posted December 03, 2013 11:55 PM            

Second Circuit Court of Appeals rules that a taxpayer can ignore an IRS summons!

http://caselaw.findlaw.com/us-2nd-circuit/1181309.html

posted December 04, 2013 09:04 AM            

"Voluntary" adjective conative,

deliberate, designed, discretionary, effected by choice, elective, facultative, free, intended, intentional, optional, purposeful, unaccidental, unbidden, uncoerced, uncompelled, unconstrained, unforced, unprompted, unrestrained, volens, volitient, volitional, volitionary, willful, without compulsion, without constraint

Associated concepts: voluntary abandonment, voluntary acceptance, voluntary act, voluntary agreement, voluntary appearance, voluntary assignment, voluntary confession, voluntary conveyance, voluntary discontinuance, voluntary dismissal, voluntary exposure, voluntary gift, voluntary grant, voluntary homocide, voluntary manslaughter, volunnary partition, voluntary payment, voluntary petition in bankruptcy, voluntary retirement, voluntary separation, voluntary statement, voluntary suspension, voluntary testiiony, voluntary trust, voluntary waste

See also: consenting, deliberate, gratis, gratuitous, spontaneous, unsolicited, willful, willing

Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.

VOLUNTARY.

Willingly; done with one's consent; negligently. Wolff, Sec. 5.

2. To render an act criminal or tortious it must be voluntary. If a man, therefore, kill another without a will on his part, while engaged in the performance of a lawful act, and having taken proper care to prevent it, he is not guilty of any crime. And if he commit an injury to the person or property of another, he is not liable for damages, unless the act has been voluntary or through negligence, as when a collision takes place between two ships without any fault in either. 2 Dobs. R. 83 3 Hagg. Adm. R. 320, 414.

3. When the crime or injury happens in the performance of an unlawful act, the party will be considered as having acted voluntarily.

4. A negligent escape permitted by an officer having the custody of a prisoner will be presumed as voluntary; under a declaration or count charging the escape to have been voluntary, the party will, therefore, be allowed to give a negligent escape in evidence. 1 Saund. 35, n. 1. So Will.

posted December 04, 2013 10:41 AM            

As Jwhop demonstrated, voluntary cannot be mandatory. The IRS tries to say that since no one is there to force you to file, you do so voluntarily! Is that why I stopped at the red light this morning? Did I voluntarily comply with the local traffic laws? No, traffic laws are mandatory. In fact, here they are jailable offenses (all of them except for seat belts). Title 26 (Tax Code) also contains taxes for alcohol and tobacco. It is quite clear in those code sections that the tax is mandatory. None of that voluntary compliance BS! Why not write the tax code the same way? Because the code is written to intentionally deceive. They actually state it is voluntary for those who read it for what it is, but it can be misleading by using words like "must" and "shall." Most taxpayers would equate those words with "required." But in legal statutes, must and shall means may! If the filing of a tax return were required, it would be stated as such like liquor taxes. And as Jwhop also pointed out, for there to be a crime such as murder, there must be criminal intent within a voluntary act. All deaths are homicides, but some are justified. If my gun goes off by accident, I am not guilty of murder or manslaughter. But if I try to shoot one person and accidentally hit another, then I am still guilty. It's called transferred intent. In contrast, with a strict liability statute like the FDCPA, intent doesn't matter. Either you did it or you didn't. If you did it, you must pay the penalties. Bill collectors by their very actions cannot avoid violating the act. That's why when they are served with federal papers, they almost always buckle and settle. I actually wouldn't even have to serve them. As a courtesy, I would draw up the papers and FAX them over unfiled. Thanks again, Jwhop!

The word "shall" in a statute may be construed to mean "may," particularly in order to avoid a constitutional doubt. Fort Howard Paper Co. v. Fox River Heights Sanitary Dist

If necessary, to avoid unconstitutionality of a statute, "shall" will be deemed equivalent to "may." Gow v. Consolidated Coppermines Corp

posted December 04, 2013 12:50 PM            

quote:

---

Your copy and paste job is complete nonsense.

---

No, it's not. Large parts of it are straight from the ultimate authority on the subject: the IRS.

quote:

---

Did you bother to read those code sections? Of course not. You take the author's word at what they say.

---

No, I haven't. However, it would be silly for the IRS to go through with citation if they were making bogus claims, wouldn't it? It would be irrational on it's face.

quote:

---

I can see it will do no good to get you to see anything beyond your indoctrination.

---

I wasn't indoctrinated. I suspected you were operating under a false premise, and I sought confirmation from the most logical source.

quote:

---

I already said if a judge signs off on a summons, you have to show up. If not, you can be jailed for contempt, but then you can still refuse to comply.

---

There's a contradiction in what you're saying here. I think you mean to say that you must show up if you receive summons, but you still don't have to show the justification for your returns. That is false:

United States v. Becker, 58-1 U.S.T.C. ¶ 9403 (S.D.N.Y. 1958), aff’d, 259 F.2d 869 (2d Cir. 1958) (per curiam), cert. denied, 258 U.S. 929 (1959) – in a case in which the defendant failed to produce certain books and records specified in an IRS summons, claiming that the books and records had been destroyed by fire, the court found that based upon the evidence (including the fact that some of the specified books were subsequently produced in compliance with a grand jury subpoena), Becker willfully and knowingly neglected to produce information called for by a summons in violation of section 7210 http://www.irs.gov/Tax-Professionals/The-Truth-About-Frivolous-Tax-Arguments-Section-I#_Toc350157889

quote:

---

The info you just posted tries to scare others into thinking otherwise.

---

That's a misinterpretation of the information. The info is not intended to scare. The intent is to inform in an effort to save people the trouble of following misguided ideas.

quote:

---

You have got to be the most closed-minded robot thinker I have ever encountered.

---

Nope. The moment you start making good, reasoned arguments you'll find a different response from me.

quote:

---

But your rebuttal in this case was quite lame.

---

So lame it inspired 10 posts over three hours from you in response.

quote:

---

I expected so much better from you.

---

I don't know the purpose of including such a line, but whatever idea it was that brought forth this gem is surely poor thinking on your part.

quote:

---

Your advice to compromise or credit counsel with people who have harassed and broken the law shows just how out of touch you are.

---

It says nothing of the sort. It is the responsible way to deal with your debt. For being a part of the Party of Personal Responsibility, you aren't acting like it.

quote:

---

I posted that you have no understanding of the Fifth Amendment RIGHT not to be a witness against oneself, yet you go again and post more drivel about the privilege instead of the right--proving my point about you.

---

That you posted something does not make it fact. This sentence proves nothing...except in your mind.

quote:

---

If you are going to try to refute me, at least address the right argument!!!!!!

---

Frankly, I'm not sure which argument you're asking me to address here. You started the post regarding debts, but then you go into talking about the 5th. Are we talking taking care of debts or your right to the 5th? I did tackle the 5th in my previous post. It doesn't save you from the tax man.

quote:

---

I'm not even going to respond to you on this topic till you post something intelligent on the matter that indicates you understand what you are saying and when you address the actual issues I post about.

---

Interesting. So you post things that have been materially refuted here, and yet you'd like to stop talking to me until I can post things that indicate an understanding.

quote:

---

Banister's case alone was in 2005. That definitely puts the author's credibility into question regarding the rest of what he says...and your comprehension into question, since you still posted it.

---

Once again, Bannister's client(s) were convicted. Bannister lost his CPA license.

quote:

---

Banister won his criminal case. The jury agreed with him.

---

He won part of a case in which he was charged with conspiracy. The jury found him not guilty of conspiracy. His client, whom he advised on tax matters, was convicted.
Bannister lost his appeal regarding losing his CPA license, and then later lost again in that civil tax court case.

quote:

---

Regain some credibility here, AG,

---

I haven't lost any credibility here, Randall. That's your imagination.

quote:

---

How can an individual file an income tax return and not waive his Fifth Amendment RIGHT not to be a witness against himself?

---

Already did:

As the Supreme Court has stated, a taxpayer cannot “draw a conjurer’s circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law.” United States v. Sullivan, 274 U.S. 259, 264 (1927).

That's at the crux of the argument here: you don't get to decide things based upon your own declaration. It is not your beliefs that determine the law, but rather the law itself.

quote:

---

If you answer this question, we can continue.

---

I already had. You're seeking a way out that avoids making you look like you lost.

quote:

---

But considering how easily you are misled by lies concerning the enforceability of a summons (despite the IRS website and the Supreme Court saying otherwise), I won't hold my breath.

---

I'm not mislead, nor are they lies as I posted above.

quote:

---

And I am talking about third party debt collectors. They purchase these in bulk for pennies on the dollar and then sue for the face amount plus loads of late fees, often tripling the original amount. They sue and garnish wages and collect it over a period of time. The original creditor may have written it off, but it lives on. You are really showing your ignorance on a number of topics tonight, AG. Maybe you were just hungry.

---

Nope. Wasn't hungry, and wasn't wrong either. I know the collection agencies you speak of. I've dealt with them. Perhaps you forget that I actually got COMPLETELY out of debt in my thirties. I was never sued, nor would such action have produced the desired results, which is the basis for my opinions on the matter.

quote:

---

Your advice to compromise with creditors who harass and break the law shows how much of a traditionalist you are (to the extreme). Don't buckle. Sue!

---

Yeah, it's more responsible to do the wrong thing with regards to the debt you accrued than it is to do the right thing. Maybe you are a liberal in disguise, trying to save people from the suffering they created for themselves by getting them out of having to pay on their debts.

posted December 04, 2013 12:57 PM            

Acoustic

When I look at your posts, I feel like I am taking the SATS and they just gave me a Reading Comprehension essay on auto mechanics

------------------
Want To Ask Any Question About Bible Prophecy? Go For it. It is Free, of course.

posted December 04, 2013 01:06 PM            

Your source lied and said there was not a single win for protestors in two decades. Banister won his criminal case. As did others. I post Banister in refutation of the aforementioned claim. It has nothing to with his client or CPA license. Your failure to stay on task is distressing. The Supreme Court is the supreme law of the land. If they say there can be no penalty for failure to submit to a summons, then that's it. The IRS can't do otherwise. If they do, that makes the IRS lawbreakers, which you apparently support. If you fail to assert your rights, the IRS considers them waived. That's why you need an attorney to go with you to resist the summons. Because the IRS are criminals who routinely violate the law. The case you posted about records lost in a fire is a moot point. Although an Affidavit would have resolved it. You have to assert your constitutional objections to defeat the summons. If you don't know your rights, the IRS will fool you. Once a creditor sells the debt, they are due no monies. They have been compensated. Paying your debt to lawbreaker third parties is not " doing the right thing." It's supporting criminality. Suing them is also a way to get out of debt by having the debt removed in the settlement.

posted December 04, 2013 01:25 PM            

Bullshiit, the IRS is not the ultimate authority on US tax law. The Congress of the United States IS the ultimate authority who wrote the laws and the Federal courts, including the Supreme Court ARE the authorities who decide what the laws mean and how they may be implemented.

The IRS is not a law unto themselves.

Pure unadulterated horseshiit for anyone to believe the IRS is the ultimate authority on tax law. If they are acoustic, why is the IRS losing so many tax cases in Federal Courts. AND acoustic, if the IRS is the ultimate authority on tax law....why would the IRS have to resort to Federal Courts to prosecute tax cases?

posted December 04, 2013 04:54 PM            

quote:

---

If you are going to post the Long case, at least know what you are posting.

---

I sufficiently knew what I was posting.

quote:

---

And the government could not produce the law that makes someone liable for filing. Don't worry, I will gladly post the details.

---

They could and did cite the law for "willfully" not filing. The jury couldn't establish beyond reasonable doubt that he was "willful" in his failure to file. The case proves NOTHING with regard to a citizen's duty to file taxes.

quote:

---

Those idiotic lies from a blog are really beneath you.

---

They aren't lies, and you haven't proven them to be such. They are an accurate accounting.

quote:

---

Nationally prominent attorney Lowell Becraft, of Huntsville Alabama, assisted by attorney Russell J. Leonard of Sewanee, Tennessee, defended Lloyd R. Long of Decherd, Tennessee.

---

Becraft has been cited and fined for bringing frivolous tax suits to court in other instances [(United States v. Nelson), 885 F.2d 547 (9th Cir. 1989)].

I'd like to take the opportunity to illustrate such a case:

Before: O'SCANNLAIN, LEAVY, and HAWKINS, Circuit Judges.

MEMORANDUM**

Taxpayer Michael Samuel Fair appeals pro se the tax court's summary judgment for the Commissioner of Internal Revenue ("CIR") in Fair's action contesting the CIR's determinations of tax deficiencies and additions to tax for the tax years 1983, 1987, and 1988, and the tax court's imposition of a $2,500 penalty for Fair's filing of a frivolous petition. The CIR determined Fair's tax deficiencies after Fair tardily filed his tax returns and failed to report income he received during the relevant tax years. We have jurisdiction pursuant to 26 U.S.C. Sec. 7482. We review de novo, Estate of Schnack v. Commissioner, 848 F.2d 933, 935 (9th Cir. 1988), and we affirm.


Fair contends that he is a "free person" and not a "taxpayer" of the United States subject to federal income taxes. Fair also contends that wages he received for his labor during the relevant years are not income. These contentions lack merit.


Fair has failed to bear his burden of proving that the deficiencies in income tax and the additions to tax determined by the CIR were incorrect. See e.g., Rapp v. Commissioner, 774 F.2d 932, 935-36 (9th Cir. 1985). First, Fair clearly is a "taxpayer" and a "person" within the meaning of 26 U.S.C. Sec. 7203. See United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986). Second, it is well-settled that wages are income. See 26 U.S.C. Sec. 61; Grimes v. Commissioner, 806 F.2d 1451, 1453 (9th Cir. 1986). Finally, "the Supreme Court and the lower federal courts have both implicitly and explicitly recognized the Sixteenth Amendment's authorization of a non-apportioned direct income tax on United States citizens residing in the United States and thus the validity of the federal income tax laws as applied to such citizens." United States v. Nelson (In re Becraft), 885 F.2d 547, 548 (9th Cir. 1989). (Notice <--- the case; it's the one Becraft was fined on)


Fair also contends that the CIR issued several letters indicating that he did not need to file tax returns for the tax years at issue. Fair failed to raise this issue in the tax court. Issues not raised below will not be considered on appeal. See Grauvogel v. Commissioner, 768 F.2d 1087, 1090 (9th Cir. 1985).


Finally, to the extent Fair contends that the tax court erred by imposing a $2,500 penalty pursuant to 26 U.S.C. Sec. 6673 for bringing a frivolous action, his contention lacks merit. For the reasons stated above, Fair's action was frivolous. The tax court did not abuse its discretion by imposing the penalty. See Larsen v. Commissioner, 765 F.2d 939, 941 (9th Cir. 1985) (per curiam).


AFFIRMED.
* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4. Accordingly, the appellant's motion for oral argument is denied
** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3
https://law.resource.org/pub/us/case/reporter/F3/060/60.F3d.833.94-70558.html

quote:

---

Defense testimony showed a case titled Brushaber v. Union Pacific Railroad wherein it was the unanimous decision of the US Supreme Court that the 16th amendment did not give Congress any new power to tax any new subjects; it merely tried to simplify the way in which the tax was imposed. It also showed that the income tax was in fact an excise tax on corporate privileges and privileged occupations. The defense then brought out a case entitled Flint v. Stone Tracy wherein an excise tax was defined as a tax being laid upon the manufacture, sale and consumption of commodities within the country; upon licenses to pursue certain occupations; and upon corporate privileges.

---

I don't know that your article gives an accurate account of what took place. However, this is NOT an argument that will stand should you attempt it in court. Here is a list of cases that will establish the moot nature of such a contention: http://evans-legal.com/dan/tpfaq.html#excise

“Turning first to their basic contention, indeed the one on which all the others rest, that the relation of domestic employment does not come within Art. 1, Section 8, and is therefore immune from the imposition of federal taxes and burdens, we find ourselves in no doubt that appellants are neither historically nor etymologically correct in their claim in substance that excises are limited to taxes laid on the manufacture, sale or consumption of commodities within the country, upon licenses to pursue certain occupation and upon corporate privileges only. It is true that taxes of the kind referred to are excise taxes but it is also true, as was held in Steward Machine Co. v. Davis, that the excises which Congress has power to impose are not limited to vocations or activities which may be prohibited altogether or to those which are the outcome of a franchise, but extend to vocations or activities pursued as of common right. The term ‘excise’ is and was before and at the time of the adoption of the Constitution a term of very wide meaning.”

quote:

---

The defense then brought out a case entitled Redfield v. Fisher, wherein the court ruled that the individual, unlike the corporation, cannot be taxed for the mere privilege of existing, but that the individual's right to live and own property was a natural right upon which an excise cannot be imposed. Defense also pointed to a couple of studies done by the Congressional Research Service that shows the income tax is an excise.

---

The court doesn't make this contention itself:

Some maintain that they are not a “person” as defined by the Internal Revenue Code, and thus not subject to the federal income tax laws. This argument is based on a tortured misreading of the Code.

The Internal Revenue Code clearly defines “person” and sets forth which persons are subject to federal taxes. Section 7701(a)(14) defines “taxpayer” as any person subject to any internal revenue tax and section 7701(a)(1) defines “person” to include an individual, trust, estate, partnership, or corporation. Arguments that an individual is not a “person” within the meaning of the Internal Revenue Code have been uniformly rejected. A similar argument with respect to the term “individual” has also been rejected.

Relevant Case Law:

United States v. Karlin, 785 F.2d 90, 91 (3d Cir. 1986), cert. denied, 480 U.S. 907 (1987) – the court affirmed Karlin’s conviction for failure to file income tax returns and rejected his contention that he was “not a ‘person’ within meaning of 26 U.S.C. § 7203” as “frivolous and requir[ing] no discussion.”

McCoy v. Internal Revenue Service, 88 A.F.T.R.2d (RIA) 5909, 2001 U.S. Dist. LEXIS 15113, at *21, 22 (D. Col. Aug. 7, 2001) – the court dismissed the taxpayer’s complaint, which asserted that McCoy was a nonresident alien and not subject to tax, describing the taxpayer’s argument as “specious and legally frivolous.”

United States v. Rhodes, 921 F. Supp. 261, 264 (M.D. Pa. 1996) – the court stated that “[a]n individual is a person under the Internal Revenue Code.”

Biermann v. Commissioner, 769 F.2d 707, 708 (11th Cir.), reh’g denied, 775 F.2d 304 (11th Cir. 1985) – the court said the claim that Biermann was not “a person liable for taxes” was “patently frivolous” and, given the Tax Court’s warning to Biermann that his positions would never be sustained in any court, awarded the government double costs, plus attorney’s fees. http://www.fraudsandscams.com/nonperson.htm

quote:

---

Next, defense pointed out that in Tennessee Supreme Court case Jack Cole v. Commissioner the court ruled that citizens are entitled by right to income or earnings and that right could not be taxed as a privilege.

---

Along the same lines as above...
Further:
“The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in government as a part of itself, and need not be reserved when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burthens; and that portion must be determined by the legislature.”
Providence Bank v. Billings, 29 U.S. 514, 563 (1830)

“[T]he laws of all civilized states recognize in every citizen the absolute right to his own earnings, and to the enjoyment of his own property, and the increase thereof, during his life, except so far as the state may require him to contribute his share for public expenses....” United States v. Perkins, 163 U.S. 625, 627 (1896).

quote:

---

The prosecution did not challenge or attempt to refute any of these cases cited, or the conclusions of the courts.

---

I don't know if this is accurate, but if it is it is perhaps because the above is known and ought to be known by any such judges presiding over such hearings.

quote:

---

Defense brought out in testimony the fact that nowhere in the entire IRS Code was anyone actually made liable for the income tax. They showed that in the IRS's own privacy act notice only three sections were cited, and that none of these sections made anyone liable for the tax. They also proved that this was not an oversight by showing that the alcohol tax was worded so clearly that no one could misinterpret who was liable for the alcohol tax.

---

“There is hereby imposed on the taxable income of every [married individual, surviving spouse, head of a household, unmarried individual, or married individual filing a separate return] a tax determined in accordance with the following table.. ..” Section 1 of the IRS Code.

The term "imposed" meaning, "1. To establish or apply as compulsory; levy: impose a tax" could not hold meaning if people weren't liable for their taxes. Therefore, its use constitutes the "liability" sought by tax protesters using such an argument.

“The imposition of a tax is certainly a function of government and creates an obligation....” U.S. v. Childs, 266 U.S. 304 (1924).

I.R.C. section 6151 directs that any person required to file a return “shall, without assessment or notice and demand from the Secretary, pay such tax to the internal revenue officer with whom the return is filed, and shall pay such tax at the time and place fixed for filing the return.”

“When a statute says that a person shall pay a given tax, it obviously imposes upon that person the duty to pay...” U.S. v. Chamberlin, 219 US 250 (1910)

“The payment of income taxes is not optional ... and the average citizen knows that payment of income taxes is legally required.” Schiff v. United States, 919 F.2d 830, 834 (2nd Cir. 1990).

“Purportedly in support of his claim, plaintiff submitted a statement along with the Form 1040, in which he argues that no provision of the IRC establishes an income tax ‘liability.’ The plain language of the IRC, however, belies this assertion, stating in section 1 that a tax is ‘hereby IMPOSED on the taxable income of every individual’ (emphasis added). Although plaintiff attempts to distinguish between ‘imposing’ a tax and creating a ‘liability’ for a tax, there is no difference. Every individual has an affirmative duty to pay taxes.” Porcaro v. United States, 84 AFTR2d ¶99-5547, No. 99-CV-60406-AA (U.S.D.C. E.D. Mich. October 25, 1999).

“Sasscer makes the puzzling argument that section 1461 is the only provision in the Internal Revenue Code that imposes liability for payment of a tax on ‘income.’ Without belaboring the issue, the Court notes that 26 U.S.C. section 1 could hardly be more clear in imposing a tax on ‘income.’” United States v. Sasscer, 86 AFTR2d ¶2000-5317, n. 3, 2000 TNT 186-76, No. Y-97-3026 (D.C. Md. 8/25/2000).[/list]

Etc. etc. If prosecution didn't challenge once again, it's because this is only a short list of cases that establish such liability.

quote:

---

showed that the IRS knew that he was not required to mail or file a return.

---

I've gotta call BS on this one. What possible rationale would justify such testimony when he was, in fact, required to file a return?

quote:

---

The government also attempted to institute "guilt by association" in that they claimed Mr. Long had known and relied upon persons of questionable character. They argued that the writers of some of the books he read and people he knew had been convicted of tax-related charges in the past and were in fact criminals.

---

A claim probably not without merit, which should have provided some reasonable doubt as to whether he willfully failed to file. I guess, however, that in the absence of some opposing sounding board such as myself he just took his understanding of the law for granted even while it was badly mistaken.

quote:

---

Mr. Long added that he did not rely on anything that he did not personally check out thoroughly.

---

This should have absolutely established his guilt. If he had checked thoroughly he'd have known, as I do, that there's nothing voluntary about filing your taxes.

quote:

---

In summation Attorney Larry Becraft reminded them that Galileo was imprisoned for holding a belief that conflicted with one which everyone else knew as a fact; and that Columbus, acting on a belief which conflicted with what everyone else knew as a fact, discovered something no one else thought existed.

---

Idiocy. Fact rules. Belief is moot.

quote:

---

Failure to file an income tax return, failure to pay income taxes, and attempted income tax evasion are not crimes in this country.

---

Sure they are. If you doubt it, you should try it.

quote:

---

Ignorance of the law is an excuse.

---

Oh...the BIG qualifier. I certainly hope that no one here goes down that road.

quote:

---

Second, the government must assemble evidence and prove beyond a reasonable doubt to the satisfaction of twelve jurors that you intended to violate the law.

---

I don't think this would be a difficult threshold for a prosecuting attorney to pass. You can find twelve tax filing jurors, number one. Number two, it seems rather reasonable to even believe that a person knows that they have to file taxes. It's unreasonable to have the belief that a person legitimately wouldn't know that they are required to file their taxes, especially with a life long citizen.

quote:

---

At least some federal appellate courts hold that the belief or misunderstanding is subjective not objective.

---

"At least some" says it all. Don't be a statistic.

posted December 04, 2013 05:36 PM            

It is not an uncommon occurrence for taxpayers, even those well-experienced with federal tax audits, to become discomposed upon receipt of an Internal Revenue Service summons. Understandably, a summons by the IRS tends to cause taxpayers to fear the worst – usually, a criminal tax investigation.

In reality, summonses are used by the IRS for a variety of reasons, and they are not always employed as part of a criminal tax investigation.

Types of Summonses

The Internal Revenue Code provides statutory authority for the IRS to issue summonses in order to ascertain the correctness of any tax return, make a substitute return where none has been filed, or determine the liability of any person for any internal revenue tax. Section 7602 of the Internal Revenue Code specifically authorizes the IRS to issue three types of summonses: (1) a summons for books, records and other documentary data; (2) a summons for the testimony of the person concerned; and (3) a summons for the testimony of third parties.[1] A summons to a third party recordkeeper can be served by certified or registered mail. Service of a summons on any other third party, or on the taxpayer himself, must be done by hand or by leaving the summons at the taxpayer’s home or business (depending on the nature of the tax issue).

Enforcement of Summons

There are two significant popular misconceptions about IRS summonses. In the first place, the IRS is not required to have probable cause in order to issue a summons.

Second, IRS summonses are not actually self-enforcing. In other words, for the IRS to enforce a summons, it must first seek an order from a Federal District Court of competent jurisdiction.

To secure judicial enforcement of a summons, the U.S. Supreme Court requires the IRS to establish that (1) the investigation will be conducted pursuant to a legitimate purpose; (2) the inquiry may be relevant to that purpose; (3) the information sought is not already in the IRS’ possession; and (4) the administrative steps required under the Internal Revenue Code have been followed.

Before issuing an enforcement order, a District Court will then generally order the taxpayer to appear and show cause as to why compliance should not be ordered. Failure to comply with an order to show cause will usually result in a contempt order. If the District Court does order the summons enforced, the taxpayer will have the right to appeal such decision to the appropriate Circuit Court of Appeals.

Complying with a Summons

Although an attorney can and should accompany the summoned person, the attorney is not permitted to appear instead of the person. If the taxpayer desires to claim a privilege (such as attorney-client privilege, or the privilege against self-incrimination), he or she must still appear but can claim the privilege in response to each question or request for production of documents.

Fortunately, no summons can be issued by the IRS with respect to any person if there is any “Justice Department referral” in effect with respect to such person. A “Justice Department referral” means any recommendation by the IRS to the Attorney General of a grand jury investigation of, or the criminal prosecution of, such person for any offense connected with the administration or enforcement of federal tax law. It also includes most situations involving a request by the Justice Department to the IRS for the disclosure of any tax return or return information relating to such person.

Additionally, while the IRS can request that a summoned taxpayer bring records, the IRS does not have the authority to require a taxpayer to create documents or prepare returns not in existence on the date that the summons was issued.

Contesting the Issuance or Enforcement of a Summons

A summons can be contested on substantive grounds, technical or procedural grounds, or on Constitutional or other privilege grounds. Substantive defenses typically include arguments over whether a particular matter is part of a legitimate investigation, or whether the persons or documents summoned are relevant to an IRS investigation.

Technical or procedural defenses usually are not worth litigating because the IRS can simply issue another summons (that has been corrected for its technical or procedural errors) by the time that the defense is argued in an enforcement proceeding in Federal District Court.

A taxpayer who has received a summons may also be able to assert privileges under the Fourth and Fifth Amendments to prevent the summons from being enforced. These rights and privileges are asserted where the information sought is incriminating and protected from disclosure under the Fifth Amendment to the Constitution, or where the summons itself is so broad that it constitutes an unreasonable search under the Fourth Amendment to the Constitution.

In most cases, however, if a taxpayer does have grounds to contest the issuance or enforcement of a summons, a compromise can be reached with the IRS. Such compromises are beneficial to the extent that they eliminate the need for costly litigation or hearings in Federal District Court.

Going Forward

It should be noted that a number of other defenses and challenges to IRS summons not set forth above are possible. It is extremely important to consult with a tax attorney immediately upon receipt of an IRS summons in order to protect one’s rights, privileges and defenses to the summons. Failure to respond to a summons can waive otherwise valid defenses to the issuance and enforcement of the summons.

posted December 04, 2013 07:42 PM            

quote:

---

Is it any wonder then the fine-tune processing by IRS and Justice Department of criminal tax cases? After two years of investigation by the IRS special agent of the Criminal Investigation Division (CID) and review by his supervisor, plus further review by chief of CID and IRS District Director, the case then goes to the office of District Counsel, the IRS lawyers, for review. Then to Justice Department in Washington, D.C. for review where it may remain for another year or two. Then back to the local U.S. Attorney for further fine-tuning and additional investigation, if necessary, and the ultimate prosecution by way of grand jury indictment or, in the case of misdemeanor rather than felony, by a charging paper signed by the U.S. Attorney, called an "Information." A long, arduous pipeline.

---

I have no idea of the accuracy of these statements. In fact, I don't know why I'm addressing this other than to point out that the accuracy of these statements isn't established within these statements. It's just "info" from some site that isn't reputable where the law is concerned, which states as much up front. Skipping to the next post.

quote:

---

You should change your Username to Status Quo. No doubt had you lived in an earlier day you would have been very eloquently defending why the earth is flat and why the sun revolves around it...and the medical quackery of the bleeders.

---

Once again with the cop-out rather than the argument.
Perhaps you should change your username to "Maverick" to convey that the belief in anything that goes against any liberal argument is grounds for praise as "independent thought" despite lacking any credibility in reality.
Facts trump labeling. It's time you guys learned that. Your beliefs don't constitute reality.
I wish you no ill-will. I wish only that you come to the right conclusions.

quote:

---

science has evolved

---

Science is constantly evolving. Don't act as if I've ever said otherwise. It's your unchanged belief that the science has been wrong for years. You are no more an advocate for science than I am, and you are, by virtue of your position over the years, less of an advocate, because you've never allowed yourself to go along with the science.

quote:

---

When one unquestioningly believes what one is told, intelligence and reasoning is wasted.

---

When you post these "theories" for how things work, you're not engaging in reasoning or utilizing your intelligence. If you want to say that you're using reason and intelligence research what is real. NOT what some guy tried and got away with. Not anomaly cases that don't prove your overall point but rather give false hope for others with irrational beliefs. It would be one thing if you were even remotely close to keeping up in this debate, but it's another thing altogether to believe a hodgepodge collection of information that paints a picture of reality that you'll never encounter yourself. You might as well believe children's stories if you're going to put your faith in the false premises of these tax protesters.

quote:

---

Here is the link. They forbid reproduction. Go read what tax attorneys say.

---

Read it. I don't take issue with most of it. The paragraph citing 4th and 5th Amendment claims is vague. It says you "may" be able to assert these in response to a summons. I'll refer you to my previously posted responses to the 5th with regard to the likelihood of succeeding in such a venture.

quote:

---

It must really eat at you that a summons isn't enforceable. You were so shocked. And you hate it. Why? Because you are so adamant about defending the status quo

---

Why are you assigning emotions to me? I'm not a psychopath, but I do use my empathy in constructive ways, which is to say I NEVER employ empathy as my primary mode of understanding. It's always reason first. Feelings second...or later...or not at all. I do have Moon conjunct Pluto and Mercury quintile Pluto along with my 8th house Sun. I know how people operate, and I can generally divine what I need to know about a person, but even that is a function of reason much of the time.

A summons is enforceable. We've been over that. Nothing shocking. I don't hate it. I could care less about the status quo as this is not a conversation about the status quo. It's a conversation about reality.

quote:

---

And the IRS website confirms it.

---

It confirm that it is enforceable. I don't know why you keep insisting that the IRS sides with you whilst not providing any proof of such claim. I've posted for you the IRS's word on the matter. Here it is again: http://www.irs.gov/Tax-Professionals/The-Truth-About-Frivolous-Tax-Arguments-Section-I#_Toc350157889

quote:

---

You know an idiot's blog saying there are penalties to not complying with an Administrative summons is sheer hogwash and that his wraped opinion doesn't supersede the Supreme Court, yet you still post that nonsense.

---

I didn't, but the IRS says itself: "Failure to comply with an IRS administrative summons also could subject the non-complying individual to criminal penalties, including fines and imprisonment. I.R.C. § 7210." At the same website I just posted again.

quote:

---

The Supreme Court case below also confirms that judges tend to lean toward NOT siding with the IRS with a summons, countering your earlier weak argument, as well.

---

It doesn't. For someone that's been calling my reading comprehension into question, you have a bit of explaining to do on this one.

The cases show that the federal courts have taken seriously their obligation to apply this standard to fit particular situations, either by refusing enforcement or narrowing the scope of the summons.

quote:

---

I think there is ample evidence from those in authority that an IRS "administrative" summons is powerless.

---

Your belief in something is not evidence of its truth.

quote:

---

So, stop posting rubbish from a blogger that says anything otherwise.

---

You sure seem mad about that blogger. Curse that blogger! You're welcome to see what the IRS says itself.

quote:

---

Case closed.

---

You wanna take a poll on that? Invite some people over here to review the statements, and see whether you've effectively made your claim, or if you've effectively made a superior claim to mine?

quote:

---

But here is some more for you to chew on in case you missed it the first time around:

---

Yay! I like when you post evidence rather than simply relying on what you think.

quote:

---

Second Circuit Court of Appeals rules that a taxpayer can ignore an IRS summons!

---

Only if included is the caveat that the summons has not been endorsed by a District Court judge. "In light of this, we view ourselves today as completing a task begun forty years ago and hold that, absent an effort to seek enforcement through a federal court, IRS summonses apply no force to taxpayers, and no consequence whatever can befall a taxpayer who refuses, ignores, or otherwise does not comply with an IRS summons until that summons is backed by a federal court order.

Once you ignore that initial summons, you can rest assured that an endorsed summons is on its way, particularly because you ignored the initial summons, which the court deems to be a reasonable part of your due process. Essentially, you do yourself no favors by ignoring such summons.

quote:

---

Let's hear no more bullshiit that "Voluntary Compliance" means or could mean "Mandatory or Compulsory Compliance"

---

Big smiley post, huh? I've already addressed this. It's not voluntary. It is mandatory. From me, earlier:

The term "imposed" meaning, "1. To establish or apply as compulsory; levy: impose a tax" could not hold meaning if people weren't liable for their taxes. Therefore, its use constitutes the "liability" sought by tax protesters using such an argument.

“The imposition of a tax is certainly a function of government and creates an obligation....” U.S. v. Childs, 266 U.S. 304 (1924).

quote:

---

As Jwhop demonstrated, voluntary cannot be mandatory.

---

Except that he established no such thing, and I have established the opposite with case citation.

quote:

---

Because the code is written to intentionally deceive.

---

More soapbox opinion not grounded in reality?

quote:

---

The word "shall" in a statute may be construed to mean "may," particularly in order to avoid a constitutional doubt. Fort Howard Paper Co. v. Fox River Heights Sanitary Dist

---

A distraction from the point rather than a tackling of it.

United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993), cert. denied, 510 U.S. 1193 (1994) – the court held that “[a]ny assertion that the payment of income taxes is voluntary is without merit.”

United States v. Tedder, 787 F.2d 540, 542 (10th Cir. 1986) – the court upheld a conviction for willfully failing to file a return, stating that the premise “that the tax system is somehow ‘voluntary’ . . . is incorrect.”

Woods v. Commissioner, 91 T.C. 88, 90 (1988) – the court rejected the claim that reporting income taxes is strictly voluntary, referring to it as a “‘tax protester’ type” argument, and found Woods liable for the penalty for failure to file a return.

United States v. Schiff, 379 F.3d 621 (9th Cir. 2004), cert. denied, 546 U.S. 812 (2005); see also http://www.usdoj.gov/tax/txdv04551.htm. – the court affirmed a federal district court’s preliminary injunction barring Irwin Schiff, Cynthia Neun, and Lawrence N. Cohen from selling a tax scheme that fraudulently claimed that payment of federal income tax is voluntary. In subsequent criminal trials, these three individuals were convicted of violating several criminal laws relating to their scheme. See 2005 TNT 206-18. Schiff received a sentence of more than 12 years in prison and was ordered to pay more than $4.2 million in restitution to the IRS; Neun received a sentence of nearly 6 years and was ordered to pay $1.1 million in restitution to the IRS; and Cohen received a sentence of nearly 3 years and was ordered to pay $480,000 in restitution to the IRS. See http://www.usdoj.gov/opa/pr/2006/February/06_tax_098.html.

United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993), cert. denied, 510 U.S. 1193 (1994) – the court stated that the “[taxpayers’] claim that payment of federal income tax is voluntary clearly lacks substance” and imposed sanctions in the amount of $1,500 “for bringing this frivolous appeal based on discredited, tax-protester arguments.

Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988) – the court rejected Wilcox’s argument that payment of taxes is voluntary for American citizens and imposed a $1,500 penalty against Wilcox for raising frivolous claims.

Etc. etc.

quote:

---

Your source lied and said there was not a single win for protestors in two decades.

---

You're still hung up on the blogger. I had to go search out my own post to see what you've got yourself hung up on. Ok, so they claimed, "the reason being that every case from this decade (and the last, for that matter) has been a loser for tax protestors." You seem to disagree, but thus far when you've posted "wins" you've posted cases where the people still had to pay their taxes. They "win" one section of trial, and you seem to think that the win negates all of the losses. It doesn't. Long had to pay his taxes. Vernice had to pay her taxes. Bannister got himself off of criminal conspiracy charges, but his clients were convicted because they followed Bannister's poor advice. Don't tell me it's not about his CPA license or his client. How are we supposed to follow this guy for tax advice if he's sending his clients to jail? If he isn't ALLOWED to keep his CPA license for reasons of not giving advice in good faith (i.e. endorsing tax-protester tactics)? How are we supposed to divine from his example that we don't have to file taxes, when he did that and lost?

quote:

---

Your failure to stay on task is distressing.

---

That's a strange accounting for my mostly line-by-line rebuttal. You keep trying to frame me in some poor light, but I'm not the person with the idea that I can buck the system based solely on an erroneous belief.

quote:

---

The Supreme Court is the supreme law of the land. If they say there can be no penalty for failure to submit to a summons, then that's it. The IRS can't do otherwise.

---

They can do otherwise. They can get the endorsement of the court.

quote:

---

If they do, that makes the IRS lawbreakers, which you apparently support.

---

No, I don't "apparently" support that. That wouldn't be an accurate accounting of my position.

quote:

---

Because the IRS are criminals who routinely violate the law.

---

"Puffery" You better learn this legal term before you ever step into court.

quote:

---

The case you posted about records lost in a fire is a moot point.

---

It's not. It's an especially troublesome case, because even fire could NOT save the person from having to produce his tax records. Your contention that an Affidavit would have resolved it is moot. There's no indication whatsoever that the court would agree that an Affidavit would prove sufficient.

quote:

---

Paying your debt to lawbreaker third parties is not "doing the right thing." It's supporting criminality.

---

False. A third party collection agency is legally allowed to collect a debt. FDCPA Section 803, Part 6 (f)(4) (Not sure my citation is written right, but you should be able to find it: "concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor." (i.e. an agency that bought the debt; also known as Factoring). It is a legal practice as far as I know.

posted December 05, 2013 02:18 PM            

The judicial device for enforcing the administrative summons is provided by IRC §§ 7402(b) and 7604. IRC 7604(a) provides that the jurisdiction to compel compliance with a summons is in the United States District Court for the district in which the person summoned resides or is found. Subsection (b) provides for a body attachment procedure, which "was intended only to cover persons who were summoned and wholly made default or contumaciously refused to comply" and is not to be used where there was a refusal based upon a claim of privilege. Reisman v. Caplin, 375 U.S. 440 (1964).

posted December 05, 2013 02:33 PM            

Reisman v. Caplin

375 U.S. 440, 445, 84 S. Ct. 508, 512, 11 L.
Ed. 2d 459 (1964), . . . by construing the contempt and punitive
provisions of § 7604(b) and § 7210 as applicable only to persons
who “wholly made default or contumaciously refused to comply” but
not to a witness who “appears and interposes good faith challenges
to the summons.”

posted December 05, 2013 04:39 PM            

quote:

---

Your assertion that a lower court can grant the IRS law-breaking powers in defiance of the Supreme Court is madness!

---

I'm just doing a quick reading to see where things are today. I don't really have time to sit here and go through everything again.

I'm glad you clarified that you weren't implying that third party debt-holders are inherently illegal. When you don't provide the context of what you're saying, it's difficult to know what you're saying. It read as if you were trying to make all third party collectors out as lawbreaking.

I never asserted that lower courts can grant the IRS law-breaking powers. I don't know where you get that implication. My contention all along has been that one should be attentive to IRS demands, because failure to do so will likely escalate things, and make them worse. That's been my contention from page one. You endorsed ignoring auditors. I said don't ignore auditors, don't make things worse for yourself.

From my brief reading it appears that you still hold the belief that you don't have to show your books either. I don't believe that's true. The court-ordered summons can apply to those as well, and there isn't a 5th amendment argument that gets you out of it (to my knowledge).