In the U.S. District Court for the
Eastern District of Virginia
Jeffrey T. Maehr
United States of America
Case No. 3:08-mc-00003-HEH
BRIEF AND MEMORANDUM OF LAW IN RESPONSE TO RESPONDENTS "MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY DENIAL OF PETITION TO QUASH & SUMMARY ENFORCEMENT OF SUMMONS"
re: Summons to Capital One Bank, Custodian of Records, Subpoena Coordinator, P.O. Box 85032, Richmond, VA 23285.
Jeffrey T. Maehr, Pro Se, acting under and depending on equal protection under the Constitution, The Judicial machinery of the Rule of Law, Rules of Evidence and Rules of Civil Procedure, comes now before this Honorable Court. Petitioner submits this brief refuting Respondent's
Memorandum, and requests the Summary Denial of Respondent's Summary Enforcement Motion.
Petitioner moves this Honorable Court to take Mandatory Judicial Notice under Federal Rule 201(d) of the following case law:
"The Court is free to act in a judicial capacity, free to disagree with the administrative enforcement actions if a substantial question is raised or the minimum standard is not met. The District Court reserves the right to prevent the "arbitrary" exercise of administrative power, by nipping it in the bud." United States v. Morton Salt Co., 338 U.S. 632, 654.
Petitioner begs the Honorable Court's indulgence and forgiveness in any redundance, or incorrect form in these documents, but requests the Court look at the intent, law and facts presented, above presentation and form, as noticed in Petition to Quash.
BRIEF AND MEMORANDUM (emphasis mine throughout unless otherwise stated)
IN RESPONSE TO RESPONDENT MOTION ARGUMENTS
a) The Respondent failed to address multiple challenges to authority or jurisdiction, (even though supported with case law and documents) in this issue, with areas neglected named in Petition to Quash, at:
line 121, a) page 6,
line 125, b) page 6, (The US House of Representatives' Office of the Law Revision Counsel observes that of the 50 titles in the US Code, only 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 44, 46, and 49 have been enacted as positive law, leaving a 27 title majority both un-enacted, and often lacking published rules for significant sections. This means it is NOT actual law, and title 26, the "income tax" title, is NOT positive law! See original Petition to Quash, attachment F and H).
line 130, c) page 6,
line 136, d) page 7,
line 142, f) page 7,
line 165, g) page 8,
line 173, h) page 8,
line 177, I) page 9,
line 189, k), page 9,
line 205, m), page 10,
line 214, o), page 10,
line 219, p), page 11,
line 224, q), page 11,
line 229, r), page 11 (To be further addressed by brief with case law below),
line 240, t), page 11;
b) Petitioner denies any Prima Facie case as stipulated by Respondent in Memorandum due to the plethora of documented evidence denying this, as sited in Petition to Quash and expounded upon in the below Brief and Memorandum of law, and Affidavit.
c) Respondent, throughout Motion for Summary Denial, claims to NOT have any "information" regarding "income" it is seeking from the Summons to third party. This is denied by Petitioner, based on Prima Facie evidence from Petitioner's Social Security Statements from the Years 2005, 2006, 2007 and 2008, (See attachment R) clearly showing the Social Security Administration (SSA) has some kind of figures which it is reporting as "income" for 2003, 2004 and 2005, and a zero figure for 2006. It is doubtful that the SSA created these figures out of thin air, and seems to support the obvious fact that Respondent is, once again, violating the law by providing false testimony to this Honorable Court in denying having any already established figures created by someone in the government. Are we to believe the SSA has financial information that the Respondent doesn't, since the SSA can report only what it receives FROM Respondent? Petitioner is waiting for response from the Social Security Administration regarding the source of these figures and what they are based upon, which is possible evidence of further fraud by Respondent.
e) Respondent claims to have no material regarding any 1040 filing for year 2004, but Respondent has been attempting to extract a "frivolous income tax return" penalty for the same year. (See Attachment C). Respondent can't have it both ways. Petitioner responded to this frivolous, "frivolous penalty" document multiple times (the second such penalty attempt by Respondent) requesting verification and authentication for this attempt at fraud and extortion, but has received only hearsay testimony and no relevant response to date.
f) Respondent is attempting to obtain records dating back to 2003, even though Respondent's own code has a three year limit to how far back they can go to audit or attempt collections. However, this is a mute point given the above and below data, but Petitioner lists it regardless to show the pattern of willful and wanton disregard for laws by Respondent.
g) Respondent incorrectly stated that Pure Health Systems is an LLC, which it is not and has not been for many years. Petitioner twice submitted statements declaring the LLC to no longer exist as such, and the State of Colorado tax files for Petitioner's sales taxes paid reflect this fact as well. (See Attachment G).
i) Petitioner challenges the legality of the Department of Justice (DOJ) to be representing the Respondent, since previous documentation raises the "substantial question" as to whether the Respondent is even a "Federal Agency," a position that is clearly denied by Respondent in Diversified Metal Products v. T-Bow Company Trust, IRS, and Steve Morgan, Civil # 93-405-E-EJL - (See Attachment S). If the Respondent is NOT a Federal Agency, under what laws is it acting and under what laws can the DOJ be representing this seemingly non-federal agency?
j) Petitioner denies that the Respondent has ANY jurisdiction over Petitioner: (See Attachment J).
GENERAL ARGUMENT BRIEF
In order for citizen's to know what they are legally compelled to do, they must know what the law says, and understand it. If there is no knowledge of the law, obedience is not possible, and where a citizen seeks to discover the actual laws, but is thwarted, threatened and denied such, he is left to depend on his own research and that of others to be sure he can comply, in fact. All citizens are liable for the law, and cannot claim ignorance. All citizens have a moral and legal responsibility to determine what the law is and to determine whether any government employee is truly within the law when that individual is acting in the name of any government or other agency:
"Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation." Ninth Circuit Court of Appeals, Lavin v Marsh, 644 f.2D 1378, (1981).
"All persons in the United States are chargeable with knowledge of the Statutes at Large... It is well established that anyone who deals with the government assumes the risk that the agent acting in the government's behalf has exceeded the bounds of his authority." Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 9th Cir., (1981)
Petitioner has been attempting to do this very thing for well over 5 years, depending on the Respondent's own IR Code rules... (See Attachment F at "IRS Mission Statement"). In order for justice to prevail and for the truth of this issue to be forthcoming, it is necessary to address the foundation of Respondent's whole case... that the Respondent has a right, jurisdiction and authority to even consider examining personal records of Petitioner. It is Petitioner's position that there is absolutely none of these evident in the Respondent's positional record, despite Petitioner's massive "good faith" efforts to obtain such documentation for over 5 years.
(Original affidavit and complete attachments are in Maehr's IMF file Respondent already has).
It might be a temptation by this Honorable Court to disregard issues brought up in this case as "not being before the Court," but Petitioner believes these issues have been raised by Respondent and have a direct and unequivocal bearing upon the whole issue and to Respondent's position. To set aside these foundational issues which are the underpinnings of Respondent's entire position, severely reduces or eliminates Procedural Due Process and Petitioner's right to a fair hearing and consideration of all available legal, Case law, Constitutional Law and Congressional evidence to support Petitioner's position that Respondent has NO jurisdiction or authority to request personal information, especially from a third party source, and especially based on presumed obligations of Petitioner.
No Courts have willingly addressed all aspects of this issue, which cannot logically and reasonably be isolated from all other aspects of the issue. Even though Respondent claims to stand on Court cases, these cases are isolated, microcosmic aspects, taken out of context and painted with a fraudulent brush by Respondent to appear to be legal and valid, but when placed in the light of the Constitution, the Rule of Law, Civil and Criminal Procedures, and the Rule of Evidence, the fraud is exposed.
If Respondent's case foundation and their claimed authority is void and extra-legal, the Summons becomes a mute issue immediately, and vitiates all ongoing actions, as declared by the Courts in Petitioner's previous Petition to Quash Brief. (See line 66, k, page 3); also;
"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void and ineffective for any purpose, since its unconstitutionality dates from the time of its enactment... In legal contemplation, it is as inoperative as if it had never been passed... Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no right, creates no office, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it... A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to super cede any existing law. Indeed insofar as a statute runs counter to the fundamental law of the land, (the Constitution - JTM) it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it." Bonnett v. Vallier, 116 N.W. 885, 136 Wis. 193 (1908); NORTON v. SHELBY COUNTY, 118 U.S. 425 (1886). See also Bonnett v Vallier, 136 Wis 193, 200; 116 NW 885, 887 (1908); State ex rel Ballard v Goodland, 159 Wis 393, 395; 150 NW 488, 489 (1915); State ex rel Kleist v Donald, 164 Wis 545, 552-553; 160 NW 1067, 1070 (1917); State ex rel Martin v Zimmerman, 233 Wis 16, 21; 288 NW 454, 457 (1939); State ex rel Commissioners of Public Lands v Anderson, 56 Wis 2d 666, 672; 203 NW2d 84, 87 (1973); and Butzlaffer v Van Der Geest & Sons, Inc, Wis, 115 Wis 2d 539; 340 NW2d 742, 744-745 (1983).
The issue is NOT whether the government has a legal right to tax citizens. This is well established. The question raised is HOW Respondent may tax citizens of these united States, and how it may apply law in doing so. Laws or activities, including the IR Code itself, which circumvent the Constitution, the Rules of Civil and Criminal Procedure and the Rules of Evidence, are void. Taxes are to be constitutionally applied and legally enforced.
The IR Code is so convoluted, covered by "smoke and mirrors," so as to make it extremely difficult for any average person of intelligence to be able to piece together the evidence, but this has been done, in part within, and which evidence Petitioner is presenting. This "smoke and mirrors" is purposefully and craftily concocted so as to confuse and mislead the public and this Honorable Court. Even the Government's own personnel verify this, and yet Respondent claims to have authority to enforce what they don't even likely understand themselves, and which evidence Petitioner presents within to affirm this conclusion.
"Eight decades of amendments...to [the] code have produced a virtually impenetrable maze...The rules are unintelligible to most citizens...The rules are equally mysterious to many government employees who are charged with administering and enforcing the law." Shirley Peterson, former IRS Commissioner, April 14, 1993 at Southern Methodist University.
ROBERT C. MCKEE v. COMMISSIONER OF INTERNAL REVENUE No. 04(c)74846 IRS No. 4036(c)03: The Tax Court held the IRS was not liable for their calculation blunders on the basis that the Tax Court, in its discretion, claimed the regulations written by the IRS and codes were so complex that the IRS could not be held liable for its failure to understand them. On December 4, 2006, the 9th Circuit reversed the United States Tax Court. The Commissioner of the Internal Revenue asked the 9th Circuit not to make the decision public.
"The IRS at all times must use the enforcement authority in good faith pursuit of the authorized purposes of Code." U.S. v. La Salle N.B., 437 U.S. 298 (1978).
Respondent claims to be standing on the law, but is showing complete disregard in these proceedings for not only the Rule of Law, and IR Code itself, but has failed to provide ANY law that makes Petitioner liable for "income" taxes to begin with, which would have to be a fact of record to make Petitioner a "taxpayer," as compared to a "tax payer," which other taxes Petitioner routinely pays, including sales tax on sales in business.
Respondent is grossly silent and showing wonton disregard to ALL elements of these issues:
"Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading. . . We cannot condone this shocking behavior by the IRS. Our revenue system is based on the good faith of the taxpayer and the taxpayers should be able to expect the same from the government in its enforcement and collection activities. If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately." U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen, 64 A. 932.
"Silence is a species of conduct, and constitutes an implied representation of the existence of facts in question. When silence is of such character and under such circumstances that it would become a fraud, it will operate as an Estoppel." Carmine v. Bowen, 64 U.S. 932.
"Fraud in its elementary common law sense of deceit, includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, and if he deliberately conceals material information from them he is guilty of fraud." McNally v. U.S., 483 U.S. 350, 371(c)372, Quoting U.S. v Holzer, 816 F.2d. 304, 307.
Emotions, beliefs, feelings and conventional wisdom have NO place in this Honorable Court, and only facts in evidence can have affect and can legally and Constitutionally be considered.
Respondent, in argument, begins with numerous presumptive, unproven, and unauthenticated hearsay testimony as described herein:
a) Page 1, "Questions Presented," and Page 6, "Argument," Respondent testifies that Petitioner failed to file federal income tax returns for years 2003 through 2006.
This is Respondents first presumptive argument, but it is baseless and wholly without merit. Respondent is stating an unauthenticated statement with no authenticated evidence. No evidence whatsoever has been forthcoming to even begin to claim that Petitioner is legally liable to file any 1040 tax returns. In actual legal fact, the 1040 form is a void document under the Paperwork Reduction Act (PRA) and is not required to be filed unless voluntarily. (See Attachment M).
b) Page 1, "Questions Presented," Respondent testifies that the IRS seeks to "determine Maehr's correct Federal income tax liabilities..." with the use of third party private documents. This, too is mute.
"The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not.
*"Papers are the owner's goods and chattels; they are his dearest property, and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? Petitioner can safely answer, there is none; and therefore it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society." at 628. BOYD v. U S, 116 U.S. 616, 623 (1886):
Respondent's attempts to access Petitioner's private information, whether from third party sources or Petitioner directly, is to violate Petitioner's privacy and circumvent the law.
c) The Respondent uses the term "income," throughout Respondent's Memorandum, for which there is no definition in the IR Code, and for which Congressional testimony and case law have long ago settled, (See Attachment A), It also uses the words "tax liabilities," seemingly to indicate the belief that there exists a possible "tax liability" where one has been denied by affidavit and attachments. No place in the IR Code is there any documented evidence making Petitioner personally liable for said "income" tax. "Income" received for "labor provided," is NOT what the Founding Fathers, or Congress, originally considered it to mean, (original intent) and that the "exchange" of value (labor for cash or other compensation) provides nothing "materially different" that can be legally or Constitutionally "taxable" (See Attachment F) and (See Attachment FF).
d) Page 1, "Questions Presented," Respondent testifies that the IRS "issued an administrative summons directed to Capital One Bank." This administrative summons is extra-legal, as previously ruled on by the Courts:
"It will be noted that our decision here is based upon our holding the Government's lien was irregular, insufficient and valueless from a procedural standpoint for failure to serve the statutory notice and demand in connection therewith and for failure to comply with required procedures."
"In developing that conclusion many circumstances tend to show that not only were these required procedures not complied with, but that Coson was not a taxpayer and not liable for the tax to begin with..." U.S. v. Coson.
While this addressed a lien, the law backing the Court's decision stands in this issue. (See Attachment D). Also, In the Schulz v IRS case (Schulz v. IRS, Case No. 04-0196-cv), and subsequent ruling from the U.S. Court of Appeals for the Second Circuit, the Court upheld its original ruling against any IRS summons as having power over citizens without a federal Court order.
Most significantly, the Court held, relying on a 1920 decision by the United States Supreme Court, that the principles of due process apply to ALL IRS administrative orders, and all Summons, levies or liens are all "administrative orders" and therefore NOT judicial actions. Petitioner takes that to mean the Court's order applies not only to Respondent first party summonses, but also to Respondent third party summonses.
The Court states:
"...the government appears to argue alternatively, or in combination, that: 1) the government may use the federal Courts to punish taxpayers who disobey an IRS summons even if the summons is never enforced by Court order; 2) if an IRS summons is enforced by a Court order, the Court may punish disobedience of the IRS summons before providing the taxpayer an opportunity to comply with the Court's order; or 3) if an IRS summons is enforced by a Court order, the Court may punish disobedience of the IRS summons even if the taxpayer complies with the Court' order. In our view, expressed in Schulz I, none of these proposals is consistent with the comprehensive tax-enforcement scheme in which 26 U.S.C. sections 7210, 7604(a) and 7604(b) are situated, constitutional due process, or the relevant precedents of this Court and the United States Supreme Court" [ page 5].
"...the IRS summons is administratively issued but its enforcement is only by Federal Court authority in an adversary proceeding affording the opportunity for challenge and complete protection to the witness." [page 9] (italics emphasis in the original).
In what may be the most significant sentence in the 13-page decision, the Court stated:
"The rule of due process upon which we relied in Schulz I, and upon which we rely now, can be stated thus; any legislative scheme that denies subjects an opportunity to seek judicial review of administrative orders except by refusing to comply, and so put themselves in immediate jeopardy of possible penalties 'so heavy as to prohibit resort to that remedy,' Oklahoma Operating Co. v. Love, 252 U.S. 331, 333 (1920), runs afoul of the due process requirements of the Fifth and Fourteenth Amendments." [Page 10].
The Court's reaffirmation of Schulz I is clear: Any legislative scheme that forces a taxpayer to make a "Hobson's choice" between either capitulating to an IRS administrative demand, or risk bearing the pains of IRS's wrath if they refuse to comply -- without access to judicial review, violates the Constitution.
Petitioner reiterates... the "administrative summons" is facially void, as stated in Petitioner's Petition to Quash. Petitioner also points out that to grant the Summons at this point is to condone the Respondent's lawless first attempt to bring about submission to Summons WITHOUT Federal Court Order, which would have occurred had Petitioner NOT filed the Petition to Quash the initial illegal Summons.
e) Page 2, "Questions Presented," continued, Respondent testifies that "Both of these arguments have long been rejected," but fails to provide any case law, and especially, any rebuttal to previous documentation Petitioner provided to Respondent presenting factual and legal evidence proving Respondent's hearsay position.
f) Page 4, " Summary of Argument;" Respondent claims Petitioner is raising "numerous frivolous arguments," which they do not address with anything but hearsay, and then claims they only have to "establish four elements... Creating a Prima Facie case for enforcement." This is getting the cart before the horse and ignoring the true, relevant foundational material. Respondent claims jurisdiction and authority where none are in evidence or on record.
g) Page 5, "Argument," Respondent begins by raising the right for government to tax. This is NOT being contested and is muddying the waters with frivolous and irrelevant distractions to mislead this Honorable Court, and coerce the Court's responses in Respondent's favor.
h) Page 5, Respondent testifies that the Respondent has a "broad mandate," and "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." This would hold true against "taxpayers" who are made "liable" for said laws and taxes;
"The revenue laws are a code or system in regulation of tax assessment (See Attachment D) and collection. They relate to taxpayers and not to non-taxpayers. The latter are without their scope. No procedure is prescribed for non-taxpayers and no attempt is made to annul any of their rights and remedies in due course of law. With them Congress does not assume to deal, and they are neither of the subject nor of the object of the revenue laws. Persons who are not taxpayers are not within the system and can obtain no benefit by following the procedures prescribed for taxpayers..." United States Court of Claims, Economy Plumbing and Heating v. United States, 470 Fwd 585, at 589 (1972).
No evidence is presented by Respondent that Petitioner is, indeed, a "taxpayer," or "liable" for taxes, and neither has Petitioner been "assessed" for any taxes at any time:
"Tax liability is a condition precedent to the demand. Merely demanding payment, even repeatedly, does not cause liability. For the condition precedent of liability to be met, there must be a lawful assessment... (Section 301.6203-1, title 26 CFR. Assessment... 1. Name, 2. ID number, 3. Nature of assessment 4. Year of assessment, 5. Amount, 6. Signature of assessment officer, 7. Verification under penalty of perjury or seal, either a voluntary one by the taxpayer (See Attachment A) or one procedurally proper by the IRS..." Bothke v. Flour, 713 F. 2d 1405, pg 1414, [14, 15]. (See Attachment D).
None of these are documented as true and valid in the slightest, even though Petitioner has, in all good faith, requested said documentation and proof, and clarification on conflicting and even deceptive presentments and claims made by Respondent. This would eliminate all Respondent's case laws relevant to a "taxpayer," which Petitioner has definitively proven.
Again, the question is not one of right of taxation by government, but of jurisdiction over private citizens who are NOT made liable by Constitutional law or IR Code.
i) Respondent, et al., are placing this Honorable Court into a possible position where Fraud upon the Court could occur, and which Respondent would depend upon to succeed in their Motion. Acting under the color of law, Respondent is attempting to create a legal reality which does not exist in order to proceed with their Summons action, and looking to this Honorable Court to be an accomplice in these actions. (See Exhibit G of original Petition to Quash).
j) Respondent has committed Fraud by Concealment: Respondent is required by law under FRCP #4, to provide Judge's signature and stamp of the Court on the document, which they did not provide.
k) Respondent has committed Fraud by Concealment: Respondent failed to inform 3rd parties that response to a summons that does not include the Director's certification number nor an OMB number is VOLUNTARY and the PRA forbids any penalties against non-response choices. In addition, they are not legally required to respond, and to NOT notice Summoned of this fact is to coerce Summoned, under the color of law, into breaking the law, and their affirmative and fiduciary duty, to protect Petitioner's personal, private information. (See Attachment M).
l) Declaration of William Sothen: Sothen testifies to the same presumption... that Petitioner is legally "liable" to file said 1040 tax returns, and to the use of the word "income," which, again, is presumptive testimony without any evidence in fact. This provides Prima Facie evidence that possibly makes Sothen an accomplice in violation of 18 U.S.C. Racketeering Laws.
m) ONLY what someone signs and confirms as their "income" can legally and Constitutionally be used to validate any "income" and any tax on said "income:"
IR Code Sec. 6020. - Returns prepared for or executed by Secretary
(a) Preparation of return by Secretary
"If any "person" (defined as "U.S. person" in IRC 7701 (30) and discussed in Attachment F) shall fail to make a return required by this title or by regulations prescribed thereunder, but shall consent to disclose all information necessary for the preparation thereof, then, and in that case the Secretary may prepare such return, which, being signed by such "person," may be received by the Secretary as the return of such person."
No Such presentment has ever been provided by Respondent, and NO signature of Petitioner has ever been added to such document.
n) Further declarations, Case law and documentation for position:
1. In years past, Petitioner had been influenced and misled by the news media, including IRS press releases, tax preparers and by a misinformed public, into believing that Petitioner was subject to and liable for the so-called "income" tax, and that if Petitioner did not file Form 1040 Income Tax Returns and other IRS forms and documents by the April 15th deadline Petitioner would be subject to a fine and jail sentence. Petitioner no longer believes this to be Constitutional, legal or true, and believes that the IR Code (See Attachment F) DOES not provide "Plain and Clear," "income" tax liability (See Attachment FF) documentation.
2. Petitioner has since learned and believes that by signing tax forms and providing a social security number, erroneously and illegally called a "Taxpayer Identification Number,"Petitioner was providing prima facie evidence, whether factually true or not, indicating that Petitioner believed he was a "person" (See Attachment F) subject to and liable for an income tax and a person who supposedly recognized a legal obligation to file 1040 tax forms. Petitioner no longer believes that any legal liability for "income" taxes as defined by IR Code OR Constitutional Law applying to Petitioner as a sovereign individual to be factual or true.
3. Petitioner has since learned and believes that the Internal Revenue Code states exactly who is liable for other taxes, such as the excise tax on distilled spirits, clearly stating that the distiller or importer of distilled spirits shall be liable for the taxes imposed thereon (26 U.S.C. 5005(a)), and that Petitioner finds no section in the Internal Revenue Code making him personally liable for any "income" tax whatsoever.
4. Petitioner has since learned and believes that the Internal Revenue Code relates only to those who are "taxpayer(s)" as that term is defined therein, that is, only those who are subject to or liable for a revenue tax (26 U.S.C. 1313 (b) and 7701 (a) (14); Economy Plumbing and Heating v. United States, 470 F.2d 585, 589 590(1972)), or who knowingly, with full understanding, will volunteer willingly to pay such taxes. Petitioner is NOT such a person.
5. Petitioner has since learned, and believes that IRC 26 was NOT enacted as "positive law," and therefore without legal jurisdiction (See Attachment X) over most Americans, and is being improperly and illegally imposed under the color of law, (See Attachment D).
6. Petitioner has since learned and believes that sections 6001 and 6011 of the Internal Revenue Code which indicate requirements to keep records and make returns apply only to those persons who are liable for or made liable for a tax (26 U.S.C. 6001, 6011). (See Attachment F).
7. Petitioner has since learned and believes that section 6012 of the Internal Revenue Code which also indicates a requirement to make returns relates only to so-called "income" taxes under Subtitle A of the Internal Revenue Code (26 U.S.C. 6012) and additionally relates only to persons who have "taxable year(s)" (taxpayer's annual accounting periods) as that term is defined in the Internal Revenue Code (26 U.S.C. 441(b)).
8. Petitioner has since learned and believes that, Per 26 USC 7701(a)(12)), a Delegation Order from the Secretary of Treasury delegating to the Commissioner of Internal Revenue the authority to collect "income" taxes, and (per 44 USC 1505) a copy of its publication in the Federal Register, which is legally required, simply does not exist and has not been provided although requests have been made to the IRS for such publication.
9. Petitioner has and believes that the Federal Government, and hence, the IRS, has very limited jurisdiction within the sovereign 50 states, pursuant to Article 1, Section 8, Clause 17 of the Constitution. This means the IRS has NO jurisdictional authority over ANY citizen of the several states, and therefore ANY IRS action against any sovereign citizen is illegal and only under the color of law. (See Attachment B).
10. Petitioner has since learned and believes that Respondent use names and definitions in a deceiving way and that the common understanding of these names is misleading and causes misunderstandings and confusion when trying to establish actual individual tax liability. By deceptive and misleading words and statements in the Respondent's IR Code, publications and news releases, and has, by means of constructive fraud, deceived Petitioner into believing that Congress had imposed a direct tax on our earnings when in fact only persons involved in a taxed activity or event could possibly be subject to or liable for an "income" tax, and by such deception, have created the greatest extortion ever perpetrated upon a nation of free people in the entire history of the world. (See Attachment A).
11. Prima Facie Evidence established: (See Attachment P) Petitioner has repeatedly petitioned the Respondent and other government officials, including Senators and Representatives, for answers to these and hundreds of other questions, and to provide answers to, or rebuttal to, Petitioner's affidavits over the last 5+ years, but no relevant answers have been forthcoming, and Petitioner, therefore, stands on his position and belief as being true, by default, and all Petitioner has presented is entered into the public record declaring this belief.
12. Petitioner has since learned and believes that the IRS is committing mail fraud (Title 18, Part I, Chapter 63, 1341) in EACH use of the U.S. Mail service to correspond with Petitioner in attempts to extract "income" taxes, information and in administrative functions contrary to law.
13. Petitioner has since learned and believes that the IRS is not a true "Federal" agency, (See Attachment S) but is acting under color of law, and guilty of R.I.C.O. crimes. After much diligent research, several investigators have concluded that there is no known Act of Congress, nor any Executive Order, giving IRS lawful jurisdiction to operate within any of the 50 States of the Union, and no proof of lawful jurisdiction has been forthcoming after repeated requests from the IRS. (See Attachment F).
14. Petitioner is NOT a "tax protestor," and not "anti-government." Petitioner is anti-corrupt, illegal government, anti- illegal/unconstitutional taxes, and against fraud and unconstitutional activity by any. Petitioner pays taxes in many forms and swore an oath to defend the Constitution of the U.S.A..
15. Petitioner has since learned and believes that the filing of a 1040 violates Petitioner's 5th Amendment rights of self incrimination (See Attachment M) due to the fact that the 1040 form can be used against Petitioner in a Court of law, and due to the fact that IR Code and constitutional law reveal only federal employees, foreign based finance recipients, and "income" (See Attachment A) from asset recipients are subject to lawful, constitutional forms of "income" taxation, none of which Petitioner is, and which, by signing a 1040 form, Petitioner feels creates that presumption.
16. Petitioner has since learned of and believes the 8th Circuit Court's precedence that the lack of Respondent or other government response to this affidavit creates a presumption against the government, as follows: "The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests." Meier v CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence Sec 190, page 193. (See Attachment P).
Petitioner maintains they have met their burden to submit a "minimal amount of evidence" and has raised much more than "a substantial question," to support contention of civil procedure violations being done under the color of law, Respondent's lack of good faith, potential fraud, and supporting Cause for denying Respondent's Motion for Summary Denial, and to Quash Third party Summons.
Notice of Default
This is official notice that the Respondent is in default (See Attachment P) for not responding to the certified affidavit and notice dated March 25, 2006, certified mail #7005-2570 0002 2959 5402, requesting under FOIA verification of laws and answering other relevant questions. Because of this default, and the presumption of guilt due to silence, this is Demand for complete payment of all monies fraudulently stolen, and damages listed, along with interest which has accrued to date, based on precedence listed below, or as to be determined by this Honorable Court.
Supreme Court case law provides for 4 times the defrauded amount for Compensatory Damages, PLUS 200 times that total amount as Punitive Damages: CLEOPATRA HASLIP et al. v. PACIFIC MUTUAL LIFE INSURANCE, INC. 499 U.S.1, 113 Fed 2d 1, 111 sct 1032 (no. 89-1279)
Petitioner hereby, with this Brief and Memorandum of Law, affidavit and attachments, lay claim to all previous collected funds which the Respondent fraudulently collected contrary to Petitioner's legal and constitutional rights, plus the allowed-for compensatory and punitive damages allowed for under precedent stated above, and interest, and demand said funds in total payment to secured party, Jeffrey Thomas Maehr, or his heirs or assigns, in perpetuity.
Petitioner believes ALL the facts previously presented in this and previous affidavits and attachments create a Security, (15 USC), and an accounts-receivable and makes the Respondent permanently liable for all claimed amounts and damages, payable to me, or Petitioner's heirs in perpetuity, until paid in full as allowed above. Interest will continue to be required on all uncollected monies due me, till total claim is paid!
Do Now Request:
1. The Honorable Court Deny Respondent's Motion for Summary Denial, and Grant Petitioner's Petition to Quash the 3rd party IRS summons, with prejudice.
2. Declatory Judgement, with prejudice, that Petitioner is not a "taxpayer" as mislabeled by the Respondent according to all existing evidence provided, and to remove all records related to any aspect of Petitioner's fraudulent "taxpayer" status with Respondent until Respondent in good faith proves such status.
3. ORDER Respondent to provide factual and legal answers to Petitioner's original Affidavit dated March 25, 2006, point by point, to show good faith, and to comply with the IR Code itself (See Attachment F) in their responsibility to the public, and to have these answers published to the public, and to have a public forum where independent parties will evaluate all evidence on these issues in a publicly televised forum which Respondent has consistently avoided. If the Respondent truly seeks to serve the public and provide lawful direction, this response will help to easily and simply quell the rapidly growing resistance to what is evidently extra-legal activity by Respondent, and that Respondent refuses to answer for.
4. Under 26 USC 7433; Compensation for costs of time and expenses in responding to Respondent's frivolous and void actions, to include new costs for filing Brief and Affidavit, at 35 hours research and preparation, at $75 per hour, and all previous costs for Petitions as noted in previous documentation.
5. Respondent's, et al., have shown clear evidence of oppressive activities under the color of law, making themselves liable for prosecution, which I request the DOJ to research these violations and try. The Court's decision in Bivens v. 6 unknown named federal agents 403 US 388, 91 SCT 1999, 29 LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages. Also...
Under U.S.C. 7214 - Offenses by officers and employees of the United States.
(a) Unlawful acts of revenue officers or agents
Any officer or employee of the United States acting in connection with any revenue law of the United States?
(1) who is guilty of any extortion or willful oppression under color of law; or
(2) who knowingly demands other or greater sums than are authorized by law...,
6. Request injunctions against Respondent, with prejudice, from attempting any future illegal schemes to circumvent the law and Petitioner's rights, and cease and desist any and all correspondence, unless they can provide lawful, factual, authenticated evidence that would bring Petitioner within IRS jurisdiction, such as being an employee of the U.S. Government.
7. Default Judgement, with prejudice, against Respondent regarding Original Affidavit financial claims on funds fraudulently obtained from Petitioner by Respondent without lawful authority. Refund based as stated in Original Affidavit provided to this Honorable Court, with interest, to be provided within 21 days of Judgement and as described in Original Affidavit.
8. Find Respondent, et. al., in Contempt of Court for all the obvious violations of law which Respondent, et. al., are attempting against the Rule of Law, Rule of Civil Procedures and Rules of Evidence, and against this Honorable Court.
Enclosed: Attachments: A, B, C, D, F, FF, G, I, K, M, P, R, S, X; Certificate of Mailing.
Respectfully submitted in the spirit of truth and freedom for our great country, and dated this__________ day of May, 2008.
Jeffrey T. Maehr, Pro Se
924 E. Stollsteimer Rd
Pagosa Springs, CO 81147