LIBERTY -- YOUR RIGHT TO MAKE A LIVING

CopyrightŠ 2004, Jim Carter

PART 1:

IS THE INCOME TAX LEGALLY ENFORCED?

    The citizens are continuously assured by courthouse edifices, by government press releases, and by judges that the rule of law is providing justice and the public's constitutional rights are being protected.   Is it possible this conclusion might be erroneous? Allow me to string some legal points together so you can make your own judgment.

    The Fifth Amendment mandates that all judicial proceedings must proceed by due process. Since all judges take an oath of office to uphold the Constitution, and the Supreme Court has additionally held that government employees who violate any law in the performance of duties do not represent the government, should we conclude that adjudication that is not within constitutional requirements nullifies any claim to jurisdiction? Sure it does. This is the only guarantee that a court of admiralty, a star chamber proceeding, a kangaroo court, or an arbitrary proceeding by whatever name does not occur. That court proceedings must be within constitutional provisions has been forcefully established by the Supreme Court. Muskrat v. United States, 219 US 346; Smith v. US, 360 US 1.

    Other adjudication has been more direct: "A judgment rendered in violation of due process is void." World Wide Volkswagen v Woodsen, 444 US 286, 291; National Bank v. Wiley, 195 US 257; Pennoyer v. Neff, 95 US 714, and "...the requirements of due process must be met before a court can properly assert in personam jurisdiction." Wells Fargo v. Wells Fargo, 556 F.2d 406, 416. The legal encyclopedia Corpus Juris Secundum informs us in volume 16D, section 1150 on Constitutional Law: "Only by due process of law may courts acquire jurisdiction over parties." 16D CJS Const. Law, §1150.

     Due process requires the movant initiate a cause of action by a complaint, information, or indictment that establishes a legally mandatory rebuttable presumption---a prima facie case. They must aver the defendant was legally required to perform, or not perform, a specific act and that the defendant did, or did not, perform the stated act. The only issues that are before the court are the disagreements between the indictment or complaint and the response (the pleadings).   Innumerable opinions have waxed greatly on the requirements of service and notice of actions necessary to fulfill due process and vest jurisdiction in the court.  Of what value is notice or service if the defendant is not confronted with the law that is alleged to have been violated?

    These legal points are basic fundamental tenants of pleading that any first year law student must learn. The provision dates from the Magna Carta: "No freeman shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed, nor shall we go upon him, nor send upon him, but by...the law of the land." To be sure, "due process" is the evolutionary heir to "law of the land." Buchalter v New York, 319 US 427; The Constitution of the United States of America, United States Printing Office (1973), p 1137-1145.  "Due process is violated if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."  Snyder v. Massachusetts, 291 US 97, 105.

    The Supreme Court has been more specific: The district court's jurisdiction for revenue cases must pertain to a law providing in its terms for revenue which is directly traceable to the constitutional power to lay and collect taxes. US v. Hill, 123 US 681. Defendants have written volumes on the inconsistent adjudication that the income tax is an excise tax, a direct tax, or is empowered by the 16th. Amendment. When inadequate pleadings are challenged, due process requires the government to establish the authority for a tax, and whether it is an excise, a duty, a direct tax, or is authorized by the 16th Amendment. "Plaintiff's implied essential allegation that the right sought to be enforced is consonant with the constitution, when denied, constitutes a primary issue of law, which must be determined at the outset of litigation." 71 CJS, Pleading §516. Whether these conditions are enforced upon the IRS is an open question.

    An indictment for willful failure to file income tax returns relies upon the phrase "as required by law." What law? Due process requires the IRS aver a law that imposes a lawful responsibility for filing tax forms. Notification of legal responsibility is "the first essential of due process of law." Connally v. General Construction Co., 269 US 385, 391. If there is no legal requirement for an individual to pay a tax, the citizen is free to do as he wishes. Flora v. US, 362 US 145. It is a "well-settled rule that the citizen is exempt from taxation unless the same is imposed by clear and unequivocal language, and that where the construction of a tax law is doubtful, the doubt is to be resolved in favor of those upon whom the tax is sought to be laid..." Spreckles Sugar v. McClain, 192 US 397.

    A complaint filed to enforce an IRS summons is also deficient. 26 USC §7602, the only statute listed in the complaint authorizes the IRS to issue a summons. This is a power that is applicable to all revenue taxes; it is not an authorized purpose. Ref. Boyd v. US, 116 US 616, 627. If the history of §7602 is traced through the 1954 code rewriting that made "no material change," all three source paragraphs incorporated into §7602 required the object of the summons be shown "liable by law."

    The legislated purpose for the Secretary is to "collect the taxes imposed by the internal revenue laws." 26 USC §6301. The IRS has eighty or so taxes they enforce. Legal liability for all of them ---except the income tax---is clearly stated; i.e., 26 USC §§4061, 4071, 4081, 4091 etc. A complaint that lists only the power of a summons has not averred an authorized purpose as required by the LaSalle and Powers cases. Any motion to protest is ignored.

    The Englishman William Pitt, Earl of Chatham, made an eloquent contrast of authority and power 200 years ago in Parliament: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement." If society has regressed to where power alone is sufficient for government action, we have a police state.  If power alone is sufficient, our lives are in jeopardy if we pique a police officer.

    Various subterfuges are used to avoid a demand to aver a law declaring the legal liability of a citizen. If the defendant brings the discrepancy to the attention of the court in an action to enforce a summons, the court responds that the summons is to determine the liability from the defendant's books and records. The court has made a play on words. It has corrupted the attempt to determine a legal liability that must be determined before adjudication into a question of factual liability that is determined as a result of adjudication.

    The court will even say "Respondent argues that the Federal Government does not have the authority to levy and collect income taxes from individuals." You had merely asked to see their authority and they won't show it to you. They say in effect: "We have the authority and we don't have to show you." The court will then impose fines for raising such a "frivolous" issue.

    Tax court is the epitome of subterfuges. Tax court is an Article II agency of the Executive branch of government staffed with IRS agents akin to a zoning board; it is not an Article III Judicial court. You are not entitled to a trial by jury, it is not empowered to hear challenges to the tax code, you are guilty as accused and must prove your innocence, and you, as a petitioner, cannot challenge jurisdiction. The public is informed that the 90 day letter of deficiency must be challenged by Petition to tax court or paid in full then file a Petition in district court for a refund.  Either action places the burden of proof on the citizen. If the unchallenged 90 day letter becomes a debt as represented, it would be a forbidden Bill of Attainder---a punishment imposed without adjudication. If you do not volunteer to forfeit your constitutional rights, the only way to challenge an IRS assessment is after seizure. If a seizure is made without prior adjudication or hearing in the administrative tax "court", subsequent adjudication successfully faulting the assessment places the burden of proof on the IRS, before a jury, for the first time, but this option is carefully concealed.

    Although theoretically possible, the overturning of IRS seizures by this method would impose tremendous trauma and strip the citizen of living provisions and financial means to fight the IRS, but it is the only way to get a jury trial in a civil case. Your Fourth Amendment right "to be secure in their persons, houses, papers, and effects" [compare with the earlier Magna Carta quotation] from government seizure has been nullified by writing tortuous procedures to allow a challenge that preserves remnants of your constitutional rights only after seizure--as a government expediency. It was King John's expediency that annoyed the barons. The Fourth Amendment was not demanded to prevent seizure in crimes of violence or from a neighbor's complaint; it was written to prevent general warrants and writs of assistance used for summary tax confiscation made by King George.   Boyd v. US, 116 US 616.  Does the Supreme court really believe the fundamental principle of constitutional construction is that effect must be given to the intent of the framers? Ref. Whitman v. Oxford National bank, 176 US 559. Or "that which violates the spirit of the constitution is as much unconstitutional as one that violates its letter"? Sinking Fund Cases, 99 US 700 dis op. Perhaps principles are to be enforced on states and municipalities but the federal self-proclaimed necessity to provide imagined public benefits overrides constitutional restrictions.

       As citizens are required to sign IRS forms under threat of perjury and to produce books and records pursuant to court order, it is apparent that the words of the Supreme Court have been forgotten.  "(I)t is elementary knowledge that one cardinal rule of the court of chancery is never to decree a discovery which might tend to convict the party of a crime, or to forfeit his property.  And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime or to forfeit his property, is contrary to the principles of a free government.  It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom."  Boyd v. United States, 116 US 616, 631-632.  The compelled production of books and records to avoid self evidencing arbitrary assessments (90 day letters ?) was the prime issue in Boyd and has not been overturned. Chancery was not a criminal court. It is unknown how forms that must be signed under threat of perjury are compatible with this holding. The courts do enforce an IRS summons for which you must appear before the IRS with your books and records.  After that...

    The IRS will argue before the jury in an Article III court (who are prescreened by the IRS before jury call) that the defendant filed 1040's in previous years, and he knew he had to file for the missing years. They ignore the succinct quotation from Lord Camden by the court: "If it is law, it will be found in the books; if it is not to be found there, it is not law." Boyd v. US, 116 US 616,627.

    Even letters to your congressman requesting the statute imposing legal liability, forwarded to the IRS for answering, respond that this is a question for a court to decide. If the citizen is expected to comply with the law, shouldn't they be informed of the law before being dragged into court? Several sections of the IRS code include phrases such as "any person made liable" or "every person liable" must do thus and thus. Who is liable? Not a clue.

    Title 26 USC §7701(a)(14) defines a "taxpayer" as a person who is legally required to pay a tax. A person who is not legally required by an unambiguous statute to pay a tax is not a taxpayer. Spreckles Sugar v. McClain, 192 US 397; Miller v. Standard Nut Margarine, 284 US 498; Gould v Gould, 245 US 151. Further, the IRS does not have authority over any individual who is not a taxpayer, or is claimed to be a taxpayer, or holds information on a putative taxpayer. Botta v. Scanlon, 288 F.2d 504; Economy Plumbing v. US, 470 F.2d 585.

    A signature on a tax form that asks for the "taxpayer's name", "taxpayer's address", or "taxpayer's signature" is sometimes suggested to certify the signer is a bona fide "taxpayer" and the only remaining question is the extent of his factual liability. The signer may be qualified to certify the facts on the document, but cannot be assumed to be qualified to certify as to the law.

    The tables listing percentages calculated for the taxpayer's convenience (26 USC §1) are also suggested to impose liability . The tables are for "taxable income." Taxable income relates only to taxpayers. What converts a sovereign citizen into a mere taxpayer subject to the IRS? {Question: Is it the position of the IRS/courts that anyone who uses the tables acquiesces to the status of 'taxpayer'? If so, the status cannot be applied to a non filer. It is interesting to note that historic versions of Section 1 contained phrases such as 'every person' and 'every individual' which could arguably be read to impose liability. Why have these phrases been removed? To remove the possibility of averring a law imposing liability and exposing the law to a challenge?}

    Let's be candid. "Taxpayer" is substituted for your name as soon as the IRS/court looks at you, as in "the taxpayer's failure to file income tax forms..." The courts and the IRS interchange "taxpayer" and "citizen." Motions to protest are ignored. This hardly seems compatible with declarations that enforcement of a revenue summons "is not (to be) in derogation of any constitutional right." US v Euge, 444 US 707, 711, 718; Upjohn v. US, 449 US 383, 398. Such as a right to know the law imposing liability for a tax?

    There is no statute imposing legal liability for the income tax. If the law exists, wouldn't the IRS be averring it in their pleadings? The absence of a law imposing legal responsibility in an indictment or complaint for the income tax is a denial of due process. A rule 7(f) motion for a bill of particulars in criminal cases or, in civil cases, a motion for a more definite statement (disfavored) or a motion to dismiss for want of jurisdiction/ failure to state a claim upon which relief can be granted (rule 12b) would put the question in the judge's lap. "When the existence or the content of a law is called into question, the court must necessarily decide the question the same as it decides any other question of law."  Walnut v Wade, 103 US 683.  Lots of luck. Be prepared to see a government based on a rule of man rather than a rule of law.

    Attorney Thomas Carley recently made appeal in three different circuits noting the absence of a law imposing liability in income tax pleadings. The appellate courts cited section 1 of Title 26 as authority, ridiculed Carley's "frivolous" appeal and imposed personal sanctions. By what figment of justice can an appellate court rely upon a law that is not averred in the pleadings? Section §1 has been previously observed to address "taxable income" with no identification as to who is a taxable person. "(T)he court in effect rendered judgment against him upon a matter that was not within the pleadings and was not in fact litigated. To do this without his consent---and the record shows no consent---is contrary to fundamental principles of justice." Coe v. Armour Fertilizer, 237 US 413, 426.

    It is interesting to note that other appellate courts have cited other statutes to impose liability, but pleadings do not aver anything. When appellate courts rely upon different statutes to enforce a law that has not been pled, isn't this ample evidence the pleadings are a flagrant violation of due process?

      The court has had no problem in declaring a law must be clearly communicated to the citizen to be enforced:   "(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."  Connally v. General Construction Co., 269 US 385, 391.  And  "Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed."  U.S. v. National Dairy Products, 372 US 29, 32.   In the instant application, the government has, on innumerable occasions and in many different forums, in both formal judicial proceedings and in informal letters to government representatives, been requested in the manner of civilized man, to identify the applicable law.  Their requests have been ridiculed, shunned and sanctioned. And still they are expected to comply with a law that will not be declared?  Is there anything more vague or nebulous than a law that the government will not declare or aver?

    Fragmented pro se motions, unprofessional and lacking media understanding or access, are dismissed as frivolous, and this is often another judicial play on words. Read "not likely to be adjudicated", and the court's words, frequently distorting or totally avoiding the real issue raised, are the ones published in the law books and parroted by the media.

    Proceedings in a court are legally void where there is an absence of jurisdiction. Scott v. McNeal, 154 US 34; Re Bonner, 151 US 242.  Where the record is such as would in law not confer jurisdiction, the judgment may be collaterally impeached.  50 CJS Judgments §524(c).  Theoretically, a claim of want of jurisdiction can be made at any time, even by habeas corpus, but for an income tax case, not until global warming abates (read not until hell freezes over). The opinion of Hassett v. Welch, 303 US 303 sounds real good: "If doubt exists as to the construction of a taxing statute, the doubt should be resolved in favor of the taxpayer" id. p314, but don't bet on it.   If jurisdiction is not pleaded in the complaint, subsequent oral or written reference to claimed sources of jurisdiction do not suffice.  McNutt v. G.M.A.C.,  298 US 178.

    There is an excellent reason why no statute imposes legal liability on a citizen: if the law exists, it would be cited; if it were cited, it could be challenged. Averments made in the indictment/complaint that are denied in the defendant's response are the only questions before the court. Without a citation of a legal responsibility for the income tax, the lawful standing of the income tax is not before the court. Any subsequent attempt to present a constitutional challenge has shifted the burden of proof to the defendant. The reversal of the burden of proof determines who wins. It is impossible for a defendant to prove there is no possible way the income tax might be legal. It is a violation of due process to put the burden of proof on the individual to show exclusion from a tax. Unitarian Church v. Los Angeles, 357 US 545.

    If there is no requirement to plead a law imposing a tax, it is no different than enforcing a law that does not exist. The result is arbitrary action under color of law---a major step on the road to tyranny.   No, it is tyranny!!!   The creation of offenses is limited only by the originality of the prosecutor and the compliance of the court. It has been said that taxes are the price we pay for a civilized society. It can also be observed that extortion, under color of law, is the hallmark of tyranny.

    The IRS has recently suggested on their web site that 26 USC §§6011, 6012, and 6072 are statutes that impose liability.  http://treas.gov/irs/ci/tax_fraud/docnonfilers.htm at page 4. If the IRS believes this, why are the statutes not cited in pleadings as required by due process?  The suggestion that these statutes impose liability must be taken as an acknowledgment that pleadings for decades---without having the sections cited---have not fulfilled the basic requirements of due process. And their refusal to cite such statutes upon innumerable demands in court documents, congressional inquiries, and correspondence to the IRS itself even pursuant to FOIA, can only be seen as a deliberate and willful effort to prevent any law that might impose liability from being exposed to judicial attack.

      It is interesting to compare the IRS website above with the latest Congressional Research Report identified in Part 3.  In question 8 ridiculing the "arrogant sophistry" of individuals who request identification of a statute imposing liability,  the Congressional Report declares 26 USC §1 imposes liability and then identifies §6012 as defining gross income.  Oh, what a tangled web we weave...   Even the IRS and the Congressional Report writers cannot agree.
 
       Would the lack of a statute averring legal liability constitute harmless error?   Let the Supreme Court speak.  In Smith v. US, 360 US 1, the court held that a constitutional right to an indictment could not be waived by the defendant and that a proceeding in violation of this constitutional requirement nullified the jurisdiction of the court. (The supreme court could not have returned the case for a new trial if jeopardy had attached in the first trial.)  The court has additionally stated: "It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged violates due process." and reversed the conviction.  Vachon v New Hampshire, 414 US 478. The instant application is not to mere evidence as in the Vachon case, it is to accusing the defendant of violating a law, and that accusation is never made. It is inconceivable that there is a more 'crucial element of the offense.'
 
    Would it be worth the effort to observe that 18 USC §241 makes it a crime to conspire to oppress a constitutional right, or perhaps §1951, 1962 relating to crimes for organized extortion?  Whether the points raised in "www.supremelaw.org/sls/31answers.htm" would be of interest if the IRS is ordered to document their authority is beyond the scope of this paper.

    If the IRS avers a law that they claim imposes the income tax,  is there any defense that might be raised to challenge the tax?? Let us consider the constitutional right of Liberty.

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This article is not to be considered as legal advice. The case analysis is considered to be accurate but the writer is not responsible for any use made of the information.

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Introduction  | Part 2  | Part 3  | Part 4

Part 5  | Part 6  | Part 7  | Part 8