Challenge Jurisdiction In the struggle to obtain our due process rights through the Administrative Procedure of the IRS, the ultimate goal is to challenge the jurisdiction of the government to assess or collect the tax. Their jurisdiction derives from our citizenship and residency residency status as we talked about in Chapter 4 plus and any subject matter jurisdiction they might have in our specific case. Their jurisdiction also derives derives from them calling calling us a “taxpayer” rather than being forced to prove that we are, as we pointed out in sections 2.8.2, 3.11.1.20, and 5.6.5. In any judicial proceeding, the moving party has the burden of proof of demonstrating that the court has subject matter jurisdiction over the matters and parties before it. See the following authorities: • • • •
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Scott v. Sandford , 60 U.S. 393 (1856) Security Trust Co. v. Black River National Bank , 187 U.S. 211 (2002) McNutt v. General Motors Acceptance Corp., Corp., 298 U.S. 178, 178, 189 (1936) Hague v. Committee for Industrial Organization Et. Al., Al., 307 U.S. 496 (59 S.Ct. 954, 83 L.Ed. 1423 (1939) United States v. New York Telephone Co., Co., 434 U.S. 159, 159, 98 S.Ct. 36454 L.Ed. 2d 376 (1977) Chapman v. Houston Welfare Rights Organization Et. Al., Al., 441 U.S. 600, 600, 99 S.Ct. 1905, 60 L.Ed. 2d 508 (1979) Cannon v. University Chicago Et. Al., Al., 441 U.S. 677, 677, 99 S.Ct. 1946, 60 L.Ed. 2d 560 (1979) Patsy v. Board Regents State Florida, Florida, 457 U.S. 496, 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) Merrill Lynch v. Curran Et Al., Al., 456 U.S. 353, 353, 102 S.Ct. 1825, 72 L.Ed.2d 182, 50 U.S.L.W. 4457 (1982) Insurance Corporation Ireland v. Compagnie Des Bauxites De Guinee, Guinee, 456 U.S. 694,, 102 S.Ct. 2099, 72 L.Ed.2d 492, 50 U.S.L.W. 4553 (1982) 694 Matt T. Kokkonen v. Guardian Life Insurance Company America, America, 128 L.Ed.2d 391,, 62 U.S.L.W. 4313 (1994) 391
Jurisdiction over the parties is also called in personam jurisdiction and it originates from any one of the following four sources. sources. The parties must: must: 1. 2. 3. 4.
Live in the territorial jurisdiction of the court. Operate a business in the territorial jurisdiction. Own property inside the jurisdiction. Commit an injury in the territorial jurisdiction.
In addition to the above four elements, the parties to the suit must also have had notice and opportunity (in receipt of personal service and has a copy of the petition, claim, or
complaint). In most cases they must be personally served with the pleadings, for instance, by a process server in order to make them parties to the suit. Proof of jurisdiction must appear on the record of the court. Once the court has knowledge that subject matter is lacking, the court (meaning the judge) has no discretion but to dismiss the action. Failure to dismiss the action means the court is proceeding in clear absence of all jurisdiction and subjects the judge to suit. Personal jurisdiction is not usually an issue in most proceedings, but subject matter jurisdiction is always, always an issue! Subject matter jurisdiction is not everything, It’s the only thing! Subject matter jurisdiction requires: • •
A competent witness or notarized affidavit demonstrating an injury. A statutory or common law basis for a remedy of the injury.
Another very important factor that most litigants forget is that attorneys CANNOT testify as witnesses in trial! A neutral third party or litigant being represented by an attorney, however, can testify. See the following authorities: •
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United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977): “Manifestly, [such statements] cannot be properly considered by us in the disposition of a case.” Gonzales v. Buist, 224 U.S. 126, 56 L.Ed. 693, 32 S.Ct. 463 (1912) : “Under no possible view, however, of the findings we are considering can they be held to constitute a compliance with the statute, since they merely embody conflicting statements of counsel concerning the facts as they suppose them to be and their appreciation of the law which they deem applicable, there being, therefore, no attempt whatever to state the ultimate facts by a consideration of which we would be able to conclude whether or not the judgment was warranted. Telephone Cases 126 U.S. 1, 31 L.Ed. 863, 8 S.Ct. 778 (1888): “Care has been taken, however, in summoning witnesses to testify, to call no man whose character or whose word could be successfully impeached by any methods know to the law. And it is remarkable, we submit, that in a case of this magnitude, with every means and resource at their command, the complainants, after years of effort and search in near and in the most remote paths, and in every collateral byway, now rest the charges of conspiracy and of gullibility against these witnesses, only upon the bare statements of counsel. The lives of all the witnesses are clean, their characters for truth and veracity un-assailed, and the evidence of any attempt to influence the memory or the impressions of any man called, cannot be successfully pointed out in this record.”
As a pro per litigant, you are at an advantage over your attorney opponent because you can testify while your opponent with the government cannot. This is the major defect of the government’s case in most criminal tax trials: lack of witnesses. Even the W-2 forms the IRS will try to use against you as evidence at trial are simply hearsay because they are not notarized and qualify as neither evidence nor testimony. The same defect applies to
any records that are obtained by banks which are not notarized or in affidavit form. The government doesn’t want you to know about these defects in their case against you. Any ruling made by a court in which there was a lack of subject matter jurisdiction is called a “void judgment ”. The really bid deal, the real issue in void judgments is SUBJECT MATTER JURISDICTION!!! Remember, subject matter can never be presumed, never be waived, and cannot be construed even by mutual consent of the parties. Subject matter jurisdiction is two part: the statutory or common law authority for the court to hear the case and the appearance and testimony of a competent fact witness, in other words, sufficiency of pleadings. Subject matter jurisdictional defects include any of the following: 1.
No Petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118, 122 (1930) 2. Defective Petition filed, Brown v. VanKeuren, 340 Ill. 118, 122 (1930) 3. Fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill.2d 202, 486 N.E.2d 893 (1985). 4. Fraud upon the court, In re Village of Willowbrook, 37 Ill. App.3d 393 (1962) 5. A judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill. 140, 143 (1921). 6. Unlawful activity of a judge, Code of Judicial Conduct. 7. Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938); Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E.2d 289 (1956); Hallberg v. Goldblatt Bros., 363 Ill.25 (1936); 8. If the court exceeded its statutory authority, Rosenstiel v. Rosenstiel, 278 F.Supp. 794 (S.D.N.Y. 1967). 9. Any acts in violation of 11 U.S.C. §362(a), In re Garcia, 109 B.R. 335 (N.D. Illinois, 1989). 10. Where no justiciable issue is presented to the court through proper pleadings, Ligon v. Williams, 264 Ill. App.3d 701, 637 N.E.2d 633 (1st Dist. 1994). 11. Where a complaint states no cognizable cause of action against that party, Charles v. Gore, 248 Ill.App.3d 441, 618 N.E.2d 554 (1st Dist. 1993). 12. Where any litigant was represented before a court by a person/law firm that is prohibited by law to practice in that jurisdiction. 13. When the judge is involved in a scheme of bribery (the Alemann cases, Bracey v. Warden, U.S. Supreme Court No. 96-6133; June 9, 1997) 14. Where a summons was not properly issued. 15. Where service of process was not made pursuant to statute and Supreme Court Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E.2d 706, 708 (1955). 16. When the Rules of Circuit Court are not complied with. In addition, any ruling that involves violation of due process of law under the Fifth, Sixth, or Seventh Amendments is also a void judgment. Void judgment can be attacked or vacated at any time and there is no statute of limitation. See Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999). A void judgment is one which, from its inception, was a complete nullity and without legal effect, Lubben v. Selective Service System Local Bd. No. 27 , 453 F.2d 645, 14 A.L.R.Fed. 298 (C.A. 1 Mass. 1972).
To successfully challenge the government’s jurisdiction, we must therefore: •
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Demand that proof of the court’s subject matter jurisdiction appear on the record. Subject matter jurisdiction can only exist when: 1. There is a competent witness present who has suffered an injury; 2. There is a statutory or common-law basis for the claim that is being presented; 3. The court has in personam jurisdiction over both parties. Demand that the government produce an injured party or witness or an affidavit of such a witness. This is impossible in most tax trials because tax crimes are “victimless crimes”. Courts cannot have subject matter jurisdiction if the alleged crime has no flesh and blood victims. If the court is a federal court, then it must be an Article III court and proof of this must exist on the court record. Show that the IRS had no jurisdiction to institute an administrative lien or levy, and had to reduce the lien or levy to a court judgment in order to perfect it and make it into executable. See: http://familyguardian.tzo.com/PublishedAuthors/Indiv/MeadorDan/Articles/Relati onBackDoctrine-020701.htm Demand that the government provide proof that we are “taxpayers” and liable for the income tax by showing us the statute that specifically makes us personally liable. Demand that the government prove that we are “U.S.** citizens” (14th Amendment citizens) subject to the jurisdiction of the court. We can also show that we are NOT “ U.S. citizens” using evidence developed earlier in section Error: Reference source not found during the expatriation process. Show that the government has no jurisdiction to levy income taxes on private natural born state citizens not residing on federal territory. This means when we appear in court, we should do so by making a “special appearance” rather than a “general appearance”. Show that there is NO LAW making private citizens not living on federal property to file income tax returns or pay income tax. We should repeatedly ask in court and especially in front of the jury: “Years of my own diligent research have proven to me beyond a doubt that there is NO LAW that makes me liable to pay income taxes or file returns and you haven’t shown me any law that contradicts this conclusion. Can you please show me such a law?” Show that The IRS assessment is a "naked a ssessment" with no supporting or corroborating evidence that is unrefuted. This means that we have to find some way to prove that the IRS has made their assessment of taxes due without any legally admissible information or prima facie evidence. See also: http://familyguardian.tzo.com/PublishedAuthors/Indiv/MeadorDan/Articles/ReqF orAssessmtCert-020801.htm Show that any evidence the IRS has of taxable income was in error and has been refuted with corrected W-2’s and 1099’s showing zero income. Challenge all presumptions that the jury and the courts might have and make it clear to the jury that such presumptions are a violation of due process of law under the Fifth and Fourteenth Amendments. Each fact or presumption asserted
by either party must be proved by evidence from a competent witness, and attorneys cannot be witnesses. See sections 2.8.2 and Error: Reference source not found earlier for information about common presumptions. The Federal courts have long held that when the presumed "taxpayer" has shown that the IRS made an assessment without any evidence, the burden of proof is shifted to the IRS. Below is the origin of why the courts must do this: TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES PART I - THE AGENCIES GENERALLY CHAPTER 5 - ADMINISTRATIVE PROCEDURE SUBCHAPTER II - ADMINISTRATIVE PROCEDURE Sec. 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision
(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof . Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. The agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557 (d) of this title sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form. However, the IRS can escape their burden of proof by abusing the Law of Presumption and making an unchallenged assertion that is ridiculous or unfounded or downright wrong. For instance, they can erroneously call us a “taxpayer: and as long as we don’t challenge their ridiculous assertion, then the presumption is that they are correct! Here are two cases that talk about the burden of proof, and note how we underlined the word “taxpayer” so you can see how it was used to create a false presumption:
Once the Government has carried its initial burden of introducing some evidence linking the taxpayer with income producing activity, the burden shifts to the taxpayer to rebut the presumption by establishing by a preponderance of the evidence that the deficiency determination is arbitrary or erroneous. (Cites omitted)." Rapp v. Commissioner , 774 F.2d 932, 935 (9th Cir. 1985)
"...[t]he discussion of the burden of proof in Foster applies only to the procedural effects of the presumption that an assessment is accurate. Once a taxpayer has introduced evidence sufficient to support a finding that the assessment is wrong, Foster prevents the Government from simply resting on the presumption and requires it to come forward with some evidence to support a conclusion that the assessment is correct in spite of the taxpayer 's evidence. But the taxpayer continues to bear the risk of nonpersuasion. Foster does not relieve the taxpayer of the burden of proving the government's assessment wrong by a preponderance of evidence." Higginbotham v. United States , 556 F.2d 1173, 1176 (4th Cir. 1977)
The very important thing to remember is that the above two rulings use the word “taxpayer”, which as defined in 26 U.S.C. §7701(a)(14) as a person “subject to” the tax in question, which is another way of saying they are "liable". Since most people are “U.S. nationals” and “nonresident aliens” per the I.R.C., they are “nontaxpayers” and are not affected by the above ruling. Unless and until a law has been produced that specifically makes you liable for a specific tax, then you are presumed to be a “nontaxpayer”. "In the interpretation of statutes levying taxes it is the established rule not to...enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen." ( Gould v. , 245 U.S. 151 (1917)) Gould It would therefore be erroneous and damaging for us to cite as authority any court ruling or statute mentioning the word “taxpayer” because then we have made ourselves “liable”. It would be just as damaging to our interests to allow the government to use the word “taxpayer” without being corrected for each such abuse of the word, because it creates a false presumption and shifts the burden of proof onto us. A good analogy is that if they call us a whore, and we don’t refute it, then from that point on, the burden of proof falls on us to prove that we aren’t a whore. Do you see the point? For instance, we wouldn’t want to cite the statute below, because it doesn’t apply to “nontaxpayers”: 26 U.S.C. Sec. 7491. Burden of proof
(a) Burden shifts where taxpayer produces credible evidence
(1) General rule If, in any court proceeding, a taxpayer [What about "nontaxpayers"? Where are they covered?] introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Secretary shall have the burden of proof with respect to such issue .
(2) Limitations Paragraph (1) shall apply with respect to an issue only if (A) the taxpayer has complied with the requirements under this title to substantiate any item; (B) the taxpayer has maintained all records required under this title and has cooperated with reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews; and (C) in the case of a partnership, corporation, or trust, the taxpayer is described in section 7430(c)(4)(A)(ii). Subparagraph (C) shall not apply to any qualified revocable trust (as defined in section 645(b)(1)) with respect to liability for tax for any taxable year ending after the date of the decedent's death and before the applicable date (as defined in section 645(b)(2)). (3) Coordination Paragraph (1) shall not apply to any issue if any other provision of this title provides for a specific burden of proof with respect to such issue. (b) Use of statistical information on unrelated taxpayers In the case of an individual taxpayer, the Secretary shall have the burden of proof in any court proceeding with respect to any item of income which was reconstructed by the Secretary solely through the use of statistical information on unrelated taxpayers. (c) Penalties Notwithstanding any other provision of this title, the Secretary shall have the burden of production in any court proceeding with respect to the liability of any individual for any penalty, addition to tax, or additional amount imposed by this title.
Do you know why the government even needs the above statute to begin with? Because without it, the fundamental maxim of our legal system would apply, which is that a person is “innocent until proven guilty”, which wo uld create an impossible burden of proof for the government to meet without the active participation of the accused individual by fooling him into thinking he doesn’t have any rights and is “liable” for the tax as a “taxpayer”. Basically, by calling you a "taxpayer", the government makes you "guilty until you prove yourself innocent with evidence you must provide", which they then use against you in the future in violation of the Fifth Amendment. This whole statute was written to shift the burden of proof to innocent and ignorant people who don’t understand that they are not “taxpayers”, because no one in the government nor any of the IRS publications ever told them what a “nontaxpayer” was or that they fall into this category. It’s basically a ruse: a trick to steal your money and it's so slick that only the most seasoned lawyer will even realize what hap pened! VERY IMPORTANT: At the same time, the burden of proof rests squarely on us to demonstrate that we are NOT U.S.** citizens subject to the jurisdiction of the federal court. This is done by following the steps found in section Error: Reference source not found to develop evidence supporting this conclusion.
So, now it is a matter of getting the IRS to allow us to have our due process right to confront and cross-examine the adverse witnesses against us (typically the employers who made prima facie claims on W-2's and/or 1099's), as well as have the meeting to make our defense, and thus make a complete administrative record of ou r efforts to carry and shift the burden of proof. Since the Treasury Department is well aware of what my argument is regarding the claims of employers and payors, and the personnel at the IRS have never heard of the procedure that I have discovered in the law as revealed in section 3.13.4.1 (“ Due Process Principles and Tax Collection”), I suppose that it is no t too difficult to understand why it is that the IRS does not want to provide the Examination Interview, the p rima facie evidence (which they do not have), or summons their witnesses. If the IRS persists in their denial of due process in contempt of the laws enacted by the Congress and our rights, pursuant to Articles 1&5 of the Bill of Rights, shouldn't this warrant Congressional inquiry and action? We want to share another area that people need to re-focus in a more productive direction. The military flag in the courts issue. Many “patriots” have discovered that the flag in the court room is a gold-fringed maritime or admiralty flag. Extensive research has been done on the subject. The research indicates that there can be no doubt that the court displays a maritime flag. Wrong Focus! It is obvious the court is a court of maritime jurisdiction enforcing maritime contracts. Many patriots have gone to jail challenging the jurisdiction of the maritime flag. The courts have combined all four areas law, equity, admiralty and maritime into one "civil" system operating mainly under maritime/admiralty law.
Change focus from challenging the military flag toward challenging the "presumed" contract that give admiralty/maritime venue and subject matter jurisdiction. We must rebut the presumption of the contract and shift the burden of proof. Defendant could shift this burden of proof by admitting a simple affidavit into evidence of the case stating that the defendant denies that he signed any contract or other obligation that binds him to the maritime or admiralty jurisdiction. Also stating defendant did not convey any interest, right or title of himself or his private property to the State, etc.. If these facts are properly admitted into evidence, the burden of proof is shifted to the prosecutor to prove the existence of the contract or other obligation by admitting the original "contract" into evidence, and this must be done by the real party in interest, whoever it is, not a "no interest" third party like the IRS. (Key: IRS is NOT the "real party in interest"and IRS has no first hand knowledge to base testimony on.). Now you want to demand the "real party in interest" be put on the witness stand to testify with first hand knowledge. If the government is unable or unwilling to admit the contract or other obligation into evidence, and produce the "real party" as a witness to testify on first hand knowledge, then its case falls apart absent proof of jurisdiction . If the prosecutor refuses to withdraw the claim and the judge refuses to dismiss the case, they will be proceeding without subject matter jurisdiction. With no subject matter jurisdiction, the judge and other officers of the court have no official or judicial immunity and can be held personally and criminally liable for wrongdoing. The courts have held: "When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost." Rankin v. Howard , (1980) 633 F.2d 844, cert. den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326. "A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts." Davis v. Burris , 51 Ariz. 220, 75 P.2d 689 (1938). "When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction requisites he may be held civilly liable for abuse of process even though his act involved a decision made in good faith, that he had jurisdiction." Little v. U.S. Fidelity & Guaranty Co. , 217 Miss. 576, 64 So. 2d 697. "No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence." Ableman v. Booth , 21 Howard 506 (1859). “We (judges) have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the
other would be treason to the Constitution." Cohen v. Virginia , (1821), 6 Wheat. 264 and U.S. v. Will, 499 U.S. 200. Maybe if the court refuses to back off the defendant should demand that the judge take mandatory judicial notice of the above cases and similar cases. If the court still does not back off and worse comes to worse, the defendant should raise the issue of subject matter jurisdiction after trial and before sentencing at allocution. Allocution must be demanded before sentencing or the right is presumed waived. If the rats still don’t back off the defendant can make a direct appeal to the appellate court and on to the Supreme Court of the United States; he can file petitions for the writ of habeas corpus; he can sue the perpetrators, i.e., the cop for champerty, the lawyer for barratry and bringing a case with unclean hands, the judge for lack of jurisdiction, and all of them for conspiracy to fraudulently conceal the true nature and cause of the accusation, and maybe even for RICO. It is never too late to challenge subject matter jurisdiction. It ain’t over until the defendant gives up.
WARNING!: If you go into federal court claiming to be a nonresident alien who wants his constitutional rights respected in regards to federal income taxes, be careful! We’d like to remind you that litigation in the federal courts relating to federal income taxes, under 28 U.S.C. §2201, cannot address constitutional rights as a remedy to escape liability if you are claiming lack of federal citizenship or Natural Born Sovereign Citizenship status.. You can only succeed in court against federal income taxes on the basis of Constitutional rights if you can force the litigation into a common law court or state court! Please go back and reread section 5.6.9.2 again to learn how to do this.
