LIBERTY -- YOUR RIGHT TO MAKE A LIVING

Copyright© 2004, Jim Carter

PART 8:

CIVIL PROCEDURE

WEB SITES AND ABUSIVE TAX SHELTERS

Civil actions are increasingly being filed in the courts on behalf of the IRS as a request for the court to order an injunction to close down a website for actions deemed undesirable by the IRS. Let us review the standards of civil procedure to determine if the actions are in compliance with Fifth Amendment requirements of due process.

The rigid rules of pleading under Law and Equity jurisdictions were replaced by code pleading but the substance of each jurisdiction are retained even until now. Under code pleading, an essential allegations that was not specifically alleged, or that was referred to only indirectly in another allegation, was considered unpled, and rendered the complaint subject to demurrer. Rule or notice pleading has replaced code pleading and general averments, either by reference to outside exhibits or by internal reference, are sufficient if the indirect averment tends to show a desire to plead the element. Demurrers have been replaced with motions to dismiss for failure to state a claim on which relief may be granted. The motion challenges the adequacy of the law upon which the complaint is issued. For the duration of the hearing on this type of motion, all facts are assumed to be true as claimed.

FRCP ## 7 and 8 relates to pleadings; i.e. the Complaint and the Answer. Rule 12 (b) authorizes various defenses to be made by Motion before an Answer is filed. Several of the defenses are deemed waived if not presented before the Answer. If a motion to dismiss for failure to state a claim is filed [rule 12 (b)(6)], a defendant should also move for a more definite statement. Rule 12 (e).

Some sources suggest a written ruling is necessary to preserve the question for appeal.

A timely motion/demand for jury trial may also preserve rights.

Reference sources:

Cyclopedia of Federal Procedure by Callaghan, Vol. 4, 5 {LF 9716.4 C 9}

Moore’s Federal Practice, Vol. 2, chapter 12, KF8820 A313

35A and 35B, Corpus Juris Secundum, Federal Civil Procedure

61A & 61B, Am Jur Secundum, Pleading

Federal Rules Digest, third edition {KF8830.1 D562}. Sections 12b.2, 12b.3, 12b.6.

caption

MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED

and for

FAILURE TO STATE A CAUSE OF ACTION

The defendant respectfully moves this court to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to FRCvP 12 (b)(6), 12 (c], 12 (h)(2), and 56. There is no statutory duty claimed in the complaint that imposes upon the defendant a responsibility to perform.

It is further Moved that the complaint be dismissed for failure to state a cause of action required by Due Process as secured by the Fifth Amendment of the Constitution of the United States.

name, s/, address, date, phone

**********************

Page break

***********************

caption

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED

and for

FAILURE TO STATE A CAUSE OF ACTION

It is elementary that the function of a civil proceeding is to determine the validity of an obligation on behalf of the plaintiff from the defendant and, if such an obligation exists, the power of the court will be used to enforce that obligation and any recovery for resultant damage. The court does not create any obligation.

If two individuals have a disagreement over a contested obligation, the dispute may involve a right that is protected by statute or it may be implied as a characteristic of society. However, a government can bring a complaint against a citizen only as a violation of a law; there are no implied obligations beholding to a government that are enforceable by a court.

If a government agency initiates civil process to enforce a federal obligation, that obligation must be identified by statute in the complaint. To suggest a complaint could be made without a duty imposed by a statute would be to suppose the citizen is subject to the whim of a government’s attorney and the magistrate. Such a thought would stand the concept that we are based on a government of law rather than a government of men on its head. It would additionally conflict with the historic origin of due process---that a citizen is to be obliged to the government only by “the law of the land.” It is axiomatic the court may not use as a basis for holding against the defendant a law that is not pled by the plaintiff. Due process requires a defendant be clearly informed of the basis of any duty and be permitted to challenge the accusation. Morgan v. US, 304 US 1; Coe v. Armour Fertilizer, 237 US 413. "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 (1926). As applied in the instant case, the absence of a statute requiring the doing of an act violates the first essential of due process.

When the government is pursuing a tax allegation, due process requires the government to prove the existence of a valid tax. Unitarian Church v. Los Angeles, 357 US 545. If a government agency contends there is a tax imposed upon a citizen it must carry the burden of proof of the tax obligation. Speiser v. Randall, 357 US 513, 529. It is the responsibility of government to prove the existence of a tax; a citizen is not required to prove the nonexistence of a tax. Spreckles Sugar v. McClain, 192 US 397.

If due process is not followed, the court does not have jurisdiction. "A judgment rendered in violation of due process is void." World Wide Volkswagen v. Woodsen, 444 US 286, 291 (1980); National Bank v. Wiley, 195 US 257 (1904); Pennoyer v. Neff, 95 US 714 (1878). "...jurisdiction of the Courts of the United States means a law providing in terms of revenue; that is to say, a law which is directly traceable to the power granted to Congress by §8, Article I, of the Constitution, 'to lay and collect taxes, duties, imposts, and excises.'" US v. Hill, 123 US 681, 686 (1887). A court cannot violate its oath of office; an action that violates a law is not an action of government.

A complaint challenged as not being supported by a reading of the law to impose a duty upon the defendant is subject to dismissal for failure to state a claim upon which relief may be granted. “Rule 12 (b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.” Neitzke v. Williams, 490 US 319, 326; Hishon v. King, 467 US 69, 73; Conley v. Gibson, 355 US 41, 45-46.

The challenge may be filed before an Answer and would require a hearing. Authorization for adjudicating such a motion after an Answer is filed is also noted where it is considered as a motion for judgment on the pleadings under rule 12 [c]. Republic Steel v. Pennsylvania Engineering, 785 F.2d 174, 182; Amersbach v. City of Cleveland, 598 F.2d 1033, 1038; Slotnick v. Garfinkle, 632 F.2d 163, 165; Trustmark Ins. v. ESLU, 299 F3d 1265. Rule 12 (b)(6) and rule 12 [c) motions are held to the same standards. Jones v. Greninger, 188 F3d 322; Westcott v. Omaha, 901 F.2d 1486. A rule 56 motion for summary judgment may be accepted as a motion to dismiss for failure to state a claim. Wagner v. Higgins, 754 F.2d 186; Cearley v. General American Transp, 186 F3d 887.

A motion to dismiss may be made at any time in the proceeding before imposition of judgment. FRCvP 12 (h)(2); Ellis v. Carter, 328 F.2d 573; 35A C.J.S. Federal Civil Procedure, §825 with copious citations. The motion goes to a cause of action. If a cause of action is not presented to the court, the court has no authority to create a windfall benefit to the plaintiff regardless of the time of challenge. The question becomes one of whether jurisdiction can be vested if no cause of action is presented to the court. Snyder v. Massachusetts, 291 US 97.

“In practice, a…complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under SOME viable legal theory.” Scheid v. Fanny Farmer Candy, 859 F.2d 434, 436 (emphasis in original); Lewis v. ACB Business Services, 135 F3d 389, 406; SmileCare Dental v. Delta Dental, 88 F3d 780; Car Carriers v. Ford Motor, 745 F.2d 1101; In re Plywood Antitrust, 655 F.2d 627. The courts have no authority to enforce a claimed obligation if it is not based upon law; they can not legislate their own laws.

A complaint that depends upon conclusions of law is subject to dismissal; conclusions of law carry no weight in civil process. The court “need not accept as true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Chicken, 829 F.2d 10, 12; Ana Leon T. v. Federal Reserve, 823 F.2d 928, 930; Columbia Natural Resources v. Tatum, 58 F3d 1101; Dalton v. Jefferson Smurfit, 979 F.Sup 1187, 1194.

Nor are “footless conclusions of law” (Ryan v. Scoggin, 245 F.2d 54) or “sweeping legal conclusions cast in the form of factual allegations” sufficient to sustain a challenge. Blackburn v. Fisk Univ, 443 F.2d 121; Pauling v. McElroy, 278 F.2d 252; Atlanta Gas Light v. Southern Natural Gas, 338 F.Sup 1039. “Bare assertions of legal conclusions are not sufficient.” Columbia v. Tatum, 58 F3d 1101; Wag-Aero v. US, 837 F.Sup 1479, affm. 35 F3d 569; Sogevalor v. Penn Central, 771 F.Sup 890, 893.

“Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Blackburn v. Marshall, 42 F3d 925, 931; Fernandez-Montes v. Allied Pilots, 987 F.2d 278, 284. Conclusory allegations of law are insufficient to defeat a motion to dismiss for failure to state a claim. NAAP v. California Board, 228 F3d 1043; General Contractors v. Water District, 159 F3d 1178; Parrino v. FHP, 146 F3d 699; Pareto v. FDIC, 139 F3d 696; In re Syntex Securities, 95 F3d 922; In re Stac Electronics, 89 F3d 1399; In re DeLorean Motor, 991 F.2d 1236; Brown v. Hot, Sexy, 68 F3d 525; Leed v. Meltz, 85 F3d 51.

It is observed the courts have endlessly declared: “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.” In one case, the statement was immediately followed by “Consequently, a complaint will not be dismissed pursuant to Rule 12(b)(6) unless there is no law to support the claims made…” Dalton v. Jefferson Smurfit, 979 F.Sup 1187, 1193-1194. The necessity of a legal responsibility is again succinctly stated: “The facts of each material element necessary to sustain recovery UNDER SOME ACTIONABLE LEGAL THEORY must be made.” (emphasis added) Cooperman v. Individual, Inc., 171 F3d 43; McCormick v. Staider, 105 F3d 1059; Boyle v. US, 200 F3d 1369; Andrews v. Ohio, 104 F3d 803; Davis v. Scott, 157 F3d 1003; Lillard v. Shelby County, 76 F3d 716; Blackburn v. Marshall, 42 F3d 925; Chance v. Armstrong, 143 F3d 698; Herdrich v. Pegram, 154 F3d 362; Berner v. Delahanty, 129 F3d 20; Walker v. National Recovery, 200 F3d 500. The issue presented in this motion is a matter of law. Court rulings on issues of fact are irrelevant. An actionable legal theory within the complaint is declared mandatory.

The federal courts are, of course, institutes of limited jurisdiction; they can exercise jurisdiction only over such cases and controversies as congress authorizes. In National Association for Advancement of Psychoanalysis v. California Board of Psychology, 228 F3d 1043, the court observed the trial court had jurisdiction by 28 USC §1331 that authorizes district courts to exercise jurisdiction over civil proceedings. NAAP complained California’s requirement of licensing infringed their First Amendment and 14^th. Amendment rights by prohibiting them from practicing psychoanalysis in California. After the court determined licensing laws did not implicate any fundamental right protected by the First or 14^th. Amendment, the NAAP presented no legal duty for the court to protect and the motion to dismiss for failure to state a claim was granted.

In Scheid v. Fanny Farmer Candy Shops, 839 F.2d 434, the plaintiff claimed age discrimination under 29 USC §621 et seq. The trial court could not find allegations to support one of the four standards required to support a 29 USC §621 action for age discrimination and sustain a viable legal theory. The complaint was therefore dismissed for failure to show the pleader was entitled to relief.

In Dalton v. Jefferson Smurfit Corporation, 979 F.Sup 1187, Dalton complained among other items that 42 USC §2000e, 42 USC §1981, and Ohio law were violated by discrimination against Dalton. The court concluded the statutory duties within Ohio law and §2000e were not applicable against an individual supervisor and a motion to dismiss for failure to state a claim was granted. The provisions of 42 USC §1981 did impose a duty upon the individual supervisor and the motion to dismiss on that charge was denied.

A multitude of cases could be endlessly cited with alleged legal obligations in varying degrees of clarity imposed by some statute. If there is no statutory obligation beholding to the plaintiff, there is no claim upon which relief can be granted. Due process requires a defendant be accused of violating a law or he must be left alone. The historic origin of due process is “the law of the land.” Since the signing of the Magna Carta, the citizen is to remain free from government harassment unless prescribed by the law of the land. If a court concludes the claimed legal duty is not applicable to the defendant as a matter of law, the case is subject to dismissal for failure to state a claim upon which relief may be granted. "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 (1886),

A federal court may occasionally take judicial notice of a foreign law, such as that of a state. The notice may recognize the existence and validity of the law from the current published statutes of the state without having the Secretary of the State introduce the law into evidence or requiring a certified copy. It should not be concluded the law is accepted by the court as contorted or presented by a litigant nor that an unidentified federal law exists merely upon the suggestion of the plaintiff.

When an essential element of a cause of action is not pleaded by a plaintiff, the court may also take judicial notice of the existence of that element if it is a “fact objectively ascertainable, commonly known, and a matter of public record.” The judicial notice has an effect of stipulating for the duration of the action the existence of that fact, and of obviating the necessity for either party to plead its existence. It must be noted that it is a fact that is the object of judicial notice---not an issue of law.

And what is the viable legal theory that imposes a legal responsibility upon the defendant that the plaintiff has supposedly presented to the court in the instant case? Well, the complaint identifies IRC §7402 that authorizes the IRS to file specified actions in the district courts. The provision is similar in operation to 28 USC §1331 that authorizes the federal courts to adjudicate civil procedure. The complaint also identifies IRC §7408 that relates to venue “provisions of collecting taxes in general.” Neither of these provisions place a responsibility upon the defendant.

IRC §§6700 and 6701 are identified in the complaint. They are penalty provisions; they impose no taxes. The two statutes are authorizations for the IRS to prosecute abusive tax shelters with specified punishments; they do not identify which of 80 or so taxes in the IRC may be the object of the shelter nor do they inform us of any statutory tax imposed upon a citizen. These statutes are grants by congress allowing the IRS to file prosecutions of various nature in the courts; they are not legal obligations imposed upon the defendant nor do they identify any statutory tax. The sections legislate penalties for individuals who violate statutes that impose legal responsibilities.

The §6700 and §6701 provisions have been added since 1980. To suggest they impose liability for a tax, which the IRS nor any court has ever suggested in any known writing, would be to conclude the citizen was not responsible for whatever tax is being considered before 1980.

Various court opinions and government sources have listed a variety of statutes they declare impose liability for the unspecified tax. They include IRC §§1, 61, 63, 6011(a), 6012, 6012(a), et seq., 6072(a), and 6151. It is observed that none of these statutes have never been averred in any complaint, indictment, or information where the government would have to carry the burden of proof and allow the statutes to be contested by the defendant as required by due process. Several court opinions have contended that §7201 and §7203 are sufficient to impose liability. For the plaintiff to now suggest to the court that §6700 and §6701 are sufficient to aver liability would conflict with prior court declarations.

It is also noted section §6701 relates to “taxpayers” in addition to the term being used in the complaint. The defendants specifically object to any assumption or innuendo that they are taxpayers as defined at IRC §7701 (a)(14) until a legal provision imposing that appellation is presented in a responsive pleading by the plaintiff and submitted to contestation. It is a well established premise that a citizen becomes a taxpayer only when a tax responsibility is imposed by law. Botta v. Scanlon, 288 F.2d 504; Economy Plumbing v. US, 470 F.2d 585.

The complaint then contains a statement the defendants advise “others to violate the tax laws,” There are more than 80 taxes identified in the income tax code. What tax laws are being violated? There is no answer. The statement is a legal conclusion unsupported by any claim as to what tax is being collected or who is legally responsible for the tax. Legal conclusions have no standing in a complaint.

The complaint also contains a statement the defendants’ “activity hinders the enforcement of internal revenue laws.” What internal revenue laws are being hindered by the defendant’s actions? There is no answer. The statement is another legal conclusion unsupported by identification of any statutory duty.

An additional claim is made that merchandise is sold “advocating…the false and frivolous position that paying federal income taxes is voluntary.” Again, we see multiple legal conclusions. It is ironic to have a plaintiff who refuses to identify any tax imposed by statute as a legal responsibility upon the defendants or upon their clients but vociferously decries the averred defendants’ position that the tax is voluntary. It is accepted that a material element necessary for a civil complaint that is not presented is taken as an admission that the evidence is non-existent. Scheid v. Fanny Farmer, 859 F.2d 434, 437; O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3. It follows that we should conclude the statute making a tax mandatory does not exist.

Additional paragraphs contain phrases such as “excludability of income or any other tax benefit by participation in the plan” and “a document related to a matter material to the internal revenue laws.” They are “sweeping legal conclusions cast in the form of factual allegations.” Nowhere has the plaintiff evidenced any law that imposes a legal duty for any tax upon the defendants or their clients, nor that the defendants interfered with collection of any statutory tax, nor that any of the clients in contact with the defendants have a statutory duty to the plaintiff. The statements in the complaint are sweeping conclusions of law wrapped in opinionated factual allegations that are unsupported by any statutory authority.

The plaintiff has not made "A short and plain statement of the claim showing that the pleader is [legally] entitled to relief." Rule 8(a)(2).

The courts have concluded that a complaint by taxpayers for the recovery of taxes must show a claim in all respects to be sufficient (US v. Kehoe, 50 F.Sup 432) and that a specific protected right to judicial relief must be presented to the court. Austenite v. US, 279 F.Sup 156. Surely there are no less exacting standards required of the federal government in the collection of taxes with standardized run-of-the-mill complaints. Or have we regressed to where the whim of the King’s Barristers is sufficient cause for the magistrate to arbitrarily disseize the possessions of the peasant?

CONCLUSION

It is concluded the entire complaint is based upon sweeping conclusions of law cast in the form of factual allegations. There is no statutory tax identified anywhere in the complaint. There is no statutory claim of a lawful duty upon any citizen. There is no viable legal theory that the defendants or their clients have any lawful tax due to the government. Due process protects the citizens from facing government harassment unless they violate some law. No such law has been identified; there are only bare assertions of legal conclusions. There is absolutely no legal theory of any statutory obligation that is even suggested by the plaintiff. Continued legal action against the defendants would be a violation of due process. The complaint must be dismissed for failure to state a claim upon which relief can be granted.

Name, s/, address, date, phone

DISCLAIMER

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.

This document is copyrighted.

Forward as you wish. Permission is granted to circulate among private individuals and groups, to post on all Internet sites that are not password protected and to publish in full in all not-for-profit publications.

Contact author for all other rights, which are reserved.

jcarter@snappyisp.com

Introduction  | Part 1  | Part 2  | Part 3  | Part 4

Part 5  | Part 6  | Part 7