thereunder, is given to the person whose property has been allegedly made subject to levy. If a persons property is taken, allegedly by levy, or a computerized (hearsay) "Notice" of levy, but without a "Notice" of seizure being given, then only one of the two possibilities exist. One, such property was not taken or is sought to be taken by levy, or two, such property was taken by levy, or computerized "Notice of levy" illegally. 

 

3. If no "Notice of Seizure" is given, no actual levy pursuant to 26 U.S.C. § 6331 and regulations is made as explained in 26 U.S.C. § 6502(b), which gives the reason for "Notice of Levy", and also the only time where it can lawfully be used.

 

4. In general, 26 U.S.C. § 6335 requires that, as soon as practicable, after seizure of property, notice in writing shall be given by the Secretary to the owner of the property (or in the case of personal property, the possessor thereof) or shall be left at his usual place of abode or business if he has such within the internal revenue district where the seizure is made. If the owner can not be readily located, or has no dwelling or place of business within such district, the notice may be mailed to his last known address. Such notice shall specify the sum demanded and shall contain, in the case of personal property, an account of his property seized, and, in the case of real property, a description with reasonable certainty of the property seized. Rarely, if ever, does the third party realize that the responsibility for determining the validity of the alleged levy is theirs. Nor, do they fully realize the importance ofmaking acorrect legal determination, since an incorrect determination can lead topersonal liability such as mail fraud, computer fraud, violations of the racketeering statutes and other criminal charges against them, called "conversion of property."

 

5. There is an important distinction between the operation of a "Levy" on Form 668-B and a "Notice of Levy" that should not be overlooked. In the case of a "Levy," no member of the public gets involved or is put at risk. A "Levy" is a procedure strictly between the government and an allegedly errant "Taxpayer."

 

6. There is nothing on a "Notice of Seizure", for example, that asks, requests, threatens, or orders third parties outside the functions of government to do anything to help the government get the property it seeks.

 

7. Third parties certainly should not be expected to turn over any property without first being absolutely certain that:

1. The information contained in a "Notice" is one hundred percent accurate, and;

2. They are required under the statutes and legislative regulations to turn over the property in question.

 

8. Yet any third party who responsibly determines the information contained in a "Notice of Levy" would find that it is practically all false, and that they are under no legal obligation to "honor" such "Notices. 

 

9. It should be perfectly obvious that from purely a legal point of view, third parties can throw any "Notice of Levy," which is only a "Notice," they receive right into the nearest garbage can. 

 

10. The minimum number of false and misleading statements contained in a typical "Notice of Levy" are the following:

1. Chapter 64 of Title 26, U.S.C. provides a "lien" for the above tax and addition.

2. Notice and Demand has been made on the "taxpayer"

3. This amount is still due and owing.

4. All property...in your possession and belonging to this "taxpayer".. are levied upon

5. Demand is made on you...to pay this tax liability.

 

11. Most people have little or no understanding of the law and are unaware of the statutory and regulatory requirements that must be met before a "Notice" of levy can be valid. What those who receive the "Notice" fail to consider is that since they are the fiduciary in possession of the property, it is they who are ultimately responsible for determining its' disposition and not the responsibility of a computerized piece of paper with a pre rubber stamped signature of an alleged revenue collector.

 

12. The trust we place in those who maintain our property is much like the trust we place in our Doctor. It should be maintained at the highest possible degree of honesty and integrity. After all, it is our livelihood at stake. It is a fundamental right of an individual under contract to exchange his sweat and labor for valuable consideration and receive full compensation as enumerated by the terms of their contracts.

 

L. AUTHORITY OF SECRETARY TO LEVY

The authority of the Secretary to "levy" is restricted to and contained within 26 U.S.C. § 6331(a) and legislative regulations, 27 C.F.R. Part 70.161, published in the Federal Register and the Code of Federal Regulations. Title 26 U.S.C. § 6331(a), Levy and Distraint, states:

"(a) Authority of Secretary - If any person liable to pay any tax neglects and refuses to pay the same within 10 days after notice and demand, it shall be lawful for the secretary to collect such tax (and such further sums as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401(d)) of such officer, employee, or elected official. If the Secretary makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary and upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10 day period provided in this section."

 

M. "NOTICE OF LEVY" NOT A "LEVY"

1. The computerized document is not a "Levy" and does not authorize anything in fact or law.

 

2. The Court further stated in United States v. O'Dell ". . . .This paragraph describes a mere statement or notice of claim. Nothing alleged to have been done amounts to a levy, which requires that the property be brought into legal custody through seizure, actual or constructive, levy being 'an absolute appropriation in law of the property levied upon', Rio Grande R. Co. v. Gomilia, 132 U.S. 478, 10 S.Ct. 155, 33 L.Ed. 400; In re Weinger, Bergman & Co. , D.C. 126 F. 875, 877; Smith v. Packard, 7th Cir., 98 F. 793. Levy is not effected by mere notice. Hollister v. Goodale, 8 Conn., 332, 21 Am. Dec. 674; Meyer v. Missouri Glass Co. , 65 Ark. 286, 45 S.W. 1062, 67 Am. St. Rep. 927; Jones v. Howard, 99 Ga. 451, 27 S.E. 765, 59 Am. St. Rep. 231."

 

3. Federal Courts have repeatedly stated that a mere notice of levy is not a levy. (See United States of America v. Stock Yards Bank of Louisville, Kentucky, 231 F.2d. 628, April 2, 1956.) In this case, the bank argued that in addition to issuing warrants of distraint and serving notice of levy, it was incumbent upon the government to serve a notice of lien. The court decided against the government, due to violation of procedural due process and upheld the decision of the district court.

 

4. Again, in the case of Freeman v. Mayer, 152 F. Supp. 383, May 28, 1957, the United States District Court, D. N.J. held that a levy for delinquent taxes requires that property be brought into legal custody through seizure, actual or constructive, and is an absolute appropriation of property levied on and mere notice of intent to levy does not constitute a levy and is insufficient. United States v. O'Dell, 6th Cir., 1947, 160 F.2d 304, 307. Accord, In re Holdsworth, D.C. N.J. 1953, 113 F.Supp. 878, 888; United States v. Aetna Life Insurance Co. Of Hartford, Conn. , D.C.Conn. 1942, 146 F.Supp. 30, 37, in which Judge Hicks observed: "...that he could find no statute which says that a mere notice shall constitute a (levy)."

 

5. There are cases which hold that a warrant for distraint is necessary to constitute a levy. Givan v. Cripe, 7th Cir. 1951, 187 F.2d. 255. United States v. O'Dell, Supra. The Court of Appeals for the Third Circuit stated in its opinion, 221 F.2d. at page 642:"These sections (26 U.S.C. '' 3690 - 3697) require that a levy by a deputy collector be accompanied by warrants of distraint."

 

6. The Freeman court further stated, the distress (distraint) authorized by 26 U.S.C. § 3690 (1939 Code) is different from anything known to the common law, both because it authorizes a sale of property seized, and because it extends to other personality than chattels. By its very nature it requires that the demands of procedural due process of law be rigorously honored. 

 

7. A "Notice" of levy is not a valid levy nor a lawful claim. 

 

8. A levy is imperfect without a seizure.

 

9. However, the statute recognizes an exception: where the person is employed by the government.  In such a case, mere "Notice" of levy is sufficient to secure the funds from the government employer since the government already has the money in its' possession, it is simple to have it shifted from one government account to another (set off).

 

10. However, with a private worker, there is absolutely no regulation which implements a seizure pursuant to a levy, except for Alcohol, Tobacco and Firearms activities, pursuant to legislative regulations enumerated in 27 C.F.R. Part 70.

 

11. There is a statute which purports to immunize third parties from suit when they surrender a private workers' assets.  Be not misled or fooled by this statute. It applies to actual levies and demands, not simply to "Notices" of levy. 

 

12. Thus, for a private employer, bank or anyone else to surrender a workers property, without a warrant from a court, the private employer, bank, or other organization may be sued for damages arising from a tort, conversion without lawful authority. 

 

13. In the Legal Reference Guide for Revenue Officers page 57(16)0-67 #334.8 it states:

"Of course, if a notice of levy is invalid because it is defective and thus, no levy is made, property or rights to property of a taxpayer need not be surrendered." United States v. O'Dell 160 F.2d 304 (6th Cir. 1947)

 

N."NOTICE"

1. A notice is defined in 58 Am Jur 2d as containing "Notices" by classes or kinds of "Notice". The word "notice" can have various meanings. It has been said to be equivalent to information, intelligence, or knowledge. "Notice", however, is not always synonymous with knowledge, and facts which do not show actual knowledge may suffice to satisfy a requirement of "Notice." On the other hand the view has been taken that when a person knows of a thing, he has "Notice" thereof, as no one needs "Notice" of what he already knows, or, more accurately, that actual knowledge supersedes a requirement of "Notice".

 

2. Although actual "Notice" may approximate knowledge, there can be actual "Notice" without knowledge, since actual knowledge is not synonymous with actual "Notice."

 

3. The law recognizes two kinds of "Notice," actual and constructive. In some jurisdictions, "Notice" is classified by statutory provisions. "Notice" is regarded in law as actual where the person sought to be charged therewith, either knows of the existence of the particular facts in question or is in conscience of having the means of knowing it, even though such means may not be employed by him. Actual "Notice" has also been defined as that which is directly and personally given to the person to be notified. And, it has been said that actual "Notice" embraces those things that reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.

 

4. Compare various types of "Notices," such as Notice of Lis Pendens, notice of fire, notice of labor organization elections, notice of claim, notice of appeal, and notice of proposed rule making required by 5 U.S.C. 553(b) for every substantive regulation implemented to regulate a regulated entity, such as individuals holding liquor or firearms permits. The "Notice" provided by § 553(b) affords due process to a regulated entity for an opportunity to comment on his/her approval or non-approval of the proposed regulation. However, the "Notice" of proposed rule making published in the "Notice" section of the Federal Register cannot be compared with a regulatory hearing, therefore it is simply a "Notice" and not the actual "hearing." Neither is a computerized (hearsay) "Notice of Levy" an actual "Levy" nor even a legitimate "Notice", for that matter, because it does not contain evidence (an approved OMB control number) that it has been approved for public use by the Office of Information and Regulatory Affairs under the Paperwork reduction Act and Executive Order 12291 - Regulatory Flexibility Act.  (See Federal Register, Vol 57, 293, Friday, Dec. 11, 1992, P. 58762)

 

O. "UNREASONABLE SEARCHES AND SEIZURES"

In the Handbook for Special Agents page 9781-159 #383.3 it states:

Essentially any search and seizure without a warrant is automatically unreasonable unless:

(a)It is made incident to an arrest for a crime committed in the officer's

presence.[Draper v. U.S.] or

(b) The occupation of the premises who has authority understandingly consents. 

 

P. "CUSTODY AND STORAGE OF SEIZED PROPERTY"

In the Handbook for Special Agents page 9781-168 #38452 it states:

(1) All property of any nature seized by a special agent shall remain under the jurisdiction of the United States District Court in the judicial district where seizure was made [Rush v. U.S.; Gerth v. U.S.] until such time as forfeiture action has been completed or terminated. 

 

Q. NOTICE AFTER SEIZURE

Title 26 U.S.C. § 6335(a) defines the "Notice" instrument, termed, "Notice of Levy," 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. Proper use of the "Notice" process, administrative garnishment, is specifically set out in 5 U.S.C. § 5514, as being applicable exclusively to officers, agents and employees of organizations of the United States (26 U.S.C. § 3401(c)). Title 5, U.S.C. § 5514 affords procedural due process to the federal employee. Section 2 of that statute states:

"Except as provided in paragraph (3) of this section, prior to initiating any proceedings under paragraph (1) of this section to collect any indebtedness of an individual the head of the agency holding the debt or his designee shall provide the individual with -

A. a minimum of thirty days written notice, informing such individual of the nature

and amount of the indebtedness determined by such agency to be due, the intention of the agency to initiate proceedings to collect the debt through the deductions from pay, and an explanation of the rights of the individual under this section;

B. an opportunity to inspect and copy government records relating to the debt;

C. an opportunity to enter into a written agreement with the agency, under terms agreeable to the head of the agency or his designee, to establish a schedule for repayment of the debt; and

D. an opportunity for a hearing on the determination of the agency concerning the existence or the amount of the debt. . . . 

and, section (3) states:

The collection of any amount under this section shall be in accordance with the standards promulgated pursuant to sections 3711 and 3716-3718 of title 31 or in accordance with any other statutory authority for the collection of claims of the United States or any agency thereof. 

 

R. RUFF v. ISAAC

Michigan Court of Appeals

October 17, 1997

No. 192615

This rule was initially announced in Marx v. Hanthorn, 148 US 172; 13 S Ct 508; 37 L Ed 410 (1893), where the Supreme Court held: "[I]t is the rule, when not modified by statute, that the [burden] of proof is on the holder of a tax deed to maintain his title by affirmatively showing that the provisions of the law have been complied with." Id. at 180. 

 

...alleging (1) that defendant failed to exercise due diligence in determining whether the IRS complied with all statutory procedures required to divest plaintiffs of their interest in the property and consummate its sale to defendant, and (2) that, because of these procedural defects, defendant possessed no valid title to plaintiffs' property. 

 

Plaintiffs specifically raised four defects in the trial court concerning the government's perfection of its right to seize and sell their home. Plaintiffs argued below that the IRS failed to provide the required statutory notices of (1) tax deficiency, (2) intent to levy, (3) seizure, and (4) sale, each of which is required by federal law. See 26 USC 6212, 6331, and 6335. 

 

When a statute is unambiguous it should be given its plain and ordinary meaning, and judicial interpretation is therefore prohibited. Robinson v. Shell Oil Co, 519 U.S. 337 (1997). ; 117 S Ct 843; 136 L.Ed 2d 808 (1997). Separate meanings should be given to clauses that are separated by the disjunctive term "or" unless the context of the statute dictates otherwise. Resolution Trust Corp v. CedarMinn Building Limited Partnership, 956 F2d 1446, 1452 (CA 8, 1992).

 

The trial court sustained the objection and no evidence was presented to establish whether the notice of deficiency was served on plaintiffs in any fashion. [6] Hence, an issue of material fact remained. 

[6] In the trial court and on appeal defendant attempts to bridge this failure of proof by relying on the presumption of validity that attaches to a tax sale deed by virtue of 26 USC 6339. The presumption of validity was challenged by plaintiffs' affidavits in which they alleged the absence of service of the required notice of deficiency. Insofar as defendant, upon challenge to the presumption of validity of its deed, bore the burden of proof that the statutory notices were made, this failure of proof was fatal to defendant's motion for summary disposition under (C)(10).

 

RUFF v. ISAAC means under MCR 3.101 (G) the Defendant(s) would have TOTAL LIABILITY if proper rules, procedures, forms, laws and regulations were not followed and only one item not properly done will invalidate the actions of the Defendant. 


S.  THE FOLLOWNG SURPREME COURT  CASES CLEARLY GIVES A MAGNIFICENT AND SOLID FOUNDATION FOR THE PLAINTIFF'S POSITION

The cases are noted as follows:

116 U S  616, 627 (1886). Boyd v. United States

If it is law, it will be found in our books; if it is not to be found there, it is not law.

every invasion of private property, be it ever so minute, is a trespass

the silence of the books is an authority against the defendant, and the plaintiff must have judgment. According to this reasoning, it is now incumbent upon the defendants to show the law by which this seizure is warranted. If that cannot be done, it is a trespass.

Court is to protect against any encroachment of Constitutionality or secured liberty Fifth Amendment rights

 

        118 U S 425  Norton v. Shelby County   

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.

 

     192 U.S.38  Page 55 BENZIGER v. UNITED STATES

This provision of the statute should be liberally construed in favor of the importer, and if there were any fair doubt as to the true construction of the provision in question, the courts should resolve the doubt in his favor. American Net & Twine Co. v. Worthington, 141 U.S. 468, 35 L. ed. 821, 12 Sup. Ct. Rep. 55; United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690; Rice v. United States, 4 C. C. A. 104, 10 U. S. App. 670, 53 Fed. 910.

 

     243 U.S.389  UTAH POWER and LIGHT CO  v  U S

Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the-risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. ... And this is so even though as here, the agent himself may have been unaware of the limitations upon his authority.  Federal Crop Ins.  Corp. v. Merrill, 332 U S  380, at 384 (1947)

 

     245 U.S. 151 Page 153 GOULD v. GOULD

In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen. United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690; American Net & Twine Co. v. Worthington, 141 U.S. 468, 474, 12 S. Sup. Ct. 55; Benziger v. United States, 192 U.S. 38, 55, 24 S. Sup. Ct. 189.

 

     263 U.S. 179 Page 188 - U.S. v. MERRIAM

But in statutes levying taxes the literal meaning of the words employed is most important for such statutes are not to be extended by implication beyond the clear import of the language used. If the words are doubtful, the doubt must be resolved against the government and in favor of the taxpayer. Gould v. Gould, 245 U.S. 151, 153, 38 S. Sup. Ct. 53.

 

     273 U.S. 28  BYARS v. U S   

Unlawful search and seizure  Your rights must be interpreted in favor of you.

 

     285 U.S.312  HEINER v. DONNAN

In the law of evidence, a presumption which may be rebutted by evidence.  Otherwise called a "disputable" presumption.  A species of legal presumption which hold good until evidence contrary to it is introduced.  Beck v. Kansas City Public Service Co., Mo.App. 48 S.W.2d 213, 215.  It shifts the burden of proof.  Heiner v. Donnan, 285 U S  312, 52 S.Ct. 358, 362, 76 L.Ed. 772.  And which standing alone will support a finding against contradictory evidence.  Lieber v. Rigby, '14 Cal.App-2d 582, 94 P.2d 49, 50.  See also Presumption.

 

     311 U.S.60  UNITED STATES v. STEWART

Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the-risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. ... And this is so even though as here, the agent himself may have been unaware of the limitations upon his authority.  Federal Crop Ins.  Corp. v. Merrill, 332 U S  380, at 384 (1947)   See, e.g., Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 391; United States v. Stewart, 311 U.S. 60, 70, 108,

 

      332 U.S.380   FEDERAL CROP INS CORPORATION v. MERRILL

Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the-risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. ... And this is so even though as here, the agent himself may have been unaware of the limitations upon his authority.  Federal Crop Ins.  Corp. v. Merrill, 332 U S  380, at 384 (1947)   See, e.g., Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 391; United States v. Stewart, 311 U.S. 60, 70, 108.

 

      355 U.S. 41, 45-46 (1957) Conley v. Gibson

"In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts [355 U.S. 41, 46] in support of his claim which would entitle him to relief "

 

      397 F2d 600 Page 601 - GARVEY v. FREEMAN

Factual determinations of an ad­ministrative agency are not final and conclusive unless supported by the record.

An order of an administrative agency without factual support is without due process.

 

       397 F2d 600 Page 602 - GARVEY v. FREEMAN

Administrative due process must be found in the administrative record.

The basic concepts of fair play are inexorable safeguards for due process.

"The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394 (1914). The hearing must be "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

 

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E. g., ICC v. Louisville & N. R. Co., 227 U.S. 88, 93-94 (1913); Willner v. Committee on Character & Fitness, 373 U.S. 96, 103-104 (1963). What we said in [397 U.S. 254, 270] Greene v. McElroy, 360 U.S. 474, 496-497 (1959), is particularly pertinent here:

"Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of  documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment . . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny."

 

The Judicial Department was to have no part whatever in making any laws. In fact proposals looking to vesting some power in the Judiciary to take part in the legislative process and veto laws were offered, considered, and rejected by the Constitutional Convention. In my [397 U.S. 254, 274] judgment there is not one word, phrase, or sentence from the beginning to the end of the Constitution from which it can be inferred that judges were granted any such legislative power.

 

Additionally, the United States Supreme Court has determined that before a person can be deprived of property in civil proceedings, due process requires assistance of counsel.  Goldberg v. Kelly, 397 U S  254 (1970).  While you probably will not get counsel provided, ask for it anyway and argue about that issue later if necessary. (The very thought that Americans should have to hire and pay for professionals just to stop the public servants from taking their property without due process of law is atrocious

 

     403 U.S.388  BIVENS v. SIX UNKNOWN FED NARCOTICS AGENTS

It is also important to realize that no individual in government has the authority to operate outside of his authority.  If he knowingly operates outside of his authority, he can be sued in his individual capacity.  See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U S  388 (1971); Bothke v. Fluor Engineers and Constuctors, Inc., 713 F.2d 1405 (9th Cir. 1983).

 

You want to set your situation up so that you can eventually sue the agent or other known and unknown persons in their individual capacity.  By going the route of 28 U S C. 1331 for the petitions for writs, you are half-way home.  You will want to be very familiar with Bivens v. Six Unknown Named Agents of the Federal Bureau of narcotics, 403 U S 388 (1971)  

  

     407 U.S.67  FUENTES v. SHEVIN

In the letter and in the FOIA requests, specific records and documents of fact have been demanded which show who, if anyone, made the determinations that the individual is subject to or liable for a tax and also the documents relied upon which provided the basis for making those determinations.  No agent has the authority to make those determinations and none of the above demanded documents are ever provided by the agency.  The agents continue to act on merely a presumptive basis.  This, is not due process of law.  A notice and opportunity to be heard is required before a person can lawfully be deprived of liberty or property.  Fuentes v. Shevin, 407 U S  67 (1972); Matthews v. Eldridge, 424 U S  319 (1976).  Notice of hearing requires full disclosure of facts upon which impending deprivation is based and opportunity to present argument.  Goss v. Lopez, 419 U S  565 (1975).  A fair hearing contemplates full disclosure; and, an order of an administrative agency without factual support is without due process. Garvey v. Freeman, 397 F.2d 600 (10th Cir. 1968).  Who, if anyone, made those determinations referred to in the letter and whether they had authority to do so are facts that need to be disclosed.

 

the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute,

 

     416 U.S. 232  Scheuer v. Rhodes

When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.

 

"In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). [416 U.S. 232, 237]  See also Gardner v. Toilet Goods Assn., 387 U.S. 167, 172 (1967)   

 

    5 U.S. 137 Marbury v. Madison 

An act of congress repugnant to the constitution can not become a law. The courts of United States are bound to take notice of the constitution.

 

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

 

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

 

Anything that is in conflict is null and void of law.  Clearly, for a secondary law to come in conflict with the supreme law was illogical.  For certainly the supreme law would prevail over all other law and certainly our forefathers had intended that the supreme law would be the basis of all law.  And for any law to come in conflict would be null and void of law.  It would bear no power to enforce, it would bear no obligation to obey, it would purport to settle as if it never existed for unconstitutionality would date from enactment of such a law, not from the date so branded in an open court of law.  No courts are bound to uphold it and no citizens are bound to obey it.  It operates as a mere nullity or a fiction of law.  

 

Any law repugnant to the constitution is null and void of Law.

 

One would presume that an independent check of the many Law Books to see if the proper "rules, procedures, forms, laws and regulations" have been followed for  proper independent validation had been done.

 

T.  RELIEF AND REMEDY

Wherefore, the Plaintiff, would respectfully pray for the just and lawful relief of this Honorable Court, to grant and order to vacate the Judgment or Order entered in the (Court Number) District Court by the Honorable Judge (Judges Name) for Fraud, Inadvertence, Surprise Or Neglect (Michigan Court Rule 2.612 (C)) for all good and just cause being clearly shown on the record of this above captioned matter.

 

I am not an expert in the law however I do know right from wrong.  If there is any human being damaged by any statements herein, if he will inform me by facts I will sincerely make every effort to amend my ways.  I hereby and herein reserve the right to amend and make amendment to this document as necessary in order that the truth may be ascertained and proceedings justly determined.  If the parties given notice by means of this document have information that would controvert and overcome this Affidavit, please advise me IN WRITTEN AFFIDAVIT FORM within thirty (30) days from receipt hereof providing me with your counter-affidavit, proving with particularity by stating all requisite actual evidentiary fact and all requisite actual law, and not merely the ultimate facts or conclusions of law, that this Affidavit Statement is substantially and materially false sufficiently to change materially my status and factual declarations.  Your silence stands as consent to, and tacit approval of, the factual declarations herein being established as fact as a matter of law. 

 

May the court order this matter forward to trial on the merits.

 

 I thank the Court for its valuable time and or trouble in regards to this matter.


For Further Study:

A Notice Of Levy Is Not A Levy   A Notice Of Levy Is Not A Levy

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