usa v harter jurisdictional challenge 101013 doc 89 - 047112581767 ocr

Case 5:13-cr-00026-PRL Document 89 Filed 10/10/13 of 65 PageID 961

Case styled:

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

UNITED STATES OF AMERICA

FILED

"q 13 OCT I 0 PM I: 5 i

CASE NO. 5: 13-cr-26-0c-22PRL v.

THOMAS W. HARTER

Harter's JURISDICTIONAL CHALLENGE; REJECTION TO ALLEGED CONVICTION; OFFICIAL MISCONDUCT CHARGE; and

DEMAND IN THE NAME OF JUSTICE

I, Thomas William Harter, asserting my inalienable rights as a sovereign on this great

land known as the United States of America 1 , having discharged Mark Schleben as my

[NOTE: emphasis in quotes added by Harter]

"For when the revolution took place, the people of each state became themselves sovereign; .... subject only to the rights since surrendered by the constitution to the general government." Martin v. Waddell, 41 US 367, 410 (1842)

"Congress can exercise no power by virtue of any supposed inherent sovereignty in the general government. Indeed, it may be doubted whether the power can be correctly said to appertain to sovereignty in any proper sense, as an attribute of an independent political community. The power to commit violence, perpetrate injustice, take private property by force without compensation to the owner, and compel the receipt of promises to pay in place of money, may be exercised, as it often has been, by irresponsible authority, but it cannot be considered as belonging to a government founded upon law. But be that as it may, there is no such thing as a power of inherent sovereignty in the government of the United States. It is a government of delegated powers, supreme within its prescribed sphere, but powerless outside of it. In this country, sovereignty resides in the people, and congress can exercise no power which they have not, by their constitution, intrusted to it; all else is withheld." Juil/ard v. Greenman 'The Legal Tender Cases', 110 U.S. 421, 467 (1884)

"Under our system the people, who are there called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, [ 106 U.S. I 96, 209] there is no reason why deference to any person, natural or artificial, not even the United States,

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OFFICIAL MISCONDUCT CHARGE; and DEMAND IN THE NAME OF JUSTICE


attorney, appear now in propria persona (in my own person) and sui juris (of right) to challenge

jurisdiction 2 (administrative and judicial) and reject the contention that proceedings and alleged

guilty verdict in this Court's Case No. 5:13-cr-26-0c-22PRL (hereinafter this case) have any

foundation in law; and to charge United States (U.S.) Attorney Robert E. O'Neill, Assistant U.S,

Attorney Samuel D. Armstrong, and Criminal Division Deputy Chief Karen L. Gable with

misconduct in office3 ; and to make demands in the name of justice, fair play, and honesty in

government.

1. I, Thomas William Harter, declare under penalties of perjury the personal facts stated

herein are true and correct, and the facts as to law are materially complete, not intended to

mislead anyone, and are true and correct to the best of my knowledge and belief.

2. This is presented in affidavit form for it to stand admissible without any extrinsic

should prevent him from using the means which the law gives him for the protection and enforcement of that right." US v. LEE, 106 U.S. 196. 20 I, 209-210 ( 1882)

"In the United States, sovereignty resides in the people who act through the organs established by the Constitution. Chisholm v. Georgia, 2 Dall. 419, 471; Penhallow v. Doane's Administrators, 3 Dall. 54, 93; McCulloch v. Maryland, 4 Wheat. 316, 404, 405; Yick Wo v. Hopkins, 118 U.S. 356. 370, 6 S.Ct. 1064. The Congress as the instrumentality of sovereignty is endowed with certain powers to be exerted on behalf of the people in the manner and with the effect the Constitution ordains. The Congress cannot invoke the sovereign power of the people to override their will as thus declared. Perry v. United States, 294, U.S. 330, 353 (1935)

2 "Where jurisdiction is challenged, it must be proven. The law required proof of jurisdiction to appear on the proceedings ... Jurisdiction may never be assumed, it must be proven. Hagen v. Lavine, 415 U.S. 528, 533, 39 L.ed 577, 94 S.Ct., (N.Y. March 28, 1974). "Jurisdiction once challenged cannot be assumed and must be decided." State of Maine v. Thiboutot, 448 U.S. I, 100 S.Ct. 2502 (1980). "No sanction can be imposed absent proof of jurisdiction." Standard v. Olsen, 74 S.Ct. 768

3 Misconduct in office. Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. See also Malfeasance; Misfeasance Black's Law Dictionary, Fifth Edition (1979)

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Case 5:13-cr-00026-PRL Document 89 Filed 10/10/13 of 65 PageID 963\

evidence of authenticity 4 and under the established Common Law maxim that an affidavit is a

presentment which if unrebutted becomes truth in commerce and fact in law.

3. Being a man who has never had any formal schooling in law, I notice this Court of

enunciation of principles as stated in Haines v. Kerner:i. 404 U.S. 519 (1972), wherein that court

directed that those who are unschooled in law making pleadings and/or complaints shall have the

court look to the substance of the writings rather than the form. Based thereon, this Court is

asked to interpret this writing fairly and in light of strict constitutional standards, no matter how

"inartful," and not hold me to the same standard as a practicing attorney. This was restated by

the Supreme Court ten years later in its Boag v. MacDougall, 454 U.S. 364 (1982) ruling. Both

of these rulings have been relied upon in lower court opinions.

STATEMENT AND FACTS OF THE CASE

4. This case was opened based upon the unattested INFORMATION writing over the

signatures of Samuel D. Armstrong and Karen L. Gable, acting on behalf of Robert E. O'Neill

(hereinafter referred to jointly as the U.S. Attorneys). In it they charge defendant THOMAS W.

HARTER with "violation of Title 26, United States Code, Section 7203" (hereinafter IRC or 26

U.S.C) as to years 2006, 2007, 2008, 2009 2010, 2011 (six (6) counts). Having no knowledge

of courtroom process and procedures, I hired an attorney. After the filing of much paperwork

and a few hearings, a proceeding called trial, conducted by Magistrate Judge Philip R. Lammens,

ended on 09/1712013 with a group of people sitting in the jury box declaring me guilty on all

4 Rule 902. Self-authentication Federal Rules of Evidence Extrinsic evidence of authenticity as to condition precedent to admissibility is not required with

respect to the following: (8) Acknowledged documents.-Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

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counts (all of whom are believed to be 1040 form filers and pay what they presume is a lawful

tax on their income; rendering it impossible for them to be impartial).

5. The U.S. Attorneys failed to support their Information charge with a probably cause

statement under oath as required by Rule 9, Federal Rules of Criminal Procedure. The

presentment of a probable cause statement under oath authorizes the Clerk of the Court to issue a

Warrant or Summons for the accused to appear. I have never seen a Summons or probable cause

statement under oath, and have reason to believe none exists since such documents do not appear

on the Court Docket list for this case. This would seem to be a fatal administrative flaw, but

neither this nor any other administrative fault is the premise for my rejecting the validity of this

case and the alleged conviction. What is being presented in this affidavit is authoritative

evidence as to the Constitution, IRC statutes, regulations, and court rulings that prove this case to

be a mistrial ab initio. 5

STATEMENT OF ISSUES & STANDARD OF REVIEW

6. Notwithstanding this case was opened based upon violation of a statute and appears to

have been conducted by an administrative tribunal thus far, the true issue is exertion of

unauthorized administrative power resulting in infringement of my inalienable rights; a matter

cognizable only in an Article III Court.

"When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permit the [321 U.S. 288, 31 O] courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action

5 Mistrial. An erroneous, invalid, or nugatory trial. A trial of an action which cannot stand in law because of want of jurisdiction, or a wrong drawing of jurors, or disregard of some other fundamental requisite before or during trial. Trial which has been terminated prior to its normal conclusion. The judge may declare a mistrial because of some extraordinary event (e.g. death of juror, or attorney), for prejudicial error that cannot be corrected at trial, or because of a deadlocked jury. Black's Law Dictionary, Fifth Edition ( 1979)

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fairly beyond the granted powers. The responsibility of determining the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction. Cf. United States v. Morgan, 307 U.S. 183. 190 , 191 S., 59 S.Ct. 795, 799. This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents. The powers of departments, boards and administrative agencies are subject to expansion, contraction or abolition at the will of the legislative and executive branches of the government. These branches have the resources and personnel to examine into the working of the various establishments to determine the necessary changes of function or management. But under Article m. Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power." Stark v .. Wickard, 321 U.S. 288, 309-310 (1944)

7. The U.S. Supreme Court has ruled: "There are no constructive offenses; and before

one can be punished, it must be shown that his case is plainly within the statute." Fasulo v.

United States, 272 U.S. 620, 629 (1926); brought forward by being quoted in McNally v. United

States., 483 U.S. 350, 360 (1987). There is no ambiguity in this ruling (command). It clearly

states my being duly convicted stands or falls upon me and my estate (real or personal) being

within IRC statutes. Congress identifies precisely who can be duly punished under IRC chapter

75 statutes(§§ 7201-7344) by the definition of"person" for chapter 75.

26 U.S.C. § 7343. Definition of term "person." The term "person" as used in this chapter includes an officer or employee of a corporation, or a

member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.

This establishes IRC chapter 75 statutes merely prescribe sanctions for violation of a duty to

perform some act stated elsewhere in IRC statutes, and makes clear a charge for violation of IRC

chapter 75 statutes cannot stand as complete without charging the accused as being the IRC §

7343 person and stating the IRC statute(s) that imposes a duty upon the accused "to perform the

act in respect of which the violation occurs."

8. I was allegedly charged and convicted for violation of26 U.S.C. § 7203.

26 U.S.C. § 7203. [in part] Willful failure to file return, supply information, or pay tax.

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Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to ... at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined ... or imprisoned ... or both ...

Again, this states the duty (requirement) is under some other IRC statute(s). None are stated in

the Information used to initiate this case against me; rendering the entire case and alleged

conviction to be based upon presumptions and personal opinions of officers of this Court and the

twelve people sitting in the jury box; and not due process of law.6

9. I, Thomas William Harter, declare and present proof at law, that IRC statutes are based

upon special legislation (applicable to particular persons and things) that cannot be lawfully

applied upon me or any contract whereby I derive income from labor or otherwise. Support for

this is memorialized in my MEMORANDUM OF LAW (16 page affidavit) executed on

0911012004 (copy attached as Exhibit A) and filed into Marion County, Florida, public records

on 07/28/2005 as #2005132677, at Book 04119, pages 1281-1297. Since it was executed it has

been presented many times to officials of the Department of the Treasury (DOT) and its

enforcement arm, the Internal Revenue Service (IRS); sometimes directly and sometimes

through their agents/employees. I never received a rebuttal thereto, not even when made a part

of my AFFIDAVIT OF FACTS & MERITS (15 page affidavit; copy attached as Exhibit B)

mailed on 05/18/2006 to Mark W. Everson (the then IRS Commissioner), his agents in Ocala,

6 Due process of law. [in part] Law in its regular course of administration through courts of justice. Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribed for the class of cases to which the one in question belongs. A course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. Black's Law Dictionary, Fifth Edition ( 1979)

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OFFICIAL MISCONDUCT CHARGE: and DEMAND IN THE NAME OF JUSTICE


FL, and Ogden, UT, and sent to Senators Bill Nelson and Mel Martinez, and Representative Cliff

Stearns.

10. Exhibits A and Bare made an integral part of this affidavit as if fully restated. Under

established principles I doctrines, the silence of DOT/IRS officials thereto stands as a tacit

acknowledgement to the veracity of what is stated therein 7 and an admission to the following

(reprinted from the summation in Exhibit B, paragraph 15, omitting references therein to other

parts of that affidavit).

(a) that Congress did not impose a tax upon income; (b) that the IRC subtitle A statutes are part of a bailment for mutual benefit program between the

U.S. Government and human beings employed within an agency or instrumentality of the U.S. Government-Le, the IRC § 770l(a)(30)(A) United States person;

(c) that this bailment program creates an obligation for such United States person to make a return of the U.S. Government's property transferred into their possession that they are not under IRC subtitle A and F law permitted to retain;

( d) that IRC subtitle F statutes provide authority to the IRS for recaption of property possessed by the U.S. Government though in the possession of such United States persons;

(e) that the "total amount due" to be returned becomes a statutory lien in favor of the U.S. Government;

(f) that a Notice of Federal Tax Lien filed into county public records is a notice of the U.S. Government security interest it has in its own property in the possession of a particular employee of the U.S. Government;

(g) that when a proper sum is not returned by such United States person via the Form 1040 prescribed therefore then the IRS Commissioner has authority to issue a levy upon their accrued salary or wages by way of notice to the employer (defined in IRC § 340l(d)) of such officer, employee, or elected official of an agency or instrumentality of the U.S. Government (IRC § 63 31 (a));

(h) that income from sources not effectively connected with a trade or business within an agency or instrumentality of the U.S. Government is foreign to the U.S. Government and NOT includible in gross income under IRC subtitle A, which means IRC subtitle F statutes are inapplicable and any permitted acts by agents of the IRS Commissioner that result in a taking of such personal property violates many statutory and common laws; and

(i) that applying IRC subtitle Flaws on one's income foreign to the U.S. Government constitutes a "scheme or artifice to deprive another of the intangible right of honest services and falls within frauds and swindles in 18 U .S.C. § 1341.

7 "Silence is a species of conduct, and constitutes an implied representation of the existence of the state of

facts in question, and the estoppel is accordingly a species of estoppel by misrepresentation ..... Even when the statute of frauds has been relied on, the equitable doctrine of estoppel has been enforced to prevent fraud. Goldman v. Brinton, 90 Md. 259, 44. Atl. 1029." Carmine v. Bowen, 104 Md. 198, 64 Ad.Rep. 932, 934 (1906).




11. Being strictly a matter of law, the standard of review is restricted to whether or not I and

my estate (real or personal) fall within IRC statutory authority; wherefore, I declare

administrative process, procedures, and court rules are irrelevant and immaterial; and reject any

use of them as a diversion from the substantive and only issue-i.e., conclusively disproving the

authoritative evidence presented by me that establishes IRC statutes have no lawful force or

effect upon me or my estate.

12. The U.S. Supreme Court has ruled (commanded):"the responsibility of determining the

limits of statutory authority is a judicial function (see, Stark v. Wickland, 321 U.S. 288, 309

(1944)) and the job of the judge is to apply the law, not to bolster the government's case

(see, Beaty v. U.S., 937 F.2d 288, 293 (Sixth Cir. 1991)). Wherefore the onus is placed upon this

district court of the U.S. Government, sitting as a Court oflaw and justice and not as an

administrative tribunal (as it appears to have been thus far), through Magistrate Judge Philip R.

Lammens, to disprove the authoritative evidence in this affidavit and Exhibits A and B, and

bring forth the enactment by the U.S. Congress that compels a human being to pay a tax on their

income via an IRS Form 1040 and upon evidence of willful failure to do so the criminal

sanctions in 26 U.S.C. § 7203 can lawfully be enforced by this Court. I believe, and declare,

justice, fair play, and honesty in government requires the Court to perform the foregoing, OR sua

sponte declare this case a mistrial, and render the verdict void. A showing of good faith in this

matter will be on record if one or the other of these options is on record no later than thirty (30)

days before the sentencing date, currently scheduled for 12110/2013.

DOT/IRS JURISDICTION (AUTHORITY)

13. Like the U.S. Attorneys, the Secretary of the Treasury and the IRS Commissioner are

under a duty to know the /awfu./ limits to the enforcement of IRC statutes and adhere strictly




thereto. They have a correlative duty to properly train their agents/employees to assure strict

adherence to the law. Wherefore, the sending of IRS writings to human beings not subject to

IRC statutes evidences deliberate, arbitrary, operation outside the scope of their office and an

intentional abuse of IRS power, process, and procedures by failing to instruct their

agents/employees that IRC statutes are based upon special law (enactments applicable to

particular persons and things) and identify specifically upon whom and what IRC statutes can

lawfully be applied. In so doing they not only breach their fiduciary to the public 8 but to their

agents/employees.

14. Courts have made it clear that: "With the IRS's broad power must come a

concomitant responsibility to exercise it within the confines of the law." Bothke v. Fluor

Engineers and Constructors, Inc., 713 F.2d 1405 (1983), 9th Cir.; relying upon Butz et al v.

Eonomou et al., 438 U.S. 4 78 at 505-506. These Courts emphasized that no official is above the

law, and that broad powers present broad opportunities for abuse." DOT/IRS officials operate

outside the confines of their office when they permit entries be placed into the DOT/IRS system

of records that have no nexus to IRC statutes, thus such entries constitute false writings (see 18

U.S.C. § 1001) and evidence an abuse of DOT/IRS authority.

15. By promulgation of regulation 26 CFR 601.106(t)(l)~ the DOT Secretary recognizes:

'~An exaction by the U.S. Government, which is not based upon law, statutory or otherwise~ is a

taking of property without due process of law, in violation of the Fifth Amendment.~·

8 "A public official is a fiduciary toward the public" and that fraud "includes the deliberate concealment of material information in a setting of fiduciaD' obligation.~' In addressing schemes to defraud and intangible rights, the McNallv Court stated at page 358: "This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly. See, e.g., United States v. Clapps. 732 F.2d 1148, 1152 (CA3 1984); United States v. States, 488 F.2d 761, 764 (CA8 1973)." McNallv v. United States, 483, .S. 350, 372 (1987)

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Substantive due process is the right to be protected from arbitrary and wrongful government

action regardless of the fairness of the procedures government uses to undertake the arbitrary

action. Zinermon v. Burch, 494 U.S. 113 (1990)

LIMITS TO LAWFUL ENFORCEMENT OF IRC STATUTES

16. The authoritative proofs herein and in Exhibits A and B establish IRC statutes have no

lawful application upon me or my estate (real or personal); all of which is derived through

exercise of my right to contract and work in my chosen lawful trade I vocation and thereby

acquire property; a right I liberty long established as inalienable and secured under the

Constitution of the United States of America. 9

9 "The right to follow any of the common occupations of life is an inalienable right. It was fonnulated as such under the phrase 'pursuit of happiness' in the Declaration of Independence." Allgeyer v. State of Louisiana, 165 U.S. 578. 17 S.Ct. 427, 41L.Ed.832 (1897). Hotel, et al. v. Longley, eta/ .. 160 S.W.2d 124, 127 (1942).

"Included in the right of personal liberty and the right of private property -- partaking of the nature of each -- is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property." Coppage v. Kansas, 236 U.S. I, 14 (1915).

"The property which every man has in his own labor, as it is the original foundation for all other property. so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper. without injury to his neighbor, is a plain violation of this most sacred property." Butchers Union Co. v. Crescent City Co., 111 U.S. 764.

"We also think the right to work is one of the most precious liberties that man possesses. Man has as much right to work as he has to live, to be free, to own property, or to join a church of his own choice for without freedom to work the others would soon disappear. It is a fundamental human right which the due process clause of the Fifth Amendment protects from improper infringement by the federal government. To work for a living in the occupations available in a community is the very essence of personal freedom and opportunity that it was one of the purposes of these amendments to make secure. Liberty means more than freedom from servitude. The constitutional guarantees are our assurance that the citizen will be protected in the right to use his powers of mind and body in any lawful calling." Referenced from Smith v. State o/Texas, 233 U.S. 630 (1913) in Hanson v. U.P.RR. Co.~ 71 N.W. 526, 546 (1955).

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17. IRC subtitle A statutes have been misrepresented and propagandized as imposing a

federal tax on what one derives from their labor and other income. Because of this human beings

living on the land called the United States of America are predisposed to execute and submit

1040 forms to the IRS along with their property 10 though "The Right to receive income or

earnings is a right belonging to every person and realization and receipts of income is therefore

not a ''privilege that can be taxed." (Taxation Key, West 933); thus they perform such act based

upon false belief and custom 11, not law. Ignorance to the truth with regard to this matter is

perpetuated with the aid of Department of Justice (DOJ) attorneys instituting court actions

against people and property not subject to IRC statutes, like me and my property. Judges tend to

permit the government to prevail in such actions notwithstanding the job of a judge is to apply

the law, not to bolster the government's cause. 12 In so doing, it seems to me that

"Constitutional rights would be of little value if they could be ... indirectly denied" Smith v. Al/wright, 321

U.S. 649, 664. " ... or 'manipulated out of existence' "Gomillion v. Lightfoot, 364 U.S. 339. 345.

"It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escaping from constitutional restrictions. And the State may not in this way interfere with matters withdrawn from its authority by the Federal Constitution or subject an accused to conviction for conduct which it is powerless to proscribe." Bailey v. Alabama, 219 U.S. 219, 239 (1910)

10 "Because what appears to be a lawful command on the surface, many citizens, because of their respect for the law, are cunningly coerced into waiving their rights, due to ignorance." U.S. v._Minker, 350 U.S. 179. 187(1956)

11 Consuetudo licet sit magnre auctoritatis, nunquam tamen, prrejudicat manifestre veritati. A custom, though it be of great authority, should never prejudice manifest truth. Black's Law Dictionary, Fifth Edition ( 1979) Pg. 286

Consuetudo contra rationem introducta potius usurpatio quam consuetudo appellari debet A custom introduced against reason ought rather to be called a "usurpation" than a "custom." Black's Law Dictionary, Fifth Edition ( 1979) Pg. 285

12 '"A central tenet of our republic-a characteristic that separates us from totalitarian regimes throughout the world-is that the government and private citizens resolve disputes on an equal playing field in the

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Government officials who take office swearing to uphold the Constitution of the United States of

America violate their oath of office and their duty to protect and defend the right of the people to

life~ liberty and property against invasion by enemies, foreign and domestic.

18. It is well established that a tax upon one's estate, whether derived from labor or other

contract, is direct taxation. 13 Constitutional requirement for the imposition of direct taxation is

that it be apportioned. There is no provision for apportionment in the IRC - which can only

mean none of the statutes in the IRC impose a direct tax on anyone or anything. Also, with

Congress having declared ''The labor of a human being is not a commodity or article of

commerce" (15 U.S.C. § 17), what is termed "federal income tax"' cannot represent indirect

taxation upon articles of commerce. Thus the Federal income tax" return program in IRC

subtitle A statutes must be something other than taxation, and so proved by the authoritative

evidence presented in this affidavit and Exhibits A and B.

19. The U.S. Supreme Court conditionally recognized the "federal income tax" return

program as an excise unless and until its enforcement converts it to direct taxation 14 • in which

courts. When citizens face the government in the federal courts, the job of the judge is to apply the law, not to bolster the government's case." Beaty v U.S., 937 F.2d 288, 293 (Sixth Cir. 1991)

l:l Customs & duties -title 19 U.S.C.; regulation - 19 CFR 351.102. Definitions: Direct Tax. "Direct tax" means a tax on wages, profits, interests, rents, royalties, and all other forms of income, a tax on the ownership of real property. or a social welfare charge.

"Ordinarily, an taxes paid primarily by persons who can shift the burden upon someone else, or who are under no legal compulsion to pay them, are considered indirect taxes; but a tax upon property holders in respect of their estates, whether real or personal, or of the income yielded by such estates, and the payment of which cannot be avoided, are direct taxes." Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 558 (1895)

"Direct taxes bear immediately upon person, upon possession and the enjoyment of rights." Knowlton v. Moore, 178 U.S. 41, 47 (1900)

14 "Moreover, in addition, the conclusion reached in the Pollock Case did not in any degree involve holding that income taxes generically and necessarily came within the class of direct taxes on property~

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instance the Court is required to disregard form (administrative process and procedures., and

court rules) and consider substance alone (substantive issues; e.g., unauthorized taking of

property through wrongful IRC administration 15).

20. The U.S. Supreme Court has ruled: "we think it important to note that the Act's civil and

criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the

Secretary were to do nothing, the Act itself would impose no penalties on anyone" California

Bankers Assn. v. Schultz, 416 U.S. 21, 26 (1974). Congress commanded regulations having

general applicability be published in the Federal Register (see 44 U.S.C. § 1501 et. seq.) and a

list of such regulations be published (44 U.S.C. § 1510). Such list is published in the Table of

Authorities of the Code of Federal Regulations (CFR) Index and Finding Aids; the preface to

which shows exclusion of regulations published pursuant to 5 U.S.C. § 301 16 to conform with

the exception of "those not having general applicability and legal effect or effective only against

Federal agencies or persons in their capacity as officers, agents, or employees thereof' ( 44

U.S.C. § 1505(a)).

but. on the contrary, recognized the fact that taxation on income was in its nature an excise entitled to be enforced as such unless and until it was concluded that to enforce it would amount to accomplishing the result which the requirement as to apportionment of direct taxation was adopted to prevent, in which case the duty would arise to disregard fonn and consider substance alone. and hence subject the tax to the regulation as to apportionment which otherwise as an excise would not apply to it."

Brushaberv. Union Pacific Railroad Co., 240 U.S. I, 16-17 (1915)

15 "A valid law may be wrongfully administered by officers of the state. and so as to make such administration an illegal burden and exaction upon the individual. A tax law, as it leaves the legislative hands, may not be obnoxious to any challenge; and yet the officers charged with the administration of that valid tax law may so act under it, in the matter of assessment or f 154 U.S. 362, 391 ) collection, as to work an illegal trespass upon the property rights of the individual. They may go beyond the powers thereby conferred, and when they do so the fact that they are assuming to act under a valid law will not oust the courts of jurisdiction to restrain their excessive and illegal acts.'' Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 391-392 (1894).

16 Title 5 United States Code, Government Organization and Employees, and Appendix.

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Case 5:13-cr-00026-PRL Document 89 Filed 10/10/13 of 65 PageID 974,.

21, The limited enforcement authority provided to the DOT/IRS by IRC subtitle F statutes is

made clear by the CFR Index and Finding Aids Table of Authorities list which shows regulations

published pursuant to 44 U.S.C. § 1501 et seq. for "authority of internal revenue enforcement

officers" (IRC § 7608) to "canvass of district for taxable persons" (IRC § 7601) and conduct

"examination of books and witnesses" (IRC § 7602) by issuing and enforcing administrative

summons (IRC §§ 7603, 7604, 7605) and then have "returns prepared by the Secretary" (IRC §

6020) and make an assessment (IRC §§ 6201, 6203) and then use "collection authority" (IRC §

6301) by giving "notice and demand for tax" (IRC § 6303) and make "liens for taxes" (IRC §

6321) and then collect through "levy and distraint" (IRC §§ 6331-6343) the tax along with

interest and penalties added (IRC §§ 6601. 6602, 6651, 6671, 6672, 6701) and institute actions

in district courts of the U.S. Government per "judicial proceedings authorization" (IRC § 7401)

and "judicial action to enforce lien" (IRC § 7403), or for certain criminal sanctions [i.e ..

"fraudulent returns (IRC § 7207) and "interference with administration of internal revenue laws"

(IRC § 7212)] are ALL IN Title 27 CFR, which is only for taxable alcohol, tobacco, and

firearm (ATF) activities. Those with no regulations published pursuant to 44 U.S.C. § 1501 et

seq. are the Notice of deficiency (IRC § 6212) and Tax Court/unctions (e.g., IRC §§ 6213.

6214, 6215, 6673, 6902, and 7454), False Information with Respect to Withholding (IRC §

6682), Frivolous income tax return (IRC § 6702), Attempt to Evade or Defeat Tax (IRC §

7201), Willful Failure to File Return, Supply Information or Pay Tax (IRC § 7203) .. and

Court's Jurisdiction to Enforce Summons (IRC § 7402); which means these are applicable

only to gross income derived from U.S. Government agencies or instrumentalities by the U.S.

i11dividual (the 26 U.S.C. § 770l(a)(30)(A) U.S. person) and t/1e replevin of the part oftlie

"Federal income tax" (U.S. public/government property) in tlieir possession that is required to

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be retumed to the U.S. Treasury. Interestingly, ATF statutes in IRC subtitle E make reference

to the criminal sanctions in IRC chapter 75 being applicable .. whereas no such reference is made

in IRC subtitle A statutes.

22. In brief, IRC statutes are based upon special legislation applicable to particular persons

and things. The authoritative evidence in this affidavit and Exhibits A and B proves the

·"particular persons"' are those associated with IRC subtitle D and E commodities constitutionally

taxable by the U.S. Government, OR those to whom "Federal income tax·' 17 has been transferred

(bailed) as an item of "gross income" with sums paid out of the U.S. Treasury to anyone under

employment contract with U.S. Government agencies or instrumentalities, or an elected or

appointed U.S. Government official. As to the latter, said "gross income" is subject to return to

the U.S. Treasury reduced by deductions and exemptions allowed and reported on particular

DOT/IRS forms by such particular persons (real or artificial); Form 1040 being the instrument

prescribed by regulation for individuals required to make the return required. 18 IRC statutes and

regulations establish the '"particular thing" is property to which the U.S. Government is entitled

either as a tax imposed upon IRC subtitle D and E commodities .. or as a proper return required of

the public's property.

23. The limitations to what is and what is not includible in gross income under IRC subtitle A

to persons in an employment contract within the U.S. Government is confirmed by IRC chapter

24, Collection of income tax at source, IRC § 3401 et. seq. In IRC § 3401(a) Congress defined

17 Logic dictates the term "Federal income tax" is a compound noun for the public's property in the custody and

care of the U.S. Government to be used for legitimate government purposes.

18 26 CFR § 1.6012-1. Individuals required to make returns of income.

(a) Individual citizen or resident --(6) Form of return. Form 1040 is prescribed for general use in making the return required under this paragraph.

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OFFICIAL MISCONDUCT CHARGE: and DEMAND IN Tl IE NAME OF JUSTICE


. . ~~wages'~ to mean remuneration other than "fees" and specifically excluded remuneration paid for

services for an employer other than the U.S. Government or any of its agencies. 19 Looking to

Black~s Law Dictionary~ Fifth Edition, the word ''fee" is defined as '"A charge fixed by law for

services of public officers or for use of a privilege under control of government."

24. By the fact that I have never been involved in any IRC subtitle D or E taxable activity~

nor employed by any U.S. ~overnment agency or instrumentality (other than being in the Navy

Reserves; 1990-1994), all IRC statutes have no lawful force or effect upon me and my estate

(real and personal); which is foreign to the U.S. Government as defined in 26 U.S.C.

770l(a)(3 l ).20

Authoritative evidence regarding tax "on" income

25. An understanding of the U.S. Government's "~federal income tax" return program and the

U.S. Supreme Court's definition regarding direct and indirect taxation in its Pollock ruling (see

footnotes 13) and the ruling in Brushaber that "taxation on income was in its nature an excise

entitled to be enforced as such unless and until it was concluded that to enforce it would amount

to accomplishing the result which the requirement as to apportionment of direct taxation was

19 26 U.S.C. § 3401. Definitions. [in part] (a) Wages. For purposes of this chapter, the tenn "wages" means all remuneration (other than fees

paid to a public official) for services perfonned by an employee for his employer, including the cash value of all remunerations paid in any medium other than cash; except that such term shall not include remuneration paid-

(8) (A) for services for an employer (other than the United States or any agency thereoO--

20 26 U.S.C. § 770l(a)(31) Foreign estate or trust. [2000 Edition] (A) Foreign estate

The term "foreign estate" means an estate the income of which, from sources without the United States which is not effectively connected with the conduct of a trade or business within the United States, is not includible in gross income under subtitle A. (B) Foreign trust

The term "foreign trust" means any trust other than a trust described in subparagraph (E) of paragraph (30).

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adopted to prevent" (see footnote 14) help in understanding the ruling in Kno-wlton v. Moore, 178

US 41, 47 (1900), that: "Direct Taxes bear upon persons, upon possession and the enjoyment of

rights; Indirect Taxes are levied upon the happening of an event." With it recognized and

established that a tax "on" all forms of income (i.e., wages, profits, interests, rents, royalties, and all

other forms of income. a tax on the ownership of real property, or a social welfare charge - see footnote

13) is direct taxation, one must look to what ""happening"' (event) keeps IRC statutes in the classification

of indirect taxation. The event as to IRC subtitle A statutes is the transfer (bailment) of particular

property subject to return to the U.S. Treasury; the event as to IRC subtitle D and E is

involvement with commodities lawfully taxable by the U.S. Government.

26. The above is confirmed by IRC subtitle A statutes only placing a tax upon '"taxable

income" (e.g." see IRC §§ 1and11). Taxable income is defined as '"gain derived from capital,

labor, or both." Eisner v. Macomber, 252 U.S. 189 (1920). However. tax ""on'' capital or labor is

direct taxation and, as so aptly put by the Oregon Supreme Court in Redfield v. Fisher. 292 P

813, pg 819 (1930):

"The individual, unlike the corporation, cannot be taxed for the mere privilege of existing. The corporation is an artificial entity which owes its existence and charter powers to the state: but the individuals' right to live and own property are natural rights for the enjoyment of which an excise cannot be imposed."

With regard to taxing corporations. the U .S, Supreme Court ruled:

"It is therefore well settled by the decisions of this court that when the sovereign authority has exercised the right to tax a legitimate subject of taxation as an exercise of a franchise or privilege, it is no objection that the measure of taxation is found in the income produced in part from property which of itself considered is nontaxable. Applying that doctrine to this case, the measure of taxation being the income of the corporation from all sources, as that is but the measure of a privilege tax within the lawful authority of Congress to impose, it is no valid objection that this measure includes, in part~ at least, property which. as such. could not be directly taxed."

Flint v. Stone Tracy Co., 220 U.S. I 07, 165 (1911)

"As has been repeatedly remarked, the corporation tax act of 1909 was not intended to be and is not, in any proper sense, an income tax law. This court had decided in the Pollock Case that the income tax law of 1894 amounted in effect to a direct tax upon property, and was invalid

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because not apportioned according to populations, as prescribed by the Constitution. The act of 1909 avoided this difficulty by imposing not an income tax, but an excise tax upon the conduct of business in a corporate capacity, measuring, however, the amount of tax by the income of the corporation, with certain qualification prescribed by the act itself'

Stratton's Independence, LTD. V. Howbert, 231U.S.399, 414-415 (1913)

"'it is obvious that these decisions in principle rule the case at bar if the word 'income' has the same meaning in the Income Tax Act of 1913 that it has in the Corporation Excise Tax Act of 1909, and that it has the same scope of meaning was in effect decided in Southern Pacific v. Lowe ... , where it was assumed for the purpose of decision that there was no difference in its meaning as used in the act of 1909 and in the Income Tax Act of 1913. There can be no doubt that the word must be given the same meaning and content in the Income Tax Acts of 1916 and 1917 that it had in the act of 1913. When we add to this, Eisner v. Macomber ... the definition of "income· which was applied was adopted from Strattons' Independence v. Howbert. supra. arising under the Corporation Excise Tax Act of 1909 ... there would seem to be no room to doubt that the word must be given the same meaning in all the Income Tax Acts of Congress that was given to it in the Corporation Excise Tax Act, and that what that meaning is has now become definitely settled by decisions of this Court."

Merchant's Loan & Trust Co. v. Smietanka, 255 U.S. 509, 519 (1921)

THIS COURT'S DUTY AND OBLIGATIONS ARE MADE CLEAR

27. Without question, this case is a nullity ab initio where subject matter and in personam

jurisdiction is lacking. Keep in mind, I do not contend district courts of the United States do not

have jurisdiction over matters presented with regard to IRC statutes~ but do contend., and have

proved by authoritative evidence, that IRC statutes are based upon special legislation that has no

lawful force or effect upon me or my estate (real or personal). It is self-evident that a claim as to

the court having general subject matter jurisdiction over 26 U.S.C. statutory violations is

irrelevant. immaterial, and frivolous where I and my property are not subject thereto. Ergo., the

Fasulo v. United States, and McNa/ly v U.S., supra. ruling: "There are no constructive

offenses; and before one can be punished, it must be shown that his case is plainly within

the statute."

28. The lack of jurisdiction over me as to the subject matter must be recognized as negating

both in personam and subject matter jurisdiction in this case; without which the alleged

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conviction and any court ordered imprisonment cannot stand as valid 21 and would evidence use

of a non-existent discretion designed to bolster the government's case and avoid matters of

constitutional violations including, but not limited to, the Thirteenth Amendment.

29. Further, with IRC statutes being lawfully inapplicable to me and my estate (real and

personal). IRC statutes provide no remedy to me or the United States of America (whoever that

may be 22). With violation of my inalienable rights secured by the Constitution of the United

States of America being at issue, remedy is reserved to Article III Courts . Wherefore, this Court

must sit as an Article III Court in this matter, and not as an administration tribunal serving the

DOJ. the DOT, and the IRS in this wrongful administration of IRC statutes (as seems to have

occurred thus far). As put by the U.S. Supreme Court in its Northern Pipeline Const. Co. v.

Marathon Pipe Line Co.~ 458 U.S. 50, 83-84 (1983) ruling:

"Although Crowell and Raddatz do not explicitly distinguish between rights created by Congress and other rights, such a distinction underlies in part Crowell's and Raddatz' recognition of a critical difference between rights created by federal statute and rights recognized by the Constitution. Moreover, such a distinction seems to us to be necessary in light of the delicate

21 "The validity of an order of a federal court depends upon that court's having jurisdiction over both the subject matter and the parties. Stoll v. Gottlieb, 305 U.S. 165, 171-172 (1938); Thompson v. Whitman, 18 Wall. 457, 465 ( 1984). The concepts of subject-matter and personal jurisdiction. however. serve different purposes, and these different purposes affect the legal character of the two requirements.'" Insurance Corp. V. Compagnie Des Bauxites, 456 U.S. 694, 701 (1982)

22 United States of America. A federal republic formed after the War oflndependence and made up of 48 conterminous states .. plus the state of Alaska and the District of Columbia in North America, plus the state of Hawaii in the Pacific. Black's Law Dictionary, Seventh Edition ( 1999) [not in 6'h or prior Black's editions]

Republic. A commonwealth, that form of government in which the administration of affairs is open to all the citizens. In another sense, it signifies the state, independently of its form of government. Black's Law Dictionary, Fifth Edition ( 1959) [Comment: from these definitions. it would appear the United States of America could be all the people on this great land, or it could be the 50 States united in America, or maybe just the "citizens" (people) who make up the U.S. Government. Either way, it seems to me the United States of America is a fictitious plaintiff.]

Fictitious plaintiff. A person appearing in the writ, complaint, or record as the plaintiff in a suit. but who in reality does not exist, or who is ignorant of the suit and of the use of his name in it. It is a contempt of court to sue in the name of a fictitious party. Black's Law Dictionary. Fourth Edition ( J 968)

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accommodations required by the principle of separation of powers reflected in Art. Ill. The constitutional system of checks and balances is designed to guard against "encroachment or aggrandizement" by Congress at the expense of the other branches of government. Buckley v. Valeo, 424 U.S .. al 122 . But when Congress creates a statutory right, it clearly has the discretion, in defining that right, to create presumptions, or assign burdens of proof, or orescribe remedies; it may also provide that persons seeking to vindicate that right must do so before particularized tribunals created to perform the specialized adjudicative tasks related to that right. 35 Such provisions do, in a sense, affect the exercise of judicial power, but they are also incidental to Congress' power to define the right that it has created. No f .:t.58 l r.s. 50. 84] comparable justification exists, ~owever, when the right being adjudicated is not of congressional creation. In such a situation, substantial inroads into functions that have traditionally been performed by the Judiciary cannot be characterized merely as incidental extensions of Congress' power to define rights that it has created. Rather, such inroads suggest unwarranted encroachments upon the judicial power of the United States, which our Constitution reserves for Art. Ill courts."

30. The U.S. Supreme stated: "'No higher duty rests upon this court than to exert its full

authority to prevent all violation of the principles of the Constitution." Downes v. Bidwell,

182 U.S. 244, 383 (1901). The same duty falls upon all of the U.S. Government's lower courts;

who also have: "the responsibility of determining the limits of statutory grants of authority

in such instances is a judicial function entrusted to the courts by Congress by the statutes

establishing [Article I, administrative] courts and marking their jurisdiction •.•. But under

Article III, Congress established courts to adjudicate cases and controversies as to claims of

infringement of individual rights whether by unlawful action of private persons or by the

exertion of unauthorized administrative power." Stark v .. Wickard, 321 U.S. 288~ 309-310

(1944).

31. The foregoing having been said, I declare Magistrate Judge Philip R. Lammens'

avoidance to such duties, or any ruling as to sentencing me to prison without a comprehensive

rebuttal to all issues in this affidavit and Exhibits A and B being placed on record in this case~

places the Court and its officers in disrepute and under suspicion of being influenced to

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effectuate rulings favorable to the U.S. Government 23; which not only sullies the integrity of the

U.S. Government and the Court but violates the Judiciary's duty to be independent of the U.S.

Government's Executive Department, 24 the Code of Conduct for U.S. judges 25, their oath of

office, and court Canons.26 "Fraud on the court occurs when the misconduct harms the integrity

23 The Revenue Act of 1918, c. 18. 40 Stat. 1057, Sec. 213 made the pay of U.S.judges includible in ·'gross income'' subject to the "federal income tax return" program. U.S. Court judges successfully fought against this on the basis of the constitutional requirement that their compensation for services not be diminished while in office. It is questionable why they gave up that premise and conceded to be subject thereto by Revenue Act of 1932, c. 209, Sec. 22,, which reads in pertinent part: hln the case of Presidents of the United States and judges of courts of the United States taking office after June 6, 1932, the compensation received as such shall be included in gross income; and all Acts fixing the compensation of such Presidents and judges are hereby amended accordingly." With an understanding of the "'federal income tax return" program, it seems to me the compensation of judges in the same classification (e.g .• supreme court, appellate court, district courts, administrative courts. etc, and various levels within such classifications; e.g., full time, part time, chief judge, etc.) is made variable by their personal family conditions and thus constitutes a denial of equal pay protections. This notwithstanding, it cannot be denied that independence of judges is tainted by being subject to DOT/IRS administrative authority and possible harassment where their rulings are adverse to the revenue enhancement made possible by misrepresentation of this program being applicable to human beings and property not subject to the IRC statutes.

:?.t '"The Judiciary is one of the three great departments of the government. created and established by the Constitution. Its duties and powers are specifically set forth, and are of a character that requires it to be perfectly independent of the two other departments, and in order to place it beyond the reach and above even the suspicion of any such influence, the power to reduce their compensation is expressly withheld from Congress, and excepted from their power of legislation." 0 'Malley v. Woodrough, 307 U.S. 277, 288 ( 1938)

25 Code of Conduct for U.S. Judges reads in part:

Canon I. A Judge Should Uphold the Integrity and Independence of the Judiciary

Canon 2. A Judge Should Avoid Impropriety and the Appearance oflmpropriety in All Activities

Canon 3. A Judge Should Perform the Duties of the Office Impartially and Diligently

16 Court Canon. 8) A judge shall dispose of all judicial matters fairly, promptly, and efficiently. A judge shall manage the courtroom in a manner that provides all litigants the opportunity to have their matters fairly adjudicated in accordance with the law. ADVISORY COMMITTEE COMMENTARY: The obligation of a judge to dispose of matters promptly and efficiently must not take precedence over the judge's obligation to dispose of the matters fairly and with patience. For example, when a litigant is selfrepresented, ajudge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons, to enable the litigant to be heard. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays. and

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OFFlClAL MISCONDUCT CHARGE: and DEMAND IN THE NAME OF JUSTICE


of the judicial process, regardless of whether the opposing party is prejudiced." Alexander vs.

Robertson~ 882 F2d 421, 424, (91h Cir. 1989).

32. This Court is also noticed that any order adverse to me without absolute proof on record

that IRC statutes are lawfully applicable to me and my proprietary property is not merely

erroneous, but VOID.27

33. I also respectfully remind this Court that "It is the duty of courts to be watchful for the

constitutional rights of the citizen, and against any stealthy encroachments thereon." Mongahela

Nav. Co. v. U.S., 148 U.S. 312. 325 (1893). and a public officer is bound by oath to faithfully

perform and discharge the duties of his office. Courts of justice are established for such purpose.

28 To do less would appear to be a connivance 29 designed to permit DOT/IRS officials to

unnecessary costs. A judge should encourage and seek to facilitate settlement. but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts.

27 ·'While we agree with the Department's argument that a determination by an administrative board becomes as final as a judgment, we also note that the judgment of a court which has exceeded its jurisdiction is void and can be collaterally attacked at any time. Davidson Chevrolet v. City and County of Denver. 138 Colo. 171, 330 P.2d 1116. It follows that a collateral attack may be made here for "acts or orders [of administrative officers or agencies] which do not come clearly within the oowers granted or which fall beyond the purview of the statute granting the agency or body its powers [such orders] are not merely erroneous, but are void."*** "They [officers or agencies] are without power to act contrary to the provisions of the law or the clear legislative intendment, or to exceed the authority conferred on them by statute." 73 C.J.S. Public Administrative Bodies and Procedure§ 59, pp. 383-384. And see, Liebhardt v. Tasher, 132 Colo. 554, 290 P.2d 1107." Flavell v. Department o/Welfare,CityandCozmtyo/Denver, 355 P.2d 941, 943 (1960)

::?s '" ••• No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.

"Courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government, and the docket of this court is crowded with controversies of the latter class. Shall it be said, in the face of all this, and of the acknowledged right of the judiciary to decide in proper cases, statutes which have been passed by both branches of congress and approved by the president to be unconstitutional. that the [ I 06 U.S. 196. 2'.21] courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority,

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perpetuate the wrongful administration of IRC statutes by a scheme or artifice 30 based upon

custom, not law; and evidence a breach of duty 31 placed upon public officials by the

Constitution whereby the people created governments.

STATEMENT OF PERSONAL FACTS

34. With the exception of being in the Navy reserves from 1990 -1994, I. Thomas William

Harter, have never been employed within any agency or instrumentality of the U.S. Government.

35. It is fact that in the past I unwittingly filed IRS 1040 forms based upon my income.

declaring thereon "Amount You Owe.'' The sums so declared on those implied quasi-contracts

were entered on the constructive DOT/IRS account THOMAS W. HARTER. Such entries are

false where IRC subtitle A statutes are lawfully inapplicable to contracts (labor or otherwise)

without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.,, US v Lee, 106 U.S. 196, 220-221, I S.Ct. 240 ( 1882)

29 Connivance. [in part] The secret or indirect consent or permission of one person to the commission of an unlawful or criminal act by another. A winking at; voluntary blindness~ an intentional failure to discover or prevent the wrong; forbearance or passive consent. Pierce v. Crisp. 260 Ky. 519, 86 S. W .2d 293, 296. Black's Law Dictionary. Sixth Edition (1990)

30 Scheme or artifice to defraud. For purposes of fraudulent representation statutes, consists of forming plan or devising some trick to perpetrate fraud upon another. State v. Smith, 121 Ariz. I 06, 588 P.2d 848. Such connotes a plan or pattern of conduct which is intended to or is reasonably calculated to deceive persons of ordinary prudence or comprehension. U.S. v. Washita Const. Co .. C.A.Okl., 789 F.2d 809, 817. ""Scheme to defraud" within meaning of mail fraud statute (18 U.S.C.A. § 1341) is the intentional use of false or fraudulent representation for the purpose of gaining a valuable undue advantage or working some injury to something of value held by another. U.S. v. Mandel, D.C.Md., 415 F.Supp. 997, 1005. See also Artifice; Fraud; Mail fraud. Black's Law Dictionary. Sixth Edition (1990)

.lt Breach. The breaking or violating of a law, right, obligation, engagement, or duty, either by commission or omission. Exists where one party to contract fails to carry out term. promise~ or condition of the contract. Black's Law Dictionary, Fifth Edition (1979)

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involving private commercial transactions. The entries on that account as to years 2006-2011

(the years on the bogus Information charge) are based upon writings fabricated by agents of the

DOT/IRS officials without any support (implied or otherwise) by documents bearing my

signature; thus are false writings on their face.

36. All entries in the IRS system of records regarding constructive account titled THOMAS

W. HARTER are based upon my private commercial transactions not subject to IRC statutes.

They are a product of concealment of the true nature of the "federal income tax" return program

being applicable to particular persons and things (i.e., special law). Thus they are materially

false and libelous per se. The filing of IRS false documents into public records, e.g., Notice of

Federal Tax Lien, not only impairs my unalienable right to contract (which is in effect a seizure

32) but is part of a scheme or artifice intended to deprive me of possession of my property-

which constitutes fraud. 33

37 By discontinuing the execution of Form(s) 1040, I performed an act of disaffirmance 34 to

any entries on constructive DOT/IRS account THOMAS W. HARTER resulting from Form(s)

32 " ••• The reason why a government official might ... effectuate a seizure is wholly irrelevant to the

threshold question of whether the [Fourth] Amendment applies. What matters is the intrusion on people's security from governmental intrusion on people's security from governmental interference ... The fourth [amendment] protects two types of expectations, one involving 'searches' and the other 'seizures'. A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A 'seizure' occurs where there is some meaningful interference with an individual's possessory interests in that property." 466 U.S. at 113, 104 S.Ct., at 1656, 1660, Horton v. California, 496 U.S. 128, 133 S.Ct. 2301, 2306, 110 L.Ed2d 347 (1987); Maryland v. Macon, 472 U.S. 463, 469." Soldal et al. v. Cook County. Rlinois. et al., 113 S.Ct. 538, (1992) [from lawyer edition]

33 "Fraud destroys the validity of everything into which it enters," Nudd v. Burrows, 91 U .S 426; "Fraud vitiates the most solemn contracts, documents and even judgments," U.S. v. Throckmorton, 98 U.S. 61 (1878).

34 Disaffirmance. The repudiation of a former transaction. The refusal by one who has the legal power to refuse (as in the case of a voidable contract), to abide by his former acts, or accept the legal

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1040 made and filed by me due to misrepresentation that it was an act required by law. My

many rejections to subsequent DOT/IRS writings making claim to my property under a

presumption of IRC statutory authority, or official right, is an act of repudiation of all

transactions recorded in the constructive DOT/IRS account THOMAS W. HARTER based upon

false writings manufactured by DOT /IRS agents.

38. Being unfamiliar with court process and procedure, I hired an attorney, Mark Schleben,

believing it to be in my best interest. I shared with him the writings presented to DOT /IRS

officials over the years. While he seemed receptive, I don't believe he truly understood the

matter or was entirely in accord thereto. By the time I realized this it was too late to prevent the

so called trial; the result of which speaks for itself. In order to take back my right to bring truth

and justice to the matter, I discharge him. His notice of discharge was filed October 3, 2013

(Doc. #86).

39. Prior there to, on 09/30/2013) (Doc. #85), Mr. Schleben filed "Defendant's Renewed

Motion for Judgment of Acquittal, Motion to Arrest Judgment, Motion for New Trial, and

Renewed Motion for Kastigar or Jackson-Denno Hearing with Supporting Memorandum of

Law." I understand this was filed on that date because of time constraints in rules. Grounds

used by him are basically: (a) pursuant to two Federal Criminal Procedure rules, "the prosecution

has failed to establish a prima facie case by failing to adduce competent substantial evidence as

to willfulness"; and (b) pursuant to Rules and U.S. Supreme Court and 11th Circuit rulings, he

asks for arrest of judgment or for a new trial ''on the grounds that this Court has failed to: (1)

conduct any kind of Kastigar or Jackson-Denno hearing; (2) suppress all evidence derived from

consequences of them. It may either be "express" (in words) or "implied" from acts inconsistent with a recognition of validity of former transaction. Black's Law Dictionary, Fifth Edition (1979)




the Defendant's compelled and immunized testimonial communications made pursuant to

Section 687.071(6), Florida Statutes (2011); and (3) instruct the jury on the Defendant's good

faith assertion of the Fifth Amendment as justification for not filing tax returns." He goes on to

support this with what appears to be authoritative evidence (not researched by me, as yet). The

problem as I see it is that the filing of these motions is tantamount to my admission that I and my

property are subject to IRC statutes and that I accept being the ''Defendant" in this case when I

believe Defendant THOMAS W. HARTER is the constructive IRS account, not me. To avoid

such false impression while preserving the option to reinstate the Motion for a new trial based

upon the procedural errors enumerated in the Motions in the event officers of this Court place on

record a complete and comprehensive rebuttal to each item in this Jurisdictional Challenge, I am

filing a TEMPORARY I CONDITIONAL WITHDRAWAL OF MOTIONS IN DOCKET #85.

OFFICIAL MISCONDUCT CHARGE

Misconduct in office. Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. See also Malfeasance; Misfeasance. Black's Law Dictionary, Fifth Edition (1979)

40. I, Thomas William Harter charge official misconduct begins with DOT and IRS officials with

permitting, and perhaps instructing, their agents to operate outside the scope of authority provided by law

to their office. It becomes prosecutorial misconduct when the U.S. Attorney prosecutes IRC civil or

criminal case against a human being, like me, whose person and property are not within IRC statutes.

"The United States Attorney is the representative not of an ordinarv partv to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use everv legitimate means to bring about a just one."

Berger v. U.S., 295 U.S. 78, 88 (1935




" ... No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.

US v Lee, 106 U.S. 196, 220-221, 1 S.Ct. 240 (1882)

41. As individuals who routinely prosecute violation of IRC statutes, the U.S. Attorneys have

no excuse for not knowing the precise lawful extent to the enforcement of IRC statutes and

strictly adhere thereto. Wherefore, prosecution of human beings not subject thereto evidences

deliberate, arbitrary, operation outside the scope of their office and an intentional abuse of court

power, process, and procedures-a matter judges are under a duty to prevent.

42. Higher government officials are required to take an oath to uphold the Constitution and

defend the people from enemies, foreign and domestic. It seems they become the enemy when

they aid and abet officials of the DOT /IRS in misapplication of IRC statutory authority with

result to inflict wrongful imprisonment and/or taking of property; and such conduct certainly

falls into the classification of imposing involuntary servitude upon those they wrongfully

prosecute.

"The words involuntary servitude have a 'larger meaning than slavery.' ... The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit which is the essence of involuntary servitude."

Bailey v. Alabama, 219 U.S. 219, 241 (1910)

43. I, Thomas William Harter, hereby charge government individuals directly or indirectly

involved in initiating this case with knowingly acting outside the scope of authority provided by

law with purpose to have me unduly imprisoned (a direct violation of the 13th Amendment) and

eventually accomplish a fraudulent taking of my property through the use of false documents and

Case No: 5: 13-cr-00026-PRL-1 Page 27 of 32 Harter's JURISDICTIONAL CHALLENGE; REJECTION TO ALLEGED CONVICTION;



representation. In so doing, under color of law or color of official right, they commit a crime of

violence 35 that violates 18 U.S.C. § 242 36 and other statutes in U.S. Code titles 18, 42 and 26.

44. False representation 37 is on record when only facts drawn from the IRS system of

records and witnesses brought in to testify with regard to my personal commercial transactions

was used to convince twelve (12) people sitting in the jury box that I am guilty of violating IRC

§ 7203 (an impossibility as seen by the evidence in this affidavit and Exhibits A and B). It is

impossible to get an unbiased and just verdict from jurors when they are not informed of the true

nature of the "federal income tax" return program and they are selected after presuming they are

1040 fonn filers. I understand, and believe, such wrongful court proceedings have been ongoing

for decades with regard to alleging violation only of IRC punishment statutes. It has been used

as a means to unjustly enrich the U.S. Government by a taking of personal proprietary property

under false pretences. However, "It is obviously correct that no one acquires a vested or

protected right [not even the U.S. Government] in violation of the Constitution by long use,

even when that span of time covers our entire national existence and indeed predates it .. "

Walz v. Tax Commission of New York City. 397 U.S. 664, 678 (1970)

35 18 U.S.C. § 16. Crime of violence defined. The term "crime of violence" means. -(a) an offense that has an element the use, attempted use, or threatened use of physical force

against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used in the course of committing the offense.

36 18 U.S.C. § 242 provides for fine and imprisonment upon "'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States."

37 "When one conveys a false impression by the disclosure of some facts and the concealment of others, such concealment is in effect a false representation that what is disclosed is the whole truth. Equitable Life Ins. Co. of Iowa v. Halsey, Stuart & Co., 312 U.S. 410, 61 S.Ct. 623, 85 L.Ed. 920 (1941 ); Dennis v. Thomson, 43 S.W.2d 18, 240 Ky. 727 (1931); 37 C.J.S. Fraud,§ 16, p. 247; Restatement (Second) of Torts,§ 529." State ofArizona v. Coddington, 135 Ariz. 480, 482; 662 P.2d 155; 1983

Case No: 5:13-cr-00026-PRL-I Page 28of32 Harter's JURISDICTIONAL CHALLENGE: REJECTION TO ALLEGED CONVICTION;



45. Such abuse of court process and procedures takes on an even more onerous character

(e.g., direct violation ofthe13th Amendment) when it involves false imprisonment by concealing

that the IRC statutes have no lawful force or effect upon the accused, like me.

CLOSING STATEMENT

46. As established by the U.S. Supreme Court mandate: "There are no constructive

offenses; and before one can be punished, it must be shown that his case is plainly within

the statute." Fasulo v. United States, and McNally v. United States., supra. This case and my

alleged conviction of six (6) counts of violation for 26 U.S.C. § 7203 stand or fall where I am not

the 26 U.S.C. § 7343 "person" subject to IRC statutes.

4 7. The authoritative evidence in this affidavit and Exhibits A and B prove my private

commercial transactions are not within IRC statutes and that the DOT /IRS constructive account

THOMAS W. HARTER has no basis in law, statutory or otherwise - thus entries thereon are

bogus. Unless this is disproved, this case is a mistrial ab initio and makes it impossible for the

guilty verdict by people sitting in the jury box to represent my being duly convicted for violation

of 26 U.S.C. § 7203; and justice requires such record be made in this case.

48. Where IRC statutes have no lawful application upon me and my property, the Indictment

is groundless and must be considered presented in bad faith as the U.S. Attorneys making the

charge routinely deal with IRC prosecutions, and so have no excuse for initiating a case not

within the scope of IRC statutory authority (i.e., a fiction of law 38 ) and constitutes a fraud upon

the court. 39

38 Fiction of law. [in part] An assumption or supposition of law that something which is or may be false is true, or that state of facts exists which has never really taken place. An assumption, for purposes of justice, of a fact that does not or may not exist. A rule of law which assumes as true, and will not




49. Article I Courts were established and are authorized to adjudicate statutory violations;

and need only look to the four corners of the document making the accusation when rendering

decisions and opinions with regard thereto. However, when the accused is not subject to the

statutory authority relied upon, the matter becomes one of violation of rights and other common

law matters cognizable only in an Article III Court.

50. Declaring the limits of statutory grants of authority to administrative agents is a judicial

function entrusted to the courts (see,, Stark v. Wickland, supra), and the job of the judge is to

apply the law, not to bolster the government's case (see, Beaty v. U.S., supra). Where that scope

of authority is exceeded, estoppel is appropriate remedy.

51. Officers of this Court are respectfully reminded that a "defense upon the merits" is one

which depends upon the inherent justice of the defendant's." Black's Law Dictionary, Fifth

Edition (1979); and "The government of the United States has been emphatically termed a

government of laws, and not of men. It will certainly cease to deserve this high appellation,

if the laws furnish no remedy for the violation of a vested legal right." Marbury v. Madison,

5 U.S. 137, 163, 1 Cranch 137, 1 L.Ed. 60 (1803). As said by Justice Louis Brandeis: "In a

government of laws, existence of the government will be imperiled if it fails to observe the

law scrupulously." Olmstead v. U.S., 277 U.S. 438, 485 (1928)

52. It cannot be denied my imprisonment where not duly convicted is a violation of my rights

secured under the Constitution of the United States of America and a direct violation of its

allow to be disproved, something which is false, but not impossible. Ryan v. Motor Credit Co., 30 N.J.Eq. 531, 23 A.2d 607, 621. Black's Law Dictionary, Fifth Edition (1979)

39 "Fraud on the court occurs when the misconduct harms the integrity of the judicial process, regardless of whether the opposing party is prejudiced." Alexander vs. Robertson, 882 F2d 421, 424, (9th Cir. 1989).




Thirteenth Amendment. Nor can it be denied that false imprisonment is constructive kidnapping

and habeas corpus relief is applicable.

53. In a criminal case, the responsibility to prove without a shadow of a doubt that the

accused is guilty is upon the government. Wherefore, onus probandi 40 is on record where

officers of this Court fail to bring forth the enactment by Congress that imposes a tax "on"

income and disprove each item in this affidavit and Exhibits A and B.

54. Based on this filing and what is proved by the authoritative evidence in this affidavit and

Exhibits A and B, I, Thomas William Harter, hereby declare it incumbent on officers of this

Court affirmatively prove I am within IRC statutes, and this Court require they do so

within a time certain (suggested to be no later than November 10, 2013) under the caveat that,

where they fail to timely do so, the Court will sua sponte rule this case to be a mistrial ab

initio and immediately make void the alleged conviction.

So said under oath without waiver of any of my rights or defenses and without intent to

be prejudiced hereby By: A. 4t' $A... . Thomas William Harter 5925 SW 88th Pl Ocala, FL 344 78 (352) 209-2772

Exhibit A- copy of my MEMORANDUM OF LAW (16 page affidavit). Exhibit B-copy of my AFFIDAVIT OF FACTS & MERITS (15 page affidavit)

40 Onus probandi Burden of proving the burden of proof. The strict meaning of the term "onus probandi" is that, if no evidence is adduced by the party on whom the burden is cast, the issue must be found against him. Black's Law Dictionary, Fifth Edition (1979) p.983

Case No: 5: 13-cr-00026-PRL- l Page 31 of 32 Harter's JURISDICTIONAL CHALLENGE; REJECTION TO ALLEGED CONVICTION;



JURAT by Notary Public

ID-pl

On this _____ day of October, 2013, the foregoing was subscribed and sworn to

before me, a Notary Public of the State of Florida, by Thomas William Harter, proven to me to

be this human being by satisfactory evidence.

CERTIFICATE OF SERVICE

I hereby certify that on this J_Q_ day of October, 2013 the original and one copy of

Harter's JURISDICTIONAL CHALLENGE; REJECTION TO ALLEGED CONVICTION;

OFFICIAL MISCONDUCT CHARGE; and DEMAND IN THE NAME OF JUSTICE affidavit

is being hand presented to the Clerk of this Court for filing into CASE NO. 5:13-cr-26-0c-2PRL

- the copy to be delivered to Magistrate Judge Philip R. Lammens.

I further certify that on this day an exact copy of this affidavit is being sent via the United

States Postal Service first class mail, postage prepaid, addressed as follows to:

Samuel D. Armstrong, Assistant U.S. Attorney Sally Stanis, United States Probation Officer United States Attorney's Office - FLM Middle District of Florida 35 SE 1st A venue, Suite 300 207 NW Second Street, Suite 257 Ocala, FL 34471 Ocala, FIL 34475-6635

Byd_ w.1S?l Thomas William Harter

NOTE: copy is provided to Sally Stanis, the individual assigned to prepare a Presentence Investigation Report, for purpose to stand as my testimony to any and all questions thereto.




Case styled:

EXHIBIT A TO

Darter's JURISDICTIONAL CHALLENGE; REJECTION TO ALLEGED CONVICTION; OFFICIAL MISCONDUCT CHARGE; and


FILED IN THE MATTER OF


OCALA DIVISION

UNITED STATES OF AMERICA CASE NO. 5:13-cr-26-0c-22PRL

v.

THOMAS W. HARTER


MEMORANDUM OF LAW identifying property subject to internal revenue laws and "the person liable" therefor; and

REVOCATION of SIGNATURE on IRS FORMS. (in affidavit form)

Florida state ) ) SS.

Marion county)

I, Thomas William Harter, being over the age majority; of sowi:d mind, and having first hand knowledge of the facts, hereby say under penalties of perjury that what is stated herein is true and correct to the best of my knowledge and belief, that it is materially complete, not misleading, the truth, the whole truth and nothing but the truth.

1. I, Thomas William Harter, state that Thomas William is my given name and Harter is my family name. BE IT KNOWN, my name is my property. I do not grant permission to the Department of the Treasury Internal Revenue Service (IRS) or any other person to use my names without my express written permission. This applies to the use of my names in whole or in part, and in any fonn (i.e., all upper c~e letters, all lower case letters, or upper and lower case letters).

AUTOMATIC DEFAULT if not timely rebutted.

2. This affidavit is made wi~ intent to identify the property subject to internal revenue laws and "the person liable" therefor. It will be delivered to anyone who contacts me with regard to any subject matter related to what is called "income tax." The failure or neglect of the IRS Commissioner and/or lawyers within the .IRS or the Department of Justice (DOJ) to contradict the evidence in this affidavit on an item by item basis (in affidavit form if it is to have equal weight) will constitute a dishonor that establishes as fact, for all legal purposes, that the Internal Revenue Code (IRC or 26 U.S.C) statutes and IRS process and procedures are inapplicable to me and/or any interest I hav in my property; thus causing any communication sent to me with regard to the subject matter of what is called "income tax" to be evidence of offers to enter into personal transactions and thus subject to control under Uniform Commercial Code standards only.

3. BE IT KNOWN, I do not plan to dispute· any facts. This affidavit and anything produced by me to which I attach this affidavit is not to be misconstrued as a dispute to any facts.

REVOCATION OF SIGNATURE

4. I, Thomas William Harter, hereby ~VOKE my signature on any and all IRS Form(s) 1040 and any other IRS Form(s) ever signed by me for the reason that such an act was performed by mistake due to misrepresentation.

Taxation

S. From studies of laws, regulations, and United States (U.S.) Supreme Court rulings, some of which are quoted herein, "the person liable" in the IRC ~to subtitle A "income tax" statutes is

Memorandum of Law & Revocation of Signature on IRS Fonns Page 1 of 16


someone whose conduct is effectively connected with a trade or .business within an agency or instrumentality of the U.S. Government; hereinafter referred to as U.S. ~mployee, U.S. person (defined in 26 U.S.C. Sec. 7701(a)(30}, see footnote 2), qr.the person liable. I am not so employed.

6. Article I, Section 8, Clause 1 of the <:;onstitution for the united States of America, gives Congress the power to lay and collect taxes, duties, imposts and excises. By the cannon "ejusdem generis" 1, this Article.must be given the construction ~at duties, imposts and excises are the forms of taxes permitted. Such tax is passed along to the consumer within the cost of the product or service and thereby considered an indirect tax even though the burden to pay it eventually falls upon the one who purchases the product or service. However, Congress has declared: "The labor of a human being is not a commodity or article of commerce" (15 U.S.C. Sec. 17); thereby expressing knowledge that any taxation upon the fruits of one's labor or accretions thereto (income) cannot be an indirect tax.

7. The principle "ejusdem generis" also applies to the "United States person" defined in 26 U.S.C. Sec. 7701(a)(30).2 A U.S. employee (an individual) is a citizen or resident of the U.S. Government whose gross income· (other than that which is part of their foreign estate or trust within the meaning of section 770l(a)(31)) 3 is includible in gross income under IRC subtitle A and subject to collection at the source under authority in IRC chapter 24, and thereby also subject to IRC Subtitle F, Procedure and Administration, statutes.

1. e}usdem generls (ee-jes-dam jen-e-ris also ee-joos- or ee-yoos-). [Latin "of the same kind or class"] A cannon of construction that when a general word or p~rase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed. • For example, in the phrase horses, cattle, sheep, pigs, goats, or any other barnyard animal, the general language or any other barnyard animal -- despite its seeming breath ·- would probably be held to include only four-legged, hoofed mammals (and thus would exclude chickens). Also, spelled eiusdem generis. •• Also termed ejusdem generis rule; Lord Tenterden's rule. Cf. EXPRESSIO UNIUS EST EXCLUSIO AL TERIUS; NOSCITUR A SOUS; RULE OF RANK.

Black's Law Dictionary, Seventh Edition (1999), page S9S

2. 26 U.S.C. Sec. 770l(aX30) United States person. [IRC 2000 Edition] The term "United States person" means-

. (A) a citizen or resident of the United States, (B) a domestic partnership, (C) a domestic corporation, (D) any estate (other than a foreign estate, within the ineaning of section 7701 (a)(3 J )), and (E) any trust if --

(i) a court within the United States is able to exercise primary supervision over the administration of the trust, and

(ii) one or more' United States persons have the authority to control all substantial decisions of the trust.

3. On next page.

Memorandum of Law & Revocation of Signature on IRS Forms Page 2of16


8. The Constitution for the united States of America only authorizes direct taxation wider the rule of apportionment. The U.S. Supreme Court described direct and indirect taxes as follows:

"Ordinarily, all taxes paid primarily by persons who can shift the burden upon someone else, or who are under no legal compulsion to pay them, are considered indirect taxes; but a tax upon property holders in respect or their estates, whether real or personal, or or the income yielded J:>y such estates, and the payment of which cannot be avoided, are direct taxes." [emphasis added]

Pollock y Fanners' Loan & Trust Co, 157 U.S. 429, 558 (1895)

9. A common misconception exists that the.IRC "income tax" statutes in subtitle A (sections · 1through1564) impose a tax upon income. If this were so then it would have to be apportioned to remain constitutional. Not being apportioned, Congress recognizes that it is not a direct tax. Not being in the class of an indirect or a direct tax, what is called "income tax" must be something other than a perfect tax. A hint of what it is is given in Pub. L. 95-600, title I, Sec. 163, Nov. 6, 1978, 92 Stat. 2810, as amended by Pub.L. 99-514,Sec. 2, Oct. 22, 1986, 100 Stat, 2095, where Congress states under (e) Definitions:

"(3) the term 'Federal income tax return' means any return required under chapter 61 of the Internal Revenue Code of 1986 with respect to the tax imposed on an individual under chapter 1 of such Code."

The IRS Form 1040, U.S. Individual Income Tax Return, is the form prescribed for accomplishing this "Federal income tax return" act (see regulation, 26 CFR l .6012(a)(6}, which is duly published under 44 U.S.C. 1501 et seq~); thus the "return" act and the Form 1040 are two different subject matters.

U.S. Government contracts include a "bailment"

10. A "return" liability (commonly referred to as "income tax") stems from U.S. employees receiving public money (property subject to being returned to the U.S. Treasury) along with income (actual exchange for labor) in each check received from the Y.S. Government employer through the U.S. Treasury (see Sec. 213 of the Revenue Act of 1918, c. 18, 40 Stat. 1057, which reads in part: "That for the purposes of this title ... the term "gross income" - (a) includes gains, profits, and income derived from salaries, wages, or compensation for personal service ... all officers and employees, whether elected or appointed, of the United States ... , of whatever kind and in whatever form paid ... "); explained by the· U.S. Supreme Court ruling:

No judge is required to pay a definite percentage of his salary, but all are commanded to return, as a part of "gross Income", "the compensation received as such" from the United States. From the "gross income" various deductions and credits are allowed, as for interest paid, contributions or gifts made,

.·

3. 26 U.S.C. Sec. 770I(a)(3 I) Foreign estate or trust. [IRC 2000 Edition] (A) Foreign estate

The term "foreign estate" means an estate the income of which, from sources without the United States which is not effectively coMected with the conduct of a trade or business within the United States, is not includible in gross income under subtitle A. (B) Foreign trust

The tenn "foreign trust" means any trust other than a trust described in subparagraph (E) of paragraph (30).

Memorandum of Law & Revocation of Signature on IRS Fonns Page 3of16


personal exemptions varying with family relations, etc., and upon the net result assessment is made. The plain purpose was to require all judges to return their compensation as an item of "gross income," and to tax this as other salaries. This is forbidden by the Constitution. [emphasis added]

Miles y Grabam, 268 U.S. SOI, 509.(1924)

11. BE AW ARE, the income of the U.S. employee is exempt from levy and withholding in respect to "income tax" (see 26 U.S.C. Sec. 633l(a) regulation 26 CFR 404.6334(d)-l(a)).4 Therefore income or accretion to one's estate by being beneficiary to a trust foreign to the U.S. Government is exempt from levy, withholding, and reporting requirements and, not being includible in gross income unde·r subtitle A (see.Sec. 7701(a)(31) in footnote 3), is not subject to any IRC subtitle F collection enforcement procedures.

12. 26 U.S.C. Sec. 6012(a), Persons required to make returns of income, deals only with gross income includible in gross income under subtitle A. The subject matter is not a tax on income, it is "the return" of the public's money (termed "Federal income taxes"; a compound noun used to describe the U.S. government's property) received as an item of gross income from a U.S. employer as a bailment.S The U.S. employee is a transferee (see 26 U.S.C. Sec. 6901) of such property that is subject to being returned, except for the sums they can "gain" through verifying the "deductions and credits" allowed; which is done on the IRS Form 1040. The U.S.

4. 26 U.S.C. Sec. 6331 (a) Authority of the Secretary. - If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such fw:ther sum as shall be sufficient to cover the expenses of the levy) upon all property and rights to property (except such propeny exempt under section 6334) belonging to such person or on which there Is a Hen provided In this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages or any omcer, employee, or elected official, of the United States, the District or Columbia, or any agency or Instrumentality orthe United States or the District of Columbia, by serving a notice or levy on the employer (as defined in section 3401(d) or such officer, employee, or elected official.

26 CFR Sec. 404.6334(d)-1 Minimum exemption from levy for wages, salary, or other income. (a) In general. Under section 6331 (a), if an individual liable for any tax neglects or refuses to pay

such tax within I 0 days after notice and demand, the tax may be collected by levy upon property or rights to property belonging to such individual, including amounts payable to or received by him as wages, salary, or other income. Under section 6331 ( dX3), a levy upon wages or salary is continuous from the date the levy is first made until the liability giving rise to the levy is satisfied or becomes unforceable by reason of lapse of time. Under section 6334(a)(9), however, certain amounts payable to or received by an individual as wages or salary for personal services, or as Income from other sources are exempt rrom levy .... " [emphasis added]

S. bailment. I. A delivery ofpenonal property by one penon (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract. • Unlike a sale or gift of personal property, a bailment involves a change in possession but not in title. . . . · A bailment relationship can be Implied by law whenever the personal property of one person is acquired by another and held under circumstances in which principles or justice require the recipient to keep the property safely and return it to the owner." SA Am. Jur. 2d Ballment Sec. 1 (1997).

Black's Law Dictionary, Seventh Edition (1999)



employee is "the person liable" as a fiduciary to return to the U.S. Treasury the public's money occupied by them that they cannot lawfully claim based upon their employment contract within the U.S. Government. When "the person liable" does not make a complete return (re-transfer) of the public's money they can be compelled to specific perform~ce to make an appearance in a district court of the U.S. Government (whether under summons authority provided in 26 U.S.C. Sec. 7602 or other subtitle F statute) for a courts determination as to the subject matter of making a complete re-transfer of the public's money into the U.S. Treasury.

13. Duly noticed regulation 26 CFR 1.6012-l(a)(S) imposes a duty upon the Commissioner or his delegate to contact "the person liable" in the exercise of26 U.S.C. Sec. 6020(a) authority and make a Form 1040 with the permission of the "person liable" when "the person liable" has not performed the "Federal income tax return" act. Such permission is on record when "the person liable" delivers a Form 2848, Power of Attorney; which is evidence of power of attorney provided to the revenue agent to prepare a Form 1040 for "the person liable" for their signature. Refusal by "the person liable" to provide such form is the evidence required to prove Powell Court (infra) element (3) that the information sought is not already within the Commissioner's possession and that "the person liable" refuses to make the required re-transfer of the public's money that is in their possession. This "refusal" must be fact on record for 26 U.S.C. Sec. 633l(a) (see footnote 4) to be applicable.

14. Where "the person liable" willfully refuses to provide the revenue agent with a Power of Attorney.to make a Form 1040 for his or her execution then 26 U.S.C. Sec. 6020(b) authority is available to remedy the required "return" of the public's money into the U.S. Treasury. 26 U.S.C. Sec. 7602 is authority for the court's process to be applied to accomplish that end by compelling the production of testimony in the fonn of books and records. However, the court does not have authority to compel testimony of a criminal nature from "the person liable." 6 Thus, 26 U.S.C. Sec. 7602 authority is for the legitimate purpose of the judge making. an indirect record of probable cause of criminal conduct on the part of "the person liable" after an in camera review of their books and records and, if so, to provide permission to agents of the IRS Commissioner to seek infonnation for application of26 U.S.C. Sec. 6020{b) remedy by way of third party summons. Where there is no evidence of criminal conduct in the books and records of "the person liable" then the judge can order "the person liable" to bring those books and records to the revenue agent for a determination of civil liability in respect to the return of "Federal income tax" and, where they refuse to do so, under 26 U.S.C. Sec. 7604 the court can legitimately "punish as for co~tempt" "the person liable." The court does not have authority to imprison a man or woman who is NOT an IRC "person liable" for the purpose to coerce them into performing the act of delivering books and records to a revenue agent of the IRS Commissioner in respect to income that is foreign to the U.S. Government (see footnote 3); income that is exempt from levy.

6. Fifth Amendment to the Constitution of the United States. "No person shall be ... compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation."

Memorandum of Law&. Revocation of Signature on IRS Fonns Page S of 16


Therefore such imprisonment would be for an improper purpose; which is abuse of the court's process under the Powell Court ruling.

"It is the court's process which is invoked to enforce the administrative summons and a court many not pennit its process to be abused. Such ap abuse would take place if the summons bad been lssged for an Improper purpose, suc:h as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reDectln& on the rood faith of the particular inyestlgation. The burden of showing an abuse of the court's process is on the taxpayer, and it is not met by a mere showing, as was made in this case, that the statute of limitations for ordinary deficiencies has run or that the records in question have already been once examined." [emphasis added]

Unjted States y Powell, 379 U.S. 48, 58 (1964)

15. As to "the person liable" under 26 U.S.C. Sec. 7602, the Powell Court ruled that the Commissioner must show: ( 1) that the investigation will be conducted pursuant to a legitimate purpose, (2) that the inquiry may be relevant to the purpose, (3) that the information sought is not already within the Commissioner's possession, and ( 4) that the administrative steps required by the Code have been followed (Powell at page 58). Where the Commissioner cannot provide evidence as to an affirmative position that all four (4) elements exist then the application to a district court of the U.S. Government for enforcement of a 26 U.S.C. Sec. 7602 Summons would not be for a legitimate purpose and the court's process is permitted to be abused; a condition prohibited under the Powell Court ruling.

Statutory lien

16. Where the judge orders the "person liable" to deliver their books and records after an in camera review and a determination that civil liability exists against "the person liable", the liability of "the person liable" establishes that an operation of law lien in favor of the U.S. Government is on record, as is on notice in:

26 U.S.C. Sec. 6321. Lien for taxes. If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount

(including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.

26 U.S.C. Sec. 6321 gives notice of the conditions necessary for an operation oflaw lien to exist against "the person liable" under their contract one of pledge in favor of the U.S. Government. The filing ofa notice thereof into county public records preserves the U.S. Governments place among private liens that might exist against "the person liable." The filed Notice of Lien is not the actual lien (which exists by statute), nor does such recorded document mean a valid statutory lien exists. Only a valid statutory lien against "the person liable" provides authority for the levy action (power of distraint and seizure by any means; see 26 U.S.C. Sec. 7701(a)(21)) and gives cause for the people (the public) to bring action against "the person liable" to seize the public's property in their possession. In most instances, however, there is sufficient authority under 26 U.S.C. Sec. 6331{a) for levy against "the person liable" (officer, employee, or elected offici~l of the U.S. Government) by issuing to their "employer" (as defined in section 340l(d)) a Notice of Levy against their salary or wages. This does not include "income" (which is exempt from levy; see footnote 4 ).



17. The court's process would be abused where a judge is not asked to make, or does make, an in camera review of the books and records of "the person liable" before any administrative measures as to civil or criminal procedures are implemented. The judge of the district court of the U.S. Government is on notice in 26 U.S.C. Sec. 7403(c) "to adjudicate all matters and finally determine the merits of all claims to liens upon the property"; which includes the Secretary/Commissioner's claim. Thus, should the need arise, this affidavit must be admissible as evidence that there is no m~ritrit} any.claim tbat.astatutoI:tY lieQ in favor of the U.S. Government can exist against my property, and the.judge would be. under a duty to determine the merits of what is stated herein.

Admiilistrative and court process abused

18. Using the vehicle of a collateral dispute that the man or woman summoned Gudicially or administratively) is willfully refusing to be a surrogate for an entity (account) manufactured by revenue agents as justification for the taking of their property or imprisonment makes a record of abuse of process; and makes a record of violating many laws and the Fifth Amendment to the Constitution of the United States, which dictates· "nor shall private property be taken for public use, without just compensation."

19. Where a revenue agent is directed to declare under oath that, in their opinion, statutes in IRC Chapter 75 (sections 7201 through 7344) have been violated or that the 4 step due process requirements of the Powell Court standard has been met; and such declaration is applied in a court action brought against a man or woman who is NOT "the person liable," then there is the question of abuse of administrative process intending that the court's process be abused, and raises a question that such declaration is a product of suborning perjury. This is evidence of collusive conduct and, under 28 U.S.C. Sec. 1329, the court does not have jurisdiction to address the action. To proceed against a man or woman who is NOT "the person liable" under the IRC is to compel them to specific performance to labor for the revenue agent and/or others who benefit thereby. This condition is prohibited under Bailey v. Alabama, 219 U.S. 219, which ruled that "no person can be compelled to specific perfonnance to labor for others."

Use of I~ forms

20. IRS forms are provided for use by a U.S. employer and other U.S. agencies who transfer the pu~lic's money out of the U.S. Treasury; e.g., Fonn(s) W-2 and W-4 with regard to withholding at the source; and Form(s) W-9 or the W-8ECI with regard to not withholding, shown as proper forms for such persons on the W-8BEN, and Form(s) 1040 for use by the U.S. employee to accomplish a proper re-transfer ("return") of the public's money to the U.S. Treasury. Such forms are necessary to account for the public's money flowing in and out of the U.S. Treasury, but do not apply t9 the income a man or woman derives from exercising their right to be party to a contract one of foreign trust (employment or otherwise); which is defined by Congress in 26 U.S.C. Sec. 7701(a)(3 l), Foreign estate or trust (see footnote 3). However, because of the common misconception that the IRC statutes apply to income from any source, most private sector employers and others (e.g., financial institutions) threaten not to contract unless the other party agrees to the use of IRS fonns, which infers agreement to have the private


~r:\.-.\~,; A


transaction(s) subject to what is called "income tax." Thus such IRS form is executed under economic compulsion and performing the act of making Sl:lCh prejudicial record cannot be considered voluntary under the Miranda Court ruling:

" ... The rule is not that ... the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; ... the accused was not involuntarily impelled to make a statement, when but for the improper influences he would have remained silent."

Miranda y Arimna, 384 U.S. 436, 462 (1965)-- quoting from Bram v. U.S., 168 U.S. 532 at 540.

21. The U.S. Supreme Court ruled this "return" program to be in its nature an indirect tax unless and until its enforcement causes it to be a direct tax, which is what occurs when revenue agents use IRC statutes improvidently to enforce the sending of private property to the IRS and/or U.S. Treasury, "in which case the duty would arise to disregard form and consider substance alone."

"Moreover, in addition, the conclusion reached in the Pollock Case did not in any degree involve holding that income taxes generically and necessarily came within the class of direct taxes on property, but, on the contrary, recognized the fact that taxation on income was in its nature an excise entitled to be enforced as such unless and until it was concluded that to enforce it would amount to accomplishing the result which the requirement as to apportionment of direct taxation was adopted to prevent, in which case the duty would arise to disregard form and consider substance alone, and hence subject the tax to the regulation as to apportionment which otherwise as an excise would not apply to it. 11 [emphasis added]

Bmshaber y. Unjon Pacjfic Railroad Co, 240 U.S. 1, 16-17 (1915) Form is the IRS process and procedures. Substance is an exaction not authorized by law.

22. The Secretary under 26 U.S.C. Sec. 6103(b)(6) and regulations knows, or must know, the "taxpayer identity" means the name of a person with respect to whom a return is filed. Yet it seems agents of the IRS Commissioner (persons who are not considered employee of the U.S. Government ') are trained to gather information via IRS process and procedures about income that is exempt from levy (private property not subject to the 26 U.S.C .. Sec. 6321 operation of law lien}, and to use such information to fabricate sums to create an account (entity) bearing a title like the name of a human being (without their pennission) with intent that private property in the amount of such sums (or more) be sent to them and/or the IRS for use by the U.S. Government, even though this is in violation of many laws (e.g., 26 U.S.C. Sec. 7214 8) and the

7. Sec. 4000. Appointment. [1939 IRC] · The Commissioner may, whenever in his judgment the necessities of the service so require, employ competent agents, who shall be known and designated as internal revenue agents, and, except as provided for in this title, no general or special agent or Inspector of the Treasury Department in connection with internal revenue, by whatever designation he may be known, shall be appointed, commissioned, or employed. [In other words, the Commissioner can hire whomever he needs to help him do his job, but his agents are not considered appointed, commissioned or employed by the U.S. Government. Was this done with · purpose to allow revenue agents to enter into private agreements and use this as a means to allow the U.S. Government to avoid responsibility when revenue agents act outside their official capacity (outside the law)?]

8. On next page.



Fifth Amendment to the Constitution for the united States of America as declared in: 26 CFR 601.106(t)(l) "Rule 1. An exaction by the U.S. Government, which is not based upon law, statutory or otherwise, is a taking of property without due process of law, in violation of the Fifth Amendment.

23. I cannot be considered to be an entity no matter whether my name is spelled in upper and lower case letters or in all capital letters. Any entity created by IRS revenue agents using my name (my property) is done without my permission and is intended to trick me, or any private sector entity to whom this affidavit is presented, into believing that there is a tax liability in favor of the U.S. Government when there is only the intent that I be a surrogate for such IRS agent created entity and/or be compell~d to be such surrogate via an illegitimate collateral dispute.

24. Not being a transferee of the public's money (see 26 U.S.C. Sec. 6901) means my entire estate or trust is foreign to the U.S. Government as defined in 26 U.S.C. Sec. 7701(a)(3 l) [footnote 3], and therefore not subject to any withholding or reporting requirements. Compelling me to specific performance to labor for the IRS Commissioner and others would be on record where the private sector entity to whom this affidavit is presented (as the trustee of any trust establish by me) takes it upon itself to ignore my position and makes the IRS party to such trust as a collateral beneficiary. If this does occur, the ruling by the U.S. Supreme Court in Bailey v. Alabama, 219 U.S. 219, is violated. The Bailey Court ruled that "no person can be compelled to specific performance to labor for others" and that such a condition is a form of involuntary servitude called peonage. At page 241, the Bailey Court ruled:

The plain Intention [ofthe Thirteenth Amendment] was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the penonal service or one man is disposed of or coerced for another's benefit which is the essence of involuntary servitude.

8. 26 U.S.C. Sec. 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, or receives any fee,

compensation, or reward, except as by law prescribed, for the perfonnance of any duty; or

(7) who makes or signs any fraudulent entry In any book, or makes or signs any fraudulent certificate, return, or statement; or

(9) who demands, or accepts, or attempts to collect, directly or indirectly as payment or gift, or otherwise, any sum or money or other thing or value for the compromise, adjustment, or settlement of any charge or complaint for any violation or alleged violation oflaw, except as expressly authorized by law so to do; shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both •...



Only injury to government provides cause

25. Where the IRC statutes are inapplicable to me and/or my property, and my conduct of willful failure to compel myself to specific performance to labor for the U.S. Government and its agents is perceived as injuring them, then remedy is found under Bailey v. Alabama, 219 U.S. 219, where, at pages 242-243, that court relied upon the Clyatt Court ruling as to what is peonage.

"What is peonage? It may be defined as a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness. As said by Judge Benedict, delivering the opinion in Jaremillo v. Romero, 1 N.Mex. 190, 194: 110ne fact existed universally; all were indebted to their masters. This was the cord by which they seemed bound to their masters' service." Upon this is based a condition of compulsory service. Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage, however created, is compulsory service, involuntary servitude. The peon can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labor or rendering of services in payment of a debt. In the latter case the debtor, though contracting to pay his indebtedness by labor or service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service."

Clyatt y. U.S., 197 U.S. 207, 215-216 (1905)

As shown by this ruling, where the U.S. Government is injured by my conduct remedy can be in the form of damages upon a verified complaint of injury and proof of injury to the government in a State court of justice under common law; just as I would have a cause of action for damages personally against any person whose conduct results in injury to me.

Revenue agents stripped of immunity

26. In Bothke v. Fluor Engineers and Constructors, Inc., 713 F.2d 1405 (1983), 9th Cir., the Court gives notice that agents of the IRS Commissioner are stripped of immunity and accept personal responsibility for damages when they act outside the scope of the law. The following are excerpts from that case [emphasis added].

(11] With the IRS's broad power must come a concomitant responsibility to exercise it within the confines of the law. The Court has emphasized that no official is above the law, and that broad powers present broad opportunities for abuse. ·Butz, 438 U.S. at 505-06, 98 S.Ct. at 2910-11. Cf. Mark v. Groff, 521 F.2d at 1380 n. 4. pages 1413-14 II. Qualified lmmun ity

The decision below reflects a determination that Terry [IRS agent] acted in good faith. However, when it was rendered, officials ascertaining the qualified immunity defense had to demonstrate that they met an objective standard of good faith as well. See, e.g., Woodv. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Bd.2d 214 (1975). Ignorance or disregard of settled, undisputable law negates the defense even If subjective good faith exists. Id. at page 1414 Bothke argues that Terry has not met this standard, because (I) the IRS allegedly 'did not follow statutory procedures, and (2) he warned Terry twice that she was proceeding illegally ....

[13] For a levy to be statutorily authorized in the circumstances here, two conditions must be fulfilled. First, a 10-day notice of intent to levy must have issued. See 26 U.S.C. Sec. 633 l(a). Terry ascertained that this had been done. Second, the taxpayer must be liable for the tax. Id. Tax liability is



conditions precedent to the demand. Merely demanding payment, eyen repeatedly, does not cause liability.

[14, IS] For the condition precedent of liability to be met, there must be a lawful assessment. either a yoluntaey one by the taxpayer or one procedurally proper by the IRS. Because this country's income tax system is based on voluntary self-assessment, rather than distraint, . . . the Service may assess the tax only in certain circumstances and in conformity with proper procedures.

A procedurally proper assessment by the IRS can only exist as to the public's money occupied by a U.S. employee who is required to "return" (re-transfer) it into the U.S. Treasury. A voluntary assessment is one where someone who is NOT "the IRC person liable" voluntarily taxes their income directly by making an IRS Form 1040 declaring an amount certain as "amount you owe" · thereby creating a promissory note, the payment of which is accepted as a gift for the use of the U.S. Government (see 31 U.S.C. Sec. 321(d)). A gift is a voluntary transfer of title to property. However, performing such act cannot be considered voluntary where influenced by the use of or the threatened use of legal and or physical coercion (see the Miranda Court quote in paragraph 20 above).

27. The Bothke Court went on to say: [18] "More importantly, the statute does not require that the taxpayer put a legal classification on his

protest. The Service, however, with Its expertise, Is obliged to know its own governing statutes and to apply them realistically." at page 141 S - n. S. . . . If the field officer has reasonable notice of possible irregularities that would make a levy illegal, whether the notice comes by examination of the file or otherwise, the matter must be resolved, if the exercise of discretion to levy is to have a factual basis of adequate scope. This is especially true in a routine case where no jeopardy assessment is involved and the circumstances are not exigent This follows from an application of good faith immunity standards to the fact that field officer job duties include investigating an account before determining that a levy is warranted.

Botbke y Fluor Enaineers and Constructors Inc, 713 F.2d 1405 (1983), 9th Cir.

States permitted to have part of the "Federal Income Tax" required to be returned to the U.S. Treasury redirected to the State taxing authority

28. Under 4 U.S.C. Sec. 111, 9 the States are permitted to have the 26 U.S.C. Sec. 7701(a)(30)(A) "U.S. person" employed witlµn an agency or instrumentality of the U.S. Government located within the geographical borders of the State redirect to the State trucing authority part of the "Federal income tax" (U.S. Government property) they are required to return to.the U.S. Treasury. The "U.S. person" is not prejudiced thereby because they get credit on their Form 1040, U.S. Individual Income Tax Return, with regard thereto. However, they are prejudiced thereby when the "Amount you owe" shown on their Form 1040 contains gross income that is foreign to the U.S. Government [see footnote 3].

9. 4 U.S.C. Sec. 111. Same: taxation affecting Federal employees; income tax. The United States consents to the taxation of pay or compensation for personal service as an officer or

employee of the United States, a territory or possession or political subdivision thereof, the government of the District of Columbia, or an agency or instrumentality of one or more of the foregoing, by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.

Memorandum of Law & Revocation of Signature on IRS Forms Page 11 of 16


Purpose for filing IRS Notices of Federal Tax Liens or State equivalent into county public records

29. The legitimate purpose for filing IRS Notices of Federal Tax Liens into county public records is to give notice of the "security interest" the US. Government acquired by contract one of pledge (26 U.S.C. Sec. 6323(h)). The 26 U.S.C. Sec. 7701(a)(30) U.S. person is the person liable to perform the act of pledging their real and/or personal property upon which there is a lien under 26 U.S.C. Sec. 6321 in respect to the U.S. Government's interest in its property (its "Federal income tax") that is subject to being returned (re-delivered) to the U.S. Treasury and remains in the possession of such pledgor and is therefore subject to being seized by issuance of a "Notice of Levy" (26 U.S.C. Sec. 633 l(a)). Pursuant to 28 U.S.C. Sec. 2463 to such property is not repleviable to the U.S. person.

30. The only legitimate purpose for any State that participates in this U.S. Government revenue enhancement program to file a "Lien" as to "income tax" into county public records is to give notice of the "security interest" the State has in property of the "U.S. person" that it acquired under the U.S. Government's revenue sharing program in 4 U.S.C. Sec. 111.

31. Any Notice of Federal Tax Lien or State equivalent filed against a "nontaxpayer" (like me) is against their income and not the U.S. Government's property since there can be none in their possession when none was ever transferred to them. Therefore any Notice of Federal Tax Lien or State equivalent filed into county public records under my name is in the nature of a libel that reads like indebitatus assumsit at common law, to which no enforcement jurisdiction exists to the Commissioners of the IRS or the State taxing authorities. Hence, fraud 11 and possibly conspiracy could come into play where any enforcement occurs against the "nontaxpayers" property. I bring this up notwithstanding that the State of Florida government does not currently participate in this program.

10. 28 U.S.C. Sec. 2463. Property taken under revenue law not repleviable. All property taken or detained under any revenue law of the United States shall not be replevlable, but

shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.

11. Fraud. An intentional perversion of truth for the purpose of inducing another in reliance upon it to part · with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Any kind of artifice employed by one person to deceive another. Goldstein v. Equitable Life Assur. Soc. of U.S. 160 Misc. 364, 289 N.Y.S. 1064, 1067. A generic tenn, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated. Johnson v. McDonald, 170 Oki. 117, 39 P.2d 150. "Bad faith" and "fraud" are synonymous, and also synonyms of dishonesty, infidelity, faithlessness, perfidy, unfairness, etc. [emphasis added]

Black's Law Dictionary, Sixth Edition (1990)



IRC "nontaxpayers"

32. Courts have ruled: ". . . persons who are not taxpayers are not within the system and can obtain no benefit by following the procedures prescribed for taxpayers, ... No procedure is prescribed for nontaxpayers, and no attempt is made to annul any of their rights and remedies in due course of law. . . . Neither did the mere filing of claims for refunds make plaintiffs taxpayers when none of the requisites of the status of taxpayers were present. .. " (see, Long v Rasmussen, 281F.236 (D.Mont. 1922) and Economy Plumbing & Hearing Co. Inc. y. U.S., 470 F .2d 585, 589-590 (1972)). This makes it clear that the IRC statutes are not applicable for use as · remedy by the IRS or by me.

33. Further, Article 1, Sec. 10, Cl. 1, of the Constitution of the United States of America forbids States from passing any "law impairing the obligations of contracts." Equal protection under the law requires this same .restriction upon the U.S. Government. This constitutional requirement is violated when the IRS seeks and receives information from any source about a 11nontaxpayer" and uses such information to manufacture an IRS account which has no nexus to the "required return" of a "particular taxpayer" (i.e., a 26 U.S.C. Sec. 770l(a)(30) U.S. person). It is also violated by State taxing authorities when they seek information from the IRS under 26 U.S.C. Sec. 6103 with intent to use it to manufacture a State account which has no nexus to the "required return" by a 26 U.S.C. Sec. 7701(a)(30) U.S. person. Also, using the name of a "nontaxpayer" as the title for such account could be a form of identity theft.

Statutes and regulations confirm limited authority given to IRS Commissioner

34. The above is confirmed by the IRC laws and regulations. The U.S. Supreme Court made it clear that statutes cannot stand alone as authority for the conduct of government persons when it ruled:

"we think it important to note that the Act's civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone" ·

California Bankers Assn. y Schultz, 416 U.S. 21, 26 (1974)

Regulations having general applicability are required to be published in the Federal Register (see 44 U.S.C. Sec. 1501 et. seq.). Pursuant to Sec. 1510, a list of the location of such regulations is to be published, and has been in the Table of Authorities of the Code of Federal Regulations (CFR) Index and Finding Aids. 44 U.S.C. Sec. 1505(a) states the exception being "those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof." The CFR Index and Finding Table of Authorities list shows regulations published pursuant to 44 U.S.C. Sec. 1501 et seq. for "authority of internal revenue enforcement officers" (Sec. 7608) to"canvass of district for taxable persons" (Sec. 7601) and conduct "examination of books and witnesses" (Sec. 7602) by issuing and enforcing administrative summons (sections 7603, 7604, 7605) and then have "returns· prepared by the Secretary" (Sec. 6020) and make an assessment (sections 6201, 6203) and then use "collection authority" (Sec. 6301) by giving "notice and demand for tax" (Sec. 6303) and make "liens for taxes" (Sec. 6321) and then collect through "levy and distraint" (sections 6331-6343) the tax along with interest and penalties added (sections 6601, 6602, 6651, 6671, 6672,



6701) and institute actions in district courts of the U.S. Government per "judicial proceedings authorization" (Sec. 7401) and "judicial action to enforce lien" (Sec. 7403), or for certain criminal sanctions [i.e., "fraudulent returns (Sec. 7207) and "interference with administration of internal revenue laws" (Sec. 7212)] are ALL IN Title 27 CFR, which is only for taxable alcohol, tobacco, and firearm (A TF) activities. Those with NO SUCH PUBLISHED REGULATIONS shown are the Notice of deficiency (Sec. 6212) and Tax Court functions (sections 6213, 6214, 6215, 6902, and 7454), False Information with Respect to Withholding (Sec. 6682), Frivolous income tax return (Sec. 6702), Attempt to Evade or Defeat Tax (Sec. 7201), Willful Failure to File Return, Supply Information or Pay Tax (Sec. 7203), and Court's Jurisdiction to Enforce Summons (7402); which means these are applicable only to gross income derived from U.S. Government agencies or instrumentalities by the U.S. individual (the 26 U.S.C. Sec. 7701(a)(30)(A) U.S. person, see footnote 2). The U.S. Government has a tangible right to reclaim its property in the possession of the 26 U.S.C. Sec. 770l(a)(30) U.S. person, but has no intangible right 12 to take anyone's foreign estate or trust (26 U.S.C. Sec. 7701(a)(3 l), see footnote 3).

35. The Notice of deficiency is the IRS notice upon which the Notice of Federal Tax Lien is predicated. Please take specific notice that the regulations related to Notice of deficiency (Sec. 6212) and Tax Court functions (sections 6213, 6214, 6215, 6902, and 7454) have no regulations published pursuant to 44 U.S.C. Sec. 1501 et. seq.; meaning they are inapplicable to me or my property since I are NOT employed within any agency or instrumentality of the U.S. Government. It is a lawful, legal, and physical impossibility for me to return something never received; thus no liability as to any deficiency can exist with regard to me and my income. Necessary diligence requires this information be basic to the job training of agents of the IRS Commissioner (see footnote 7) otherwise obstruction of justice (18 U.S.C. Sec. 1503 13) comes into play and provides a cause of action.

12. "Before McNally, numerous oases construing the mail fraud and wire fraud statutes recognized two distinct types of fraud. One category included schemes which intended the deprivation of tangible economic interests, i.e., money or property. (cites omitted] The other category concerned schemes to deprive an individual or entity of intangible rights or interests, otherwise known as "fiduciary fraud" or "intangible rights fraud." [cites omitted] Strictly speaking, "intangible rights fraud" required a fiduciary relationship between the "schemer" and the party or entity defrauded; without a fiduciary obligation, there was no fraud in depriving another of an intangible benefit. After McNally, the "intangible rights11 line of cases are of

· dubious precedential value unless there was a direct deprivation of money or property .11

US y Herron, 828 F.2d SO, 54-SS (Sth Cir. 1987) McNalJy y US, 483 US 350, 97 L.Ed 2d 292, 107 S.Ct. 2875 (1987)

13. 18 U.S.C. Sec. 1503. lnftuencing or injuring officer or juror generally (a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors

to influence, intimidate, or impede any grand or petite juror, or officer in or of any court of the United States, or officer who may be service at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or ... , or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or Impedes, or endeavon to lnDuenee, obstruct, or impede, the due administration of justice, shall be punished as provided In subsection (b). ~ ..



NOTICE

36. By this affidavit all agents of the IRS Commissioner are deemed to be on NOTICE that any levy against me and my property is unlawful and illegal. Any seizure of my property cannot be a due process of law levy. Therefore performing any act of larceny can be considered intentional abuse of process on the part of agents of the IRS Commissioner and those who choose to be party thereto. With such record on notice, the Secretary's alleged delegates cannot claim immunity per the Bothke Court ruling, supra. Also, be informed:

"To lay with one hand the power of the government on the property of the citizen and with the other to bestow it on favored individuals to aid private enterprise and build up private fortunes is none the less robbery because it is done under the forms of law and is called taxation."

Loan Assoc y. Topeka. 20 Wall 6SS, 663-664 (1874)

3 7. From the above, unless and until absolute proof to the contrary is provided to me in affidavit form (to have equal weight) by someone·who is competent, or should be competent, with regard to the internal revenue laws (i.e., the IRS Commissioner and/or lawyers within the IRS, the tax division of the DOJ, or whatever entity to whom this affidavit is presented) any enforced collection of what is called "income tax" as to any beneflcial interest due to me under any private contract (i.e., a contract with any person who is not an agency or instrumentality of the U.S. Government 14) would not only make a record of collusion "accomplishing the result which the requirement as to apportionment of direct taxation was adopted to prevent" upon which "the duty would arise to disregard fonn and consider substance alone" (see the Brushaber Court quote in paqragraph 21 above), but make a record of collusion resulting in unauthorized conversion of property, a subject matter cognizable in a State court under common law only, and other violations of law (e.g., peonage).

NOTICE OF DELIVERY

38. BE IT KNOWN, the original of this affidavit is being retained by me for use as evidence should such need arise.

39. It is my intent to send a copy of this affidavit whenever I receive communications associated with "income tax" and use the failure to U.S. lawyers to make any rebuttal to this affidavit as a dishonor.

40. The sending of a copy is considered NOTICE to anyone associated directly or indirectly with the person to whom it is sent.

14. Other than the Social Security Administration with whom I contraced by mistake under the misrepresentation of requirement of law, and thereby this U.S. Government agency has an account that identifies my property in its possession.

Memorandum of Law & Revocation of Signature on IRS Forms Page IS of 16

&.""-~ ~. 1 A


· The foregoing affidavit titled MEMORANDUM identifying property subject to internal revenue laws and "the person .liable" therefor,· and REVOCATION of SIGNATURE on IRS FORMS is said by me to be true and correct to the best. of my knowledge and belief, and done with the best of intentions.

Thomas William Harter 8637 S.W. 108th Lane Road Ocala, Florida 34481

;-~ On this j 0 day of September, 2004, the foregoing was sworn to and subscribed

before me by Thomas William Harter, proven to me to be this man by satisfactory evidence.

y commission expires:

Memorandum of Law & Revocation ·of Signature on IRS Fonns Page 16of16


Case styled:

EXHIBIT B TO

Darter's JURISDICTIONAL CHALLENGE; REJECTION TO ALLEGED CONVICTION; OFFICIAL MISCONDUCT CHARGE; and


FILED IN THE MATTER OF


OCALA DIVISION

UNITED STATES OF AMERICA CASE NO. 5: 13-cr-26-0c-22PRL

v.

THOMAS W. HARTER


Thomas William Harter dba Doctor Harter & Associates

8602 SW State Road 200, Suite P Ocala, Florida 34481

Certified Mail 7CC l I.I. L.\C Coe~ S'-P'""Lf ;,.tf{~ Date mailed t'~ ,1v\ C\.'( 'l' b To: Margrit Domeisen, Internal Revenue Agent, Employee ID #59-00902

And supervisor, David Capps Department of the Treasury Internal Revenue Service 3300 S. W. 34th A venue, Suite 152 Ocala, FL 34474

Certified Mail 7CC: \ \\'-\0 COD it )t:(i'-i '- 3a !> Date mailed t 6 J'v\c"'f t· b To: Dennis Parizek, Operations Mgr. Exam SC Support, Employee ID #29-61699

Department of the Treasury Internal Revenue Service 1973 North Rulon White Blvd. Ogden, UT 84404-0040

Certified Mail -;a.: ' \ l l..\O CC t '1 1'1~ 4 :t '-\ \ q Date mailed l ! _....,\ °'". le 6 To: Mark W. Everson, Commissioner

Department of the Treasury Internal Revenue Service 1111 Constitution A venue, NW Washington, D.C. 20224

Certified Mail 7Cl ~ \ \ 4:.: C cc '-\ ~ '71'1 2 s .·A 7 To: Senator Bill Nelson

United States Senate 716 Senate Hart Office Building Washington, DC 20510

Certified Mail 7<-~l {I lie CCC'-( ) '-(YI.( 2. ~ 3j To: Senator Mel Martinez

317 HART SENATE OFFICE BUILDING WASHINGTON DC 20510

Certified Mail 7CC\ \\ "\() CCC Y 3 q ?4 2 ~ 4 \ To: Representative Cliff Stearns

2370 Rayburn HOB Washington, DC 20515-0906

Date mailed \ "8' .. '-\ c\ 'f '() 6

Date mailed i 0- )v\°''l ·a b

Date mailed ~ #\(,\.I !~ ~

NOTICE-Revenue Agents operating outside the law

REQUEST-rebuttal to the evidence I present or correction of their conduct

Notice & Request based upon Facts & Merits in Affidavits Page 1of15


Florida State ) ) SS

) AFFIDAVIT OF FACTS & MERITS

Marion County

I, Thomas William Harter, a man over the age of majority and of sound mind, and having first hand knowledge of the facts stated herein, hereby say that the following is true and correct to the best of my knowledge and belief, materially complete, not misleading, the truth, the whole truth and nothing but the truth.

I. The purpose and intent of this affidavit is to provide evidence of the arbitrary application of the United States (U.S.) Goverrunent's internal revenue laws codified into the Internal Revenue Code (IRC or 26 U.S.C.) subtitle A and F statutes in a way that results in direct taxation that is not apportioned, and thereby in violation of the Constitution, and compelled forfeiture of one's income under color of official right, thus is within the definition of"scheme or artifice to defraud" in 18 U.S.C. § 1346. 1

" ... in whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect."

Henderson et al v. Mayor ofN.Y. et al., 92 U.S. 259, 268 The evidence in this affidavit goes to the merits 2 of the matter. If not contradicted then this affidavit becomes prima facie evidence of truth in commerce and fact in law.

2. I believe Margrit Domeisen and her supervisor, David Capps, are agents/employees of the Commissioner of the Department of the Treasury Internal Revenue Service (IRS).3 Mr.

1. 18 U.S.C. § 1346. Definition of "scheme or artifice to defraud" For purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to

deprive another of the intangible right of honest services.

2. Merits. The word "merit" as a legal tenn is to be regarded as referring to the strict legal rights of the parties. Mink v. Keim, 266 App.Div. 184, 41N.Y.S.2d769, 771. The substance, elements, or grounds of a cause of action or defense. See Judgment on the merits.

Black's Law Dictionary, Sixth Edition (1990)

MERITS. In practice. Matter of substance in law, as distinguished from matter of mere form; a substantial ground of defense in law. A defendant is said "to swear to merits" or "to make affidavit of merits" when he makes affidavit that he has a good and sufficient or substantial defense to the action on the merits. 3 Chit. Gen. Pr. 543, 544. "Merits," in this application of it, has the technical sense of merits in law, and is not confined to a strictly moral and conscientious defense. Id. 545; I Burrill, Pr. 214; Rahn v. Gunnison, 12 Wis. 529; Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357; Ordway v. Boston & M.R. Co., 69 N.H. 429, 45 A. 243; Blakely v. Frazier, I I S.C. I34; Rogers v. Rogers, 37 W. Va. 407, I6 s.E. 633; Oatman v. Bond, 15 Wis. 26.

A "defense upon the merits" is one which depends upon the inherent justice of the defendant's contention, as shown by the substantial facts of the case, as distinguished from one which rests upon technical objections or some collateral matter. Thus there may be a good defense growing out of an error in the plaintiffs pleadings, but there is not a defense upon the merits unless the real nature of the transaction in controversy shows the defendant to be in the right.

Black's Law Dictionary, Third Edition (1933)

3. On next page.

Notice & Request based upon Facts & Merits in Affidavits Page2of15

Case 5:13-cr-00026-PRL Document 89 Filed 10/10/13 of 65 PageID 1013I •

Everson, as IRS Commissioner you are responsible for seeing that their job training instructs them as to precisely what persons and things are within IRC subtitle A and F statutes to insure that they do not operate based upon common belief or policy in a way that exceeds the authority given by law to the office of IRS Commissioner because, when they do, the following U.S. Supreme Court ruling becomes applicable.

"Moreover, in addition, the conclusion reached in the Pollock Case did not in any degree involve holding recognized the fact that taxation on income was in its nature an excise entitled to be enforced as such unless and until it was concluded that to enforce it would amount to accomplishing the result which the requirement as to apportionment of direct taxation was adopted to prevent, in which case the duty would arise to disregard form and consider substance alone, and hence subject the tax to the regulation as to apportionment which otherwise as an excise would not apply to it"

Brushaber v. Union Pacific Railroad Co., 240 U.S. l, 16-17 (1915)

3. This matter is brought to your attention Messrs. Nelson, Martinez, and Stearns because members of Congress have a responsibility to see that enacted laws of the U.S. Government are not vague, for "Vague laws give public servants opportunities to apply the law arbitrarily, with favoritism, and with invidious discrimination, as they please." Oregon Box & Mfg. Co. v, Jones Lumber Co., 117 OR. 441, 224 P. 313 (1926). The fact that the laws in IRC subtitle A and F have become more complex and convoluted through the years has made it possible to misrepresent the strict application of these statutes in a way that results in the IRS Commissioner and his agents accomplishing an unauthorized conversion of property under color of official right.

Thirty (30) days to rebut or admit by DEFAULT

4. Each one of you is either a lawyer or has access to a government staff of lawyers, hence should be able to personally provide a rebuttal to the evidence in this affidavit or see that someone competent in law does so. You are all provided thirty (30) days to prove the evidence in this affidavit lacks merit. A DEFAULT by silence is deemed on record where no rebuttal is timely provided to me and placed into the IRS system of records. Upon such DEF AULT the law and justice requires that the IRS system of records indicate that neither I nor the private entities I have created are subject to IRC statutes, and that harassment by agents of the IRS Commissioner ceases. Messrs. Everson, Nelson, Martinez, and Steams, I believe each of you has the ability, power, and authority to tend to this matter and prevent intentional injury to me through fraudulent acts of Ms. Domeisen and Mr. Capps, or other agents of the IRS Commissioner.

"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 conduct by the IRS. Our revenue system is based on the good faith of the taxpayers and the taxpayers should be

3. Sec. 4000. Appointment. 1939 IRC [now 26 U.S.C. § 7803(a)] The Commissioner may, whenever in his judgment the necessities of the service so require, employ competent agents, who shall be known and designated as internal revenue agents, and, except as provided for in this title, no general or special agent or inspector of the Treasury Department in connection with internal revenue, by whatever designation he may be known, shall be appointed, commissioned, or employed. (Does this not say that the IRS Commissioner can hire whomever he needs to help him do his job, but they are not considered employed by the U.S. Government?]



able to expect the same from the government in its enforcement and collection activities. During oral argument counsel for the government stated that these procedures were "routine." If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is the "routine" it should be corrected immediately."

U.S. v. Tweel, 550 F.2d297, 299-300 (1977)

SUBSTANTIVE FACTS & LAWS

5. I am a man schooled in dentistry currently dba Doctor Harter and Associates. I formerly operated a private business under the names Belmont Dental, PA and Dental Opportunities, PA. At no time have I or these private entities derived salary or wages as defined in IRC § 340l(a) or other income from sources within the U.S. Government for the fact that my conduct, and that of these entities, is not, and never has been, effectively connected with a trade or business within an agency or instrumentality of the U.S. Government Hence any income to me through these or any other private entity I created (e.g., investment accounts) falls within the meaning of:

26 U.S.C. § 7701(a)(31) Foreign estate or trust. [2000 Edition] (A) Foreign estate

The tenn "foreign estate" means an estate the income of which, from sources without the United States which is not effectively connected with the conduct of a trade or business within the United States, is not includible in gross income under subtitle A. (B) Foreign trust

The tenn "foreign trust" means any trust other than a trust described in subparagraph (E) of paragraph (30).

When, through studies, I came to realize this fact, I stopped making the IRS forms as to my personal income, but continued to make such forms with regard to deductions made to the income (exchange of$ for labor) of people working for my private entities at their request, notwithstanding that they were not in possession of any "wages" as defined in IRC § 340l(a). Accurate reports and submission of all deductions made in their behalf were sent to the IRS.

6. Margrit Domeisen, a revenue agent of IRS Commissioner Everson, was put on NOTICE of the lawful and legal limits to the use of IRC laws when, on 9/10/2004, I sent to her a letter with my MEMORANDUM OF LAW (made an integral part of this affidavit by reference; a copy is attached hereto as filed into Marion County Florida, public records) in response to her proposed meeting with me on 9/14/2004 to obtain information about my personal income as to years 2000, 2001, 2002, and 2003, and that same day sent to her my NOTICE with MEMORANDUM OF LAW in response to the meeting she scheduled for 10/7 /2004 about the IRS Letter 3798 sent to Belmont Dental PA and Tax form 11208 for years 2001, 2002, and 2003. She was asked to have lawyers assigned to that IRS office make a rebuttal thereto. Instead, she has continued to harass me, and persons with whom I do business, with IRS writings containing threats and demands, the most recent being IRS Form 4564 to Dental Opportunities, PA, asking for copies of prior filed tax returns Form 1120 for years 1995, 1996 and 1997, and infonnation for years 2001, 2002, and 2003. The evidence in this and my attached MEMORANDUM OF LAW goes to prove that such conduct falls within the meaning of "scheme or artifice to defraud" (footnote 1) and violates many laws enacted by Congress.

7. I believe where the IRC statutes do not apply to me or the entities I create to transact personal business then any IRS writings sent are offers made personally by the sender that I have a right to refuse to accept, and that any enforcement that results in conversion of my property


~-1-"' ,, ~ l'r o


under color of official right constitutes solicitation to commit a crime of violence 4 and results in violation of many of the acts defined by Congress as "racketeering activity. "5

8. Among acts that Congress declares to be "racketeering activity" is "peonage"-the prohibited condition of involuntary servitude made manifest when someone is compelled to labor for others against their will. All income I derive is directly or indirectly derived from my labor.

4. 18 U.S.C. § 373. Solicitation to commit a crime of violence (a) Whoever, with intent that another person engage in conduct constituting a felony that has an

element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborated of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment of (notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death shall be imprisoned for not more than twenty years.

(b) It is an affirmative defense to a prosecution under this section that, under circumstances manifestly a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a preponderance of the evidence.

( c) It is not a defense to a prosecution under this section that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.

18 U.S.C. § 16. Crime of violence defined The tenn "crime of violence" means. -

(a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

5. 18 U.S.C. § 1961. Definitions (2000 Edition] As used in this chapter -

(I) "racketeering activity" means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, or dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: section 201 (relating to bribery), .. ., sections 891-894 (relating to extortionate credit transactions), section 1028 (relating to fraud and related activity in connection with identification documents), section 1029 (relating to fraud and related activity in connection with access devices), ... , section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to financial institution fraud), ••• , section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), ... ; sections 1581-1588 (relating to peonage and slaverv), section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section ...



As ruled by the U.S. Supreme Court: "The words involuntary servitude have a 'larger meaning than slavery.' ... The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit which is the essence of involuntary servitude."

Bailey v. Alabama, 219 U.S. 219, 241 {1910) I made myself a peon by my prior filing of IRS forms done due to falsely propagandizing the IRC subtitle A statutes as being applicable to all income. My income sent therewith was accepted as a gift for the use of the U.S. Government; see 31U.S.C.§32l(d). Unless it is proven that IRC subtitle A statutes impose a tax upon income, for which IRC subtitle F pennits enforcement, then any exaction of my property by employees of the IRS Commissioner, whether through the personal business entities I create or otherwise, has the result to return me to a condition of peonage. "What is peonage" was explained by the U.S. Supreme Court.

"The constitutionality and scope of sections 1990 and 5526 present the first questions for our consideration. They prohibit peonage. What is peonage? It may be defined as a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness. As said by Judge Benedict, delivering the opinion in Jaremil/o v. Romero, 1 N. Mex. 190, 194: 'One fact existed universally; all were indebted to their masters. This was the cord by which they seemed bound to their masters' service.' Upon this is based a condition of compulsory service. Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of bis creditor. The other is forced upon the debtor by some provision of Jaw. But peonage, however, created, is compulsory service, involuntary servitude. The peon can release himself therefrom it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary perfonnance of labor or rendering of services in payment of a debt. In the latter case the debtor, though contracting to pay his indebtedness by labor or service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service."

Bailey v. Alabama, 219 U.S. 219, 242-243 (1910)

9. Where the IRC statutes cannot be proven to apply to my income then the debt that agents of the IRS Commissioner have created and placed into an account bearing my name, without my permission, becomes a common law matter. As can be seen from the above Bailey Court ruling, if the U.S. Government or its IRS are injured by my not making them party to my private contracts, employment or otherwise, then the remedy to them is through a common law action for damages based upon a claim and proof of injury; preserved by the 7th Amendment and through Rule 38(a) of the Federal Rules of Civil Procedure.

Rule 38. Jury Trial of Right. (a) RIGHT PRESERVED. The right of trial by jury as declared by the Seventh Amendment to the

Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.

SEVENTH AMENDMENT In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

10. Where the IRC statutes cannot be proven to apply to one's income then the IRC statutes are being enforced based upon statutory presumptions.

"It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions. And the State may not in this way


pl(~~~(I \3


interfere with matters withdrawn from its authority by the Federal Constitution or subject an accused to conviction for conduct which it is powerless to proscribe."

Bailey v. Alabama, 219 U.S. 219, 239 (1910) The Constitution requires direct taxation to be apportioned. The U.S. Supreme Court described indirect and direct taxation in the ruling:

"Ordinarily, all taxes paid primarily by persons who can shift the burden upon someone else, or who are under no legal compulsion to pay them, are considered indirect taxes; but a tax upon property holders in respect of their estates, whether real or personal, or of the income yielded by such estates, and the payment of which cannot be avoided, are direct taxes."

Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 558 (1895) If the IRC subtitle A statutes were a tax upon one's income, or estate created thereby, the laws would be in direct violation of the constitutional mandate with regard to direct taxation. Surely Congress would not enact laws knowing they are not authorized by the Constitution. Wherefore, logic dictates that the IRC subtitle A statutes do not impose a tax upon income. Studies of the laws, regulations, and U.S. Supreme Court rulings support this conclusion; some of which is presented in my MEMORANDUM OF LAW attached and made an integral part of this affidavit. In brief, the IRC subtitle A statutes impose a duty to return to the U.S. Government the portion of its property transferred into the possession of men and women working within agencies or instrumentalities of the U.S. Government that such "an individual" cannot retain depending upon the deductions applicable to them under law. In Williston on Contracts, Section 1040, such an

6. In this contract, one ofbailment for mutual benefit, the employee and the U.S. Government (the employer) benefit. The employee benefits in that there is an increase in their take home pay based upon deduction benefits when their deduction increase so does their take home pay increase. This is automatic with the filing ofa Form 1040 by April 15th for the previous years gross income. The U.S. Government benefits upon the fact that such increase in take home pay is adjustable automatically, thus reducing the cost of renegotiating employment contracts of is employees. With their contract one ofbailment in place all employees within the U.S. Government are treated uniformly.

7. 26 U.S.C. § 6331 Levy and distraint [2000 Edition] (a) Authority of the Secretary.

If any person liable to pay any tax neglects or refuses to pay the same within I 0 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses ofthe levy) by levy upon all property and rights to property (except such property exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 340l(d)) of such officer, employee, or elected official. ...

26 CFR § 404.6334(d)-l Minimum exemption from levy for wages, salary, or other income. (a) In general. Under section 6331(a), if an individual liable for any tax neglects or refuses to pay

such tax within 10 days after notice and demand, the tax may be collected by levy upon property or rights to property belonging to such individual, including amounts payable to or received by him as wages, salary, or other income. Under section 633 l(d)(3), a levy upon wages or salary is continuous from the date the levy is first made until the liability giving rise to the levy is satisfied or becomes unenforceable by reason of lapse of time. Under section 6334(a)(9), however, certain amounts payable to or received by an individual as wages or salary for personal services, or as income from other sources are exempt from levy. . .• "


f=¥"'-' ~ \l- B


arrangement is called a contract one ofbailment for mutual benefit.6 The IRS Form 1040, U.S. Individual Income Tax Return, is prescribed for making the accounting of the gross income and the deductions and exemptions varying with family relations, and arrive at "Amount you owe"the sum to be returned, which is a debt and becomes a statutory lien in favor of the U.S. Government (IRC § 6321 ). The statutes in IRC subtitle F provide authority for the recaption of the U.S. Government's property in the possession of such "an individual"; also referred to in the IRC as ''taxpayer" and "person liable." However, the "income" (exchange of$ for labor) portion of gross income, and the portion of the U.S. Government's property bailed to them that they are entitled to retain, and income from other sources, is exempt from levy under 26 U.S.C. § 633 l(a) and regulation 26 CFR 404.6334(d)-l(a)7; which, like anyone's "income," falls under "foreign estate or trust" (see paragraph 5).

11. As seen by IRC § 770l(a)(3l)(A) [quoted in paragraph 5], Congress established only "income" from sources that are effectively connected with a trade or business within the U.S. Government 8 (i.e., an agency or instrumentality of the U.S. Government). As seen by IRC § 770l(a)(3 l)(B), a "foreign trust" is one that is "other than a trust described in subparagraph (E) of paragraph (30)."

26 U.S.C. § 7701(a)(30) United States person. [2000 Edition] The tenn "United States person" means_

(A) a citizen or resident of the United States, (B) a domestic partnership, (C) a domestic corporation, (D) any estate (other than a foreign estate, within the meaning of section 770 l(a){3 I)), and (E) any trust if --

(i) a court within the United States is able to exercise primary supervision over the administration of the trust, and

(ii) one or more United States persons have the authority to control all substantial decisions of the trust.

The term "ejusdem generis" is controlling here; meaning the "United States person" in 26 U.S.C. § 770l(a)(30) (A), (B), (C), (D), and (E) are all in the same kind or class; (A) being human beings who are citizens of the U.S. Government by virtue of the fact that they employ their labor on a full time basis, or are resident in office within the U.S. Government by appointment or election.; (B) and (C) being entities created under U.S. Government laws (e.g., the many agencies or instrumentalities, some of which are incorporated; and (D) and (E) being estates or trusts created by and for U.S. person (A), (B), or (C) and thus could have property of the U.S. Government in their possession that is subject to return (re-delivery) to the U.S. Government. The "United States person" IRC § 7701(a)(30)(E) trust is one over which the district court of the U.S. Government has authority to provide its ruling in respect to the amount of property possessed by the U.S. Government that is in the possession of the "United States person" and subject therefore to recaption under IRC subtitle F. IRC levy authority only extends to the

8. Congress clarifies it where a U.S.C. statute is used in a geographical sense. For example in 26 U.S.C. § 6103, Confidentiality and disclosure of returns and return infonnation, (d) definitions, (5) The term "State" means -- (A) any of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Canal Zone, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Also, the IRC definition for "trade or business" in 26 U.S.C. § 7701(a)(26) reads: "The tenn "trade or business" includes the perfonnance of the functions ofa public office."

Notice & Request based upon Facts & Merits in Affidavits Page 8 ofl5


return obligation with respect to property possessed by the U.S. Government. 9 Such property is considered to be in the custody of the law, hence not repleviable when taken or detained under IRC statutes. 10 Property taken under IRC statutory authority that is not possessed by the U.S. Government is a talcing of property that violates the 5th Amendment to the Constitution. 11

12. The limitations to what is and what is not includible in gross income under IRC subtitle A to persons in an employment contract within the U.S. Government is confinned by IRC chapter 24, Collection of income tax at source, IRC § 3401 et. seq. In IRC § 340l(a) 12 Congress defined "wages" to mean remuneration other than "fees" and specifically excluded remuneration paid for services for an employer other than the U.S. Goverrunent or any of its agencies. Looking to Black's Law Dictionary, Fifth Edition, the word "fee" is defined as "A charge fixed by law for services of public officers or for use of a privilege under control of government."

13. Limits to the use ofIRC subtitle F statutory authority in the exercise of the U.S. Government's remedy ofrecaption of property possessed by the U.S. Government is confirmed by IRC statutes and regulations. The U.S. Supreme Court made it clear that statutes cannot stand alone as authority for the conduct of government persons when it ruled:

"we think it important to note that the Act's civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone"

California Bankers Assn. v. Schultz, 416 U.S. 21, 26 (1974)

9. 26 U.S.C. § 6331 Levy and distraint (2000 Edition] (b) Seizure and sale of property

The tenn "levy" as used in this title includes the power of distraint and seizure by any means. Except as otherwise provided in subsection (e), a levy shall extend only to property possessed and obligations existing at the time thereof. . ..

10. 28 U.S.C. § 2463. Property taken under revenue law not repleviable. All property taken or detained under any revenue law of the United States shall not be repleviable, but

shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.

11. CFR 601.106(f)(l) "Rule I. An exaction by the U.S. Government, which is not based upon law, statutory or otherwise, is a taking of property without due process oflaw, in violation of the Fifth Amendment.

12. 26 U.S.C. § 3401. Definitions. (a) Wages. For purposes of this chapter, the term "wages" means all remuneration (other than fees

paid to a public official) for services performed by an employee for his employer, including the cash value of all remunerations paid in any medium other than cash; except that such term shall not include remuneration paid --(8) (A) for services for an employer (other than the United States or any agency thereof) --

[same in 8(B) and (C)] (c) Employee. For purposes of this chapter, the term "employee" includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term "employee" also includes an officer of a corporation. (d) Employer. For purposes of this chapter, the term "employer" means the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person.


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Regulations having general applicability are required to be published in the Federal Register (see 44 U.S.C. § 1501 et. seq.). Pursuant to 44 U.S.C. § 1510, a list of the location of such regulations is to be published-and has been in the Table of Authorities of the Code of Federal Regulations (CFR) Index and Finding Aids. 44 U.S.C. § 1505(a) states the exception being "those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees thereof" (which, if published, are published pursuant to 5 U.S.C. §301; Title 5 being Government Organization and Employees). The CFR Index and Finding Aids list shows the regulations published pursuant to 44 U.S.C. § 1501 et seq. for "authority of internal revenue enforcement officers" (IRC § 7608) to "canvass of district for taxable persons" (IRC § 7601) and conduct "examination of books and witnesses" (IRC § 7602) by issuing and enforcing administrative summons (IRC §§ 7603, 7604, 7605) and then have "returns prepared by the Secretary" (IRC § 6020) and make an assessment (IRC §§ 6201, 6203) and then use "collection authority" (IRC § 6301) by giving "notice and demand for tax" (IRC § 6303) and make "liens for taxes" (IRC § 6321) and then collect through "levy and distraint" (IRC §§ 6331-6343) the tax along with interest and penalties added (IRC §§ 660 l, 6602, 6651, 6671, 6672, 6701) and institute actions in district courts of the U.S. Government per "judicial proceedings authorization" (IRC § 7401) and ']udicial action to enforce lien" (IRC § 7403), or for certain criminal sanctions [i.e., "fraudulent returns (IRC §7207) and "interference with administration of internal revenue laws" (IRC § 7212)] are ALL in Title 27 CFR, which is only for taxable alcohol, tobacco, and firearm (ATF) activities.

14. Regulations that apply only to enforcement of IRC subtitle A statutes are not on that CFR Index and Finding Aids list. For example, Notice of deficiency (IRC § 6212) and Tax Court functions (IRC §§ 6213, 6214, 6215, 6902, and 7454), False Information with Respect to Withholding (IRC § 6682), Frivolous income tax return (IRC § 6702), Attempt to Evade or Defeat Tax (IRC § 7201), Willful Failure to File Return, Supply Infonnation or Pay Tax (IRC § 7203), and Court's Jurisdiction to Enforce Summons (IRC § 7402). Regulations for these statutes that have been published are in 26 CFR Part 301, specifically stated in the preface to Table I-Parallel Table of Authorities and Rules to be excluded from the list. Such published regulations are not shown to be published under authority of the statute, but under authority of Treasury Decisions-which is provided by 5 U.S.C. § 301, for government agencies and employees.

Summation

15. Though additional facts in law exist, I believe the foregoing and others in my attached MEMORANDUM OF LAW establish: (a) that Congress did not impose a tax upon income; (b) that the IRC subtitle A statutes are part of a bailment for mutual benefit program between the U.S. Government and human beings employed within an agency or instrumentality of the U.S. Government-i.e, the IRC § 770l(a)(30)(A) United States person; (c) that this bailment program creates an obligation for such United States person to make a return of the U.S. Government's property transferred into their possession that they are not under IRC subtitle A and F law permitted to retain; (d) that IRC subtitle F statutes provide authority to the IRS for recaption of property possessed by the U.S. Government though in the possession of such United States persons;

Notice & Request based upon Facts & Merits in Affidavits Page IO of 15

F'f-~,\~1


( e) that the ''total amount due" to be returned becomes a statutory lien in favor of the U.S. Government; (f) that a Notice of Federal Tax Lien filed into county public records is a notice of the U.S. Government secwity interest it has in its own property in the possession of a particular employee of the U.S. Government; (g) that when a proper sum is not returned by such United States person via the Form 1040 prescribed therefore then the IRS Commissioner has authority to issue a levy upon their accrued salary or wages by way of notice to the employer (defined in IRC § 340l(d)) of such officer, employee, or elected official of an agency or instrumentality of the U.S. Government (IRC § 633 l(a), footnote 7), and (h) that income from sources not effectively connected with a trade or business within an agency or instrumentality of the U.S. Government is foreign to the U.S. Government and NOT includible in gross income under IRC subtitle A (see paragraph 5), which means IRC subtitle F statutes are inapplicable and any permitted acts by agents of the IRS Commissioner that result in a taking of such personal property violates many statutory and common laws; (i) that applying IRC subtitle Flaws on one's income foreign to the U.S. Government constitutes a "scheme or artifice to deprive another of the intangible right of honest services (see footnote 1) and falls within frauds and swindles in 18 U.S.C. § 1341 (quoted below).

Duty of the Government and its officers

16. Mr. Everson, you are under a duty to see that your agents do not act oppressively and arbitrarily in the performance of the authority provided to the office of IRS Commissioner.

Official powers cannot be extended beyond the terms and necessary implications of the grant. If broader powers be desirable, they must be conferred by Congress. They cannot be merely assumed by administrative officers; nor can they be created by the courts in the proper exercise of their judicial functions,"

Federal Trade Commission v. Raladam Co., 283 U.S. 643, 649; 51S.Ct.587 {1931)

Arbitrary power and the rule of the Constitution cannot both exist. They are antagonistic and incompatible forces; and one or the other must of necessity perish whenever they are brought into conflict To borrow the words of Mr. Justice Day, "there is no place in our constitutional system for the exercise of arbitrary power." Garfield v. U.S. ex. rel. Goldsby, 211 U.S. 249, 262, 29 S.Ct. 62, 66, 53 L.Ed. 168. To escape assumptions of such power on the part of the three primary departments of the government, is not enough. Our institutions must be kept free from the appropriation of unauthorized power by lesser agencies as well. And if the various administrative bureaus and commissions, necessarily called and being called into existence by the increasing complexities of our modem business and political affairs, are permitted gradually to extend their powers by encroachments .. even petty encroachments .. upon the fundamental rights, privileges and immunities of the people, we shall in the end, while avoiding the fatal consequences ofa supreme autocracy, become, submerged by a multitude of minor invasions of personal rights, less destructive but no less violative of constitutional guaranties.

Jones v. Securities and Exchange Commission, 298 U.S. 1, 24-25 {1936)

"It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions. And the State may not in this way interfere with matters withdrawn from its authority by the Federal Constitution or subject an accused to conviction for conduct which it is powerless to proscribe."

Bailey v. Alabama, 219 U.S. 219, 239 (1910) By the evidence I have presented, your agents sending of IRS writings making demands and threats to me personally and to the private entities I have created to conduct business in the

Notice & Request based upon Facts & Merits in Affidavits


commercial world constitute arbitrary acts, and any exaction of my property based thereon result in violation of prohibitions of the Constitution in that such acts result in direct taxation that is not apportioned and the intended result is to return me to a prohibited condition of involuntary servitude-peonage (see 42 U.S.C. § 1994 and 18 U.S.C. § 1581). Where you, Mr. Everson, have failed to see that your agents are properly instructed NOT to use IRS process and procedures upon income foreign to the U.S. Government then I believe your conduct constitutes:

18 U.S.C. § 373. Solicitation to commit a crime of violence (a) Whoever, with intent that another person engage in conduct constituting a felony that has an

element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborated of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment of(notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death shall be imprisoned for not more than twenty years.

(b) It is an affirmative defense to a prosecution under this section that, under circumstances manifestly a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a preponderance or the evidence.

(c) It is not a defense to a prosecution under this section that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.

And since such acts are done via the United States Postal Service (U.S.P.S.) they also constitute violation of:

18 U.S.C. § 1341. Frauds and swindles [2000 Edition] Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining

money or property by means of false or fraudulent pretenses, representation, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $100,000 or imprisoned not more than thirty years, or both.

Such acts by your agents also has the result to interfere with my right to employ my skills in any lawful endeavor without interference by government.

It is clear, however, that the Legislature and the people may not choose to deny a fundamental constitutional right as a means of collecting revenue."

United States v. State of Texas, 252 F.Supp. 234, 254; relying on Texas v. U.S., 384 U.S. 1383 (1966).

The right to follow any of the common occupations of life is an inalienable right. It was formulated as such under the phrase 'pursuit of happiness' in the Declaration of Independence."

Allgeyer v. State of Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832 (1897) Hotel, et al. v. Longley, et aJ., 160 S.W.2d 124, 127 (1942).


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"Included in the right of personal liberty and the right of private property - partaking of the nature of each -- is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property."

Coppage v. Kansas, 236 U.S. l, 14 (1915).

11The property which every man has in his own labor, as it is the original foundation for all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property."

Butchers Union Co. v. Crescent City Co., 111 U.S. 764.

"We also think the right to work is one of the most precious liberties that man possesses. Man has as much right to work as he has to live, to be free, to own property, or to join a church of his own choice for without freedom to work the others would soon disappear. It is a fundamental human right which the due process clause of the Fifth Amendment protects from improper infringement by the federal government. To work for a living in the occupations available in a community is the very essence of personal freedom and opportunity that it was one of the purposes of these amendments to make secure. Liberty means more than freedom from servitude. The constitutional guarantees are our assurance that the citizen will be protected in the right to use his powers of mind and body in any lawful calling."

Referenced from Smith v. State ofTexas, 233 U.S. 630 (1913) in Hanson v. U.P.RR. Co., 71N.W.526, 546 (1955).

"Constitutional rights would be of little value if they could be ... indirectly denied" Smith v. Allwright, 321U.S.649, 664. " ... or 'manipulated out of existence' " Gomillion v. Lightfoot, 364 U.S. 339, 345.

Since the IRS writings sent to me and to the private entities I created contain threats of violence intended to accomplish a conversion of my interest in my income over to the IRS, such acts fall within:

18 U.S.C. § 1951. Interference with commerce by threats or violence (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any

article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

(b) As used in this section-(!) The tenn "robbery" means the unlawful taking or obtaining of personal property from the

person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

(2) The tenn "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

(3) The tenn "commerce" means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.

(c) This section shall not be construed to repeal, modify or affect section 17 of Title IS, sections 52, 101-115, 151-166 ofTitle 29 or sections 151-188 ofTitle 45.

[NOTE: in 15 U.S.C. § 17, Congress declared: "The labor of a human being is not a commodity or article of commerce."]


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17. As I understand it, the three branches of government were set up as means to provide checks and balances where any branch exceeds the powers granted by the Constitution. Messrs. Nelson, Martinez, and Steams, as lawmakers you know, or should know, that enforcing the IRC subtitle A and F statutes upon one's income cannot be in keeping with the powers granted by the Constitution or by Congress. I believe that you have a duty to put a stop to the IRS Commissioner using the IRC statutes oppressively with intent that a scheme or artifice to defraud will have the result to return me to a prohibited condition of peonage.

Scheme or artifice to defraud. For purposes of fraudulent representation statutes, consists of forming plan or devising some trick to perpetrate fraud upon another. State v. Smith, 121 Ariz. 106, 588 P.2d 848. Such connotes a plain or pattern of conduct which is intended to or is reasonably calculated to deceive persons of ordinary prudence or comprehension. U.S. v. Washita Const. Co., C.A.Okl., 789 F.2d 809, 817. "Scheme to defraud" within meaning of mail fraud statute (18 U.S.C.A. § 1341) is the intentional use of false or fraudulent representationf for the purpose of gaining a valuable undue advantage or working some injury to something of value held by another. U.S. v. Mandel, D.C.Md., 415 F.Supp. 997, 1005. See also Artifice; Fraud; Mail fraud.

Black's Law Dictionary, Sixth Edition (1990) To do otherwise would place you in jeopardy of conspiring with the IRS Commissioner and his agents, who have been informed of their oppressive 13 acts, to injure me.

18 U.S.C. § 241. Conspiracy against rights of citizens (2000 Edition] If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen of the free exercise

or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured-

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kiII, they shalI be fined under this title or imprisoned for any tenn of years or for life, or both, or may be sentenced to death.

18 U.S.C. Sec. 242. Deprivation of rights under color of law [2000 Edition] Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any

inhabitant of any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or Jaws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for a term of years or for life, or both, or may be sentenced to death.

13. oppression. 1. The act or an instance of unjustly exercising authority or power. 2. An offense consisting in the abuse of discretionary authority by a public officer who has an improper motive, as a result of which a person is injured. • The offense does not include extortion, which is typically a more serious crime. 3. Contracts. Coercion to enter into an illegal contract. • Oppression is grounds for the recovery of money paid or property transferred under an illegal contract. See DURESS, UNCONSCIONABILITY. 4. Corporations. Unfair treatment of minority shareholders (esp. in a close corporation) by the directors or those in control of the corporation. See FREEZE-OUT. - Also tenned (in sense 4) shareholder oppression. - oppress, vb. - oppressive, adj.

Black's Law Dictionary, Seventh Edition ( 1999)



18. IRS form letters, like Letter 3175C dated 3/13/2006 from Operations Manager Dennis L. Parizek that purports to be "in reply to your recent correspondence dated 5/19/2005" , state "Federal courts have consistently ruled against such arguments and imposed significant fines for taking such frivolous positions." Notwithstanding that the fact that I sent nothing to the IRS on, or within months of 511912005, and that this is the first communication from anyone at the IRS Ogden, UT, office, I have not found any court case that addresses the matters I have presented. Each of you has thirty (30) days to cite such court case and rebut the evidence in this affidavit and my attached MEMORANDUM OF LAW or make a record by DEFAULT that there is no rebuttal possible to the evidence because it is all correct in law.

19. Upon such DEFAULT the law, justice, and necessary diligence requires that you, Commissioner Everson, see that the IRS system of records is corrected to contain the fact that neither I nor the entities I have created are subject to IRC statutes, and that your agents are to immediately cease sending any IRS writings with regard to these IRS colorable accounts.

20. BE IT KNOWN, the original of this affidavit is being retained by me for use as evidence should such need arise. Exact copies are being mailed as shown on page I .

Rule 902. Self-authentication Federal Rules of Evidence Extrinsic evidence of authenticity as to condition precedent to admissibility is not required with respect

to the following: (8) Acknowledged documents.-Documents accompanied by a certificate of acknowledgment

executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

The foregoing is said by me to be true and correct to the best of my knowledge and belief, and done with reservation of all rights.

Date / 7 /i'l C\\/ ).{_) { t I

'· I . ' '· /, /. ' ~ / . " . ~

By: '-,L! ~= c ~ai.,, =\ -::-- ..,

Thomas William Harter 8602 SW State Road 200, Suite P Ocala, Florida 34481

On this .17 day of May, 2006, the foregoing was sworn to and subscribed before me by Thomas William Harter, proven to me to be this man by satisfactory evidence.

·--· ommission expires:

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Attached: Copy of my 9/10/2004 affidavit entitled MEMORANDUM OF LAW filed into Marion County Florida, public records on 07/28/2005 with NOTICE OF LEGAL STATUS & PROPERTY RIGHTS.


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