Sunday, April 15, 2012

Obligations of Citizenship in America

Obligations of Citizenship in America


Loyalty Oath and Bond


An array of provisions in constitutions and laws require public officers and employees to swear oaths to support the constitution, and in some cases to qualify for and perform the duties of the office.  Consider the following prominent oath obligations.

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US Constitution Article VI Clause 3

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

4 USC § 101 - Oath by members of legislatures and officers 

 

Every member of a State legislature, and every executive and judicial officer of a State, shall, before he proceeds to execute the duties of his office, take an oath in the following form, to wit: “I, A B, do solemnly swear that I will support the Constitution of the United States.” 

 
Florida Constitution Article II Section 5.Public officers.

(a) No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers.

(b) Each state and county officer, before entering upon the duties of the office, shall give bond as required by law, and shall swear or affirm:

“I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of   (title of office)   on which I am now about to enter. So help me God.”,

and thereafter shall devote personal attention to the duties of the office, and continue in office until a successor qualifies.
(c) The powers, duties, compensation and method of payment of state and county officers shall be fixed by law.

Florida Statute 876.05 Public employees; oath.

(1) All persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivisions, counties, cities, school boards and districts of the free public school system of the state or counties, or institutions of higher learning, except candidates for federal office, are required to take an oath before any person duly authorized to take acknowledgments of instruments for public record in the state in the following form:

I,  , a citizen of the State of Florida and of the United States of America, and being employed by or an officer of   and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida.
 
(2) Said oath shall be filed with the records of the governing official or employing governmental agency prior to the approval of any voucher for the payment of salary, expenses, or other compensation.

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Does an Oath Constitute a Bond?

The US Constitution mistakenly implies that an oath binds a person.  The Florida Constitution requires public officers to swear an oath of loyalty and "give bond as required by law." So apparently an oath does not bind a person, but a money bond might, if the Legislature decides to require it.

Unswearing Oaths in Advance - Kol Nidrei

In the face of all these oaths, we find that some groups of people encourage the foreswearing (advance unswearing) of future oaths.  Take for example the Kol Nidrei which all devout Jews declare as part of the Yom Kippur observation at every September's end (English equivalent of Aramaic text):

"All vows, and prohibitions, and oaths, and consecrations, and konams and konasi and any synonymous terms, that we may vow, or swear, or consecrate, or prohibit upon ourselves, •from the previous Day of Atonement until this Day of Atonement and ...• ♦from this Day of Atonement until the Day of Atonement that will come for our benefit.♦ Regarding all of them, we repudiate them. All of them are undone, abandoned, canceled, null and void, not in force, and not in effect. Our vows are no longer vows, and our prohibitions are no longer prohibitions, and our oaths are no longer oaths."

Wikipedia explains how this has bothered non-Jews for centuries:

"The Kol Nidrei prayer has been used by non-Jews as a basis for asserting that an oath taken by a Jew may not be trusted. Historically, this accusation was leveled so often and so persistently that many non-Jewish legislators considered it necessary to have a special form of oath administered to Jews ("Oath More Judaico"), and many judges refused to allow them to take a supplementary oath, basing their objections chiefly on this prayer. As early as 1240 in the Disputation of Paris, Yechiel of Paris was obliged to defend Kol Nidrei against these charges. The Russian government, in 1857, decreed that the prayerbooks must include, as an introduction to Kol Nidrei, a Hebrew explanation to the readers of the limited nature of the vows that could be released by this ceremony."



Who Needs an Oath Bond in Florida?

Apparently, the sovereign citizens from whom all government sovereignty flows in Florida have decided to ignore the Kol Nidrei declaration and similar declarations by others.  They have let the Legislature decides who has to have a bond.  Florida Statutes require a bond for sheriffs and their deputies, tax collectors, public service commissioners, clerks, and others who handle money or property.  No statute requires a bond for judges.  Florida's government "self-insures."  The Risk Manager for the CFO backs the financial risk of judges, probably because judges have conferred immunity on themselves.

No law punishes a public employee's violation of loyalty oaths except by virtue of statutes, rules, and regulations forbidding specific behaviors that might or might not constitute oath violations.  It's a dice-roll. 

Does the Loyalty Oath Really Matter?

As a consequence of the idea that an oath constitutes a bond, the judges need no bond, and that the law ignores Kol Nidrei and similar declarations, oaths mean pretty much nothing, except in the minds of those who swear them.  And that probably explains why Florida's constitution and laws require judges to swear no 6 oaths to become functioning judges.  They include the  bar oath, elector oath, candidate oath, candidate loyalty oath, public officer oath, and public employee oath.  In 2008 the Florida Supremes ruled that the public officer oath constitutes compliance with all oath statutes for judges - they stand above the fiat of law.

Moreover, you might have noticed the words "and Government" in the foregoing oath text.  By swearing to support governments, the public officer promises to ignore the Constitution because loyalty to a government official who has gone rogue constitutes loyalty to an enemy of the Constitution.  Loyalty to Government means loyalty to people in government, not to the ideals of good government.  Such language creates and perpetuates the "good old boys network" that all Citizens rightly despise and fear.

Take heart, though.  Among Florida's loyalty oaths, only the Public Officer's oath has such idiotic language.  As you can see above, the public employee oath in Florida Statute 876.05 and officer's oath mandated by the US Constitution and 4 USC 101 do not contain that language.

We all should realize that we reduce the need for oaths when the voters elect honorable people for government and demand oversight with tools to toss oath violators.


The Bottom Line of Loyalty Oath Enforcement


WE THE PEOPLE have to FORCE people in government to behave constitutionally.  When they don't, we start a gradient approach to creating enough displeasure in them to overcome their flippant disregard for and make them adhere to the Constitutions of the US and State. 

The "gradient?"  Figuratively, we look over at the drawer where the book of matches rests, then back at them.  If that doesn't get their attention, we walk over to the drawer and put our hand on the drawer handle.  If that doesn't get it, we pull the drawer open and look into it, then back at them.  If that doesn't work, we proceed step by step till we have them boiling in a giant cauldron of soup.  Then, in front of all the other public officers, we pull out our silver spoons and eat the ones in the cauldron.  That's the ONLY way to do it that make sense.  Heads on a pike in full public view, so to speak.

In order for us to become competent at the job of exhibiting the sovereignty of citizenship, we must put wise and competent governors in place, watch them like a hawk, and boil those who attempt or usurp power we did not give them.  

We Must Study to Become Good Citizens


In order to understand whether public employees violate their loyalty oaths to support constitutions, and find out how to hold them accountable, we must set out on a course of study.  We must learn the ideals of good government through history studies, then the constitutions, then the nomination and election process, then the court system, then litigation practice, then the rules of court procedure and evidence code, then relevant laws and court rulings. 

We Must Observe and Talk to Government Employees


One cannot control what one does not monitor.  Therefore we must watch public employees, particularly elected and appointed officers, like a hawk.  And we must communicate to them our pleasure or displeasure with their performance.

Of course we must recruit our family members and fellows, and teach them the same. 

Political Activism:  Not An Option


And above all, we must become politically active - learning about politicians, encouraging good people with good knowledge and sense to run, preventing the evil ones from getting elected, and kicking out those who do a bad job in government.  We must run to support those whom government employees have abused under color of law, INVESTIGATE to learn whether abuse occurred, and ACTIVATE to excise the abuse and abuser from Government.

Constitution Tweaking Required


A Constitution must serve the ideals of good government AND evolution of civilization.  And we must realize that those who went before us probably put wrong things in the Constitution.  So, we must tweak our Constitution to remove its bad elements and put better ones in. 

For example, our Constitutions grant suffrage to utterly irresponsible people, and that simply must change in order to create and maintain a great republic.  We cannot let children, indigents, the stupid, the abysmally ignorant, and recipients of welfare vote.  Only the smart, self-sufficient, industrious, educated, and responsible Citizens should have the right to vote. 

We must not permit businesses and governments to contact, lobby, support, or campaign for elected and appointed public officers.  We must police the election process to make and keep it fair and honest.  We must re-empower the non-government grand juries, impanel them with well-educated, responsible voters, and establish mechanisms for them to investigate and indict public officers for crimes and malfeasance, and establish extra-government trials of those indicted.   We must eliminate abusive taxation, deficit spending, participation of the bar and its members in government, and all forms of sovereign immunity.  We must restore the voice of state legislatures in the federal government, via the US Senate. We must strip of all government authority and money those in and out of government who violate their loyalty oaths   And we must insist that schools teach all of the above principles to children as part of the standard public education.

The Critical Importance of Civilization Citizenship


I consider the above as the minimum obligations of American Citizenship.  But our public obligation does not stop there.  We also must work to reform and improve the American Civilization.  We ought to find ways to improve the quality of our gene pool by dramatic reduction of the number of people with IQ below 85, who cannot graduate from high school.  Presently upwards of 85 million people in the USA suffer with the affliction of such low intelligence that they simply cannot compete for good jobs and mates, and they ultimately become a serious public burden. 

We need to overhaul the public education system so that it matriculates responsible, well-educated or well-trained adults, ready for immediate and productive employment. We should require our low-intelligence children to attend special schools that teach academics to the 7th grade and them put the students into apprenticeship programs where they learn a trade or simple productivity that does not frustrate them.  The system should educate the smarter students all the way to PhD levels if they have the aptitude.  And the schools should balance academics with practical work in school factories and farms where they make their own food, clothing, furniture, and computers, selling the excess into the community.  Schools should run 11 hours a day 6 days a week 11 months a year, and teachers should work 3 12-hour days per week and go on sabbatical every 7th year.  All students tutor junior students. Schools give no homework, allow no soda pop, candy, or junk food, and feed the children breakfast and lunch of raw, fresh, organic nuts, grains, fruits, berries, and vegetables daily. The system should rate students and teachers based on statistical performance, and post the results publicly for all to see and understand.

I won't go into the myriad problems the above education model would solve, as anyone with common sense should intuitively imagine them.

Conclusion - Get Off Your Butt


The USA's founders did not sit on their butts and leave government up to others.   They wanted to, of course.  But the king's abuses rose to the level of intolerability, and the colonists had to rise up against those abuses.  The leaders, fortunately, did not wait to get an education in the basics till it had become too late.  Today's Americans, however, have waited.  Most haven't a clue about the ideals of good government, or of law.  Many ignore the political process.

To all of you, I say "Get off your butt!"  Get the necessary education now, become politically active along the ideals of good government.  If you see a problem, get busy and correct it.  Work to improve our nation and civilization.  Don't expect the next guy to do it because he might be a Communist or Fundamentalist Muslim, both of whom want to destroy our republics.

If you don't do this, WHO WILL?



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Bob Hurt
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     WARNING.  Bob Hurt does NOT practice law, give legal advice, or function as a licensed counselor and attorney at law.  Construe comments as conjecture or education, and NOT as legal advice.  Consult an honest, qualified attorney on all questions of law.



Saturday, April 14, 2012

Update on Loyalty Oaths in Florida, April 2012



Four benefits came from my work on Loyalty Oaths in Florida:

  • 1.  The judges swore new public employee oaths, as they should have.

  • 2.  The Florida Department of State put jurat forms back on the election-related documents, as they should have.
  • 3.  I wrote a report to document my efforts and the results, in order to encourage others to act when they see the need.
  • 4.  The Florida Legislature removed 876.07 requiring candidates to swear a loyalty oath.
The Supreme Court opined that a judge needs to swear only the oath in Article II Section 5b of the Florida Constitution, and by doing so has complied with the statutes.  They said the Legislature cannot impose additional requirements on the judiciary and its members outside the constitution's impositions.

I disagree with them.  The States' officers must abide by the US Constitution and US Law, and both require judges to swear an oath different from the one in the Florida Constitution

I stopped working on it.  The media has no interest and the Supremes are pretty much a brick wall.   I showed them their error, explained the problems it caused, told them how to correct it, and informed a number of lawyers about it.  One took the arguments to the Supremes in a disbarment fight.  They ruled as I said above.  I documented it all in my report. I did my job as a sovereign citizen.  It was the least I should do.  Most people do the least they can.


I believe several oath-related issues remain open to administrative, legal, and political activism:

1.  The State Board of Payroll does not demand evidence of the required oaths on record before issuing pay.  It should.

2.  The Florida Constitution's oath contains superfluous wording that destroys its apparent intent, and the Legislature must remove that wording.  The words "and government" must go.  One should never swear to support the government, since it is an enemy of the constitutions owing to humans' tendency to aggrandize themselves with power that the constitutions don't grant.

3.  The Florida Constitution needs to require bonds to back those sworn oaths and impose penalties for violating the oaths after swearing them.  Public officers should pay the bond fees out of their pockets.  The Constitution needs to stipulate a way for citizens to lodge complaints against the bonds of public officers who injured them.  A special grand jury should resolve those complaints using private attorneys.  Registered voters with college degrees should sit on that grand jury.  Government must fund it. State attorneys should nto influence it. They should choose their own foreman, not a lawyer.   Judges and others should not have immunity from tort lawsuits for failing to do their duties.  And it should be possible for injured parties to prosecute the judges for crimes against them/.

I consider all of these constitute justifications to hammer on government for corrective action.  I have already written to the Governor and Supreme Court and Bar ruler of judicial nominating commissions about the first two items. They ignored me.  If you cover the cost, I'll hammer on them in court.

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5th Amendment vs self-incrimination in obeying IRS summons

The 5th Amendment of the US Constitution offers a protection against witnessing against oneself in a criminal proceeding.  That extends to civil proceedings too because one stands to lose liberty or property by a civil ruling.  It does not extend to self-regulatory proceedings such as SEC hearings regarding stock broker crookedness because the brokers agreed in advance to submit to the regulatory authority's decisions.

One might think that silence alone should suffice to invoke the 5th Amendment protection against witnessing against oneself.  It does not suffice.  In June 2010, the Supreme Court ruled in Berghuis v. Thompkins that criminal suspects must unambiguously invoke their right to remain silent. Otherwise,  prosecutors can use the defendant's subsequent voluntary statements can in court and police can continue to question the defendant. And, the courts can construe a voluntary reply after lengthy time in prison as a waiver of the right.

Regarding 5th Amendment vs self-incrimination in obeying IRS summons - it becomes TRICKY BUSINESS for non-filers.  The Government could not possibly get any more crooked, we think, and then it does find ever more ways to destroy Constitutional protections, such as that against self-incrimination. 

You think "If I let the IRS go over my personal papers, they will find some justification for getting the DOJ to charge me with a crime, maybe not through the papers but through information they see such as my business and employment contacts, or people I have had financial dealings with which I want to hide."  You have though with absolute precision.  Most legal experts will admit that a businessman has a hard time getting through a single day without violating some federal law.  Thus ANYTHING the IRS or anyone else in government sees in your personal life can lead to jail time.  And that ESPECIALLY includes the judge.  In reality, the judge's viewing of books and records puts the IRS victim in just as much danger as a viewing by the IRS agent or DOJ attorney because all of them work for the adversary (the Government).

In other words, I would become VERY AFRAID because people in government constitute a GRAVE DANGER, even to completely innocent people.  In other words NOBODY is INNOCENT.  NOBODY.  And that GRAVE DANGER exists because no law exists to punish violations of the loyalty oaths Government employees allegedly swear.

I have a hard time imagining any more devious, sneaky, conniving behavior of Government than that revealed in the effort to destroy 5th Amendment rights. You cannot just say "I invoke my 5th Amendment right not to answer (or give you my books and records) because I fear that it might incriminate me." 

Nope, as you will see, that simply is not good enough.  The judge takes you "in camera" (clears the court of observers)  and looks at your books and records and always determines that no risk exists of them incriminating you if the IRS/DOJ sees them.  I guess he forgets that HE is part of the Government too, so he has no business looking at them. 

And that just BEGINS the recounting you will see below of the litany of the court's abuses of the right not to incriminate one's self.  And if you dig into all those cases the appeals court cites, you will see a horror story unfold that will strike terror into your heart.  You will know that the courts have embraced every specious nonsense the DOJ has raised over the years in their efforts to destroy your constitutional protections in just this one area. 

The Government MUST have its eyes on your private papers so it can CONVICT you and everyone you associate with financially.

If you don't like this harsh bit of reality, contact your legislators and raise holy hell.

Mac MacPherson wrote this about his brave adventures into the dragon's lair (and of course he knows how to keep their eyes out of your books and records):

I have won scores of summons cases – fifth and first amendment – but careful; do not mix apples with oranges.

For fifth example, for non filer, see district and ninth circuit cases of u.s. v rendahl. On first, it was church or organization.

 

_______________________________

 

Donald W. (Mac) MacPherson

Attorney and Counselor at Law (Arizona & Oklahoma)

 

The MacPherson Group, P.C.

3039 W. Peoria Ave. , #102-620 | Phoenix, AZ  85029

T  +1 (623) 209-2003    |    E   mac@beatirs.com

F  +1 (623) 209-2008    |    W  www.Beat-IRS.com
C +1 (623) 703-1608     |    T   1 (800) BEAT-IRS




746 F.2d 553

84-2 USTC P 9908

UNITED STATES of America, and Michael W. Cameron, Special
Agent, Internal Revenue Service, Petitioners-Appellees,
v.
James K. RENDAHL, Respondent-Appellant.
UNITED STATES of America, and Michael W. Cameron, Special
Agent, Internal Revenue Service, Petitioners-Appellees,
v.
James V. BLAKELEY, Respondent-Appellant.
UNITED STATES of America, and Michael W. Cameron, Special
Agent, Internal Revenue Service, Petitioners-Appellees,
v.
Michael P. DRISCOLL, Respondent-Appellant.

Nos. 83-4053, 83-4054 and 83-4146.

United States Court of Appeals,
Ninth Circuit.

Argued May 10, 1984.
Submitted June 19, 1984.
Decided Nov. 1, 1984.

Charles E. Brookhart, Jo-Ann Horn, Dept. of Justice, Washington, D.C., for petitioners-appellees.

Neil Halprin, Missoula, Mont., for respondent-appellant.

Appeal from the United States District Court for the District of Montana.

Before FLETCHER and FARRIS, Circuit Judge, and CRAIG,* District Judge.

FLETCHER, Circuit Judge:

1

Respondents Rendahl, Blakeley and Driscoll appeal the district court's order holding them in civil contempt for failing to obey its order enforcing an IRS summons. All three claimed a Fifth Amendment privilege and made an in camera offer of proof to the district court to support their claims. We reverse.

FACTS

2

IRS agent Cameron issued a summons to each of the respondents ordering them to appear before him to testify and produce all documents reflecting money received from, or transactions involving, taxpayer William P. Driscoll (brother of respondent Michael Driscoll) during the years 1976-1980.1 None of the respondents complied with the summons. The IRS petitioned the district court for enforcement on February 14, 1983. The court set an enforcement hearing for March 11, directing respondents to show cause why they should not be compelled to obey the summons.

3

None of the respondents appeared at the enforcement hearing, and only Rendahl filed a response to the order to show cause, claiming a Fifth Amendment privilege. The court entered an order directing respondents to appear before Agent Cameron within 15 days.

4

On March 29, respondents Rendahl and Blakeley appeared before Agent Cameron but did not produce any documents and did not answer questions. Driscoll did not appear.

5

Concluding that its earlier order was not specific enough as to time and place, the court amended its order, directing respondents to produce documents and give testimony on April 28, 1983. Only Rendahl appeared on that date. He refused to answer questions as to whether he had received any compensation from William P. Driscoll between 1976 and 1980, claiming a Fifth Amendment privilege, and said he had no documents. Blakeley and Driscoll did not appear.

6

The government moved for an order to show cause why respondents should not be held in contempt for failing to obey the enforcement order. The court set Rendahl's and Blakeley's contempt hearing for July 1. Because of a problem in serving Driscoll with the enforcement order, the court set a second enforcement hearing for Driscoll on the same date. All three respondents appeared, and each made an in camera offer of proof to support their claims of a Fifth Amendment privilege. The court held the claims of privilege invalid, and on August 2 found Rendahl and Blakeley in civil contempt, ordering them incarcerated until they purged themselves of the contempt by producing the documents and giving testimony. 567 F.Supp. 515.

7

On the same date, the court enforced the summons as to Driscoll, ordering him to appear before Agent Cameron on August 16. He did not appear, and the court held Driscoll's contempt hearing on September 16. Driscoll appeared and the court suspended the hearing to allow him to appear before Agent Cameron that day. Driscoll did so, but he did not produce any documents and refused to answer questions as to compensation he received from William Driscoll. The court reconvened the contempt hearing and also found Driscoll in contempt.2

DISCUSSION

8

1. Res Judicata.

9

The IRS argues that, because respondents could have pursued their Fifth Amendment claims as defenses to the summons in the enforcement proceedings, the enforcement order is res judicata and prohibits them from litigating that defense in the contempt proceedings. See United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983) (because Rylander could have raised defense of lack of possession of records in enforcement proceeding, he could not raise it, for the first time, as a defense to contempt). Blakeley did not raise any defense to enforcement of the summons. Rendahl and Driscoll contested issuance of the enforcement order but did not appeal it. The IRS claims that respondents, having failed to pursue their defenses to enforcement, are not free to disobey the court's order and then raise those same defenses in the contempt proceedings.

10

Respondents are not barred from raising their defense of privilege in the contempt proceedings because the Fifth Amendment defense could not have been properly litigated in the enforcement hearing. In United States v. Bell, 448 F.2d 40 (9th Cir.1980), we held that the appellant's Fifth Amendment challenge was premature on appeal from an enforcement order. "Appellant must present himself for questioning, and as to each question elect to raise or not to raise the defense." 448 F.2d at 42. In United States v. Ellsworth, 460 F.2d 1246, 1248 (9th Cir.1972), we further held that a district court's enforcement order restricting the questions that could be asked by an IRS agent was improper because it allowed a blanket assertion of the Fifth Amendment; the person should have been ordered to appear and assert the privilege to particular questions asked. Finally, in Steinert v. United States, 571 F.2d 1105 (9th Cir.1978), we held that an order that required respondents to appear before the IRS and allowed them to determine whether to raise the Fifth Amendment privilege with respect to each question asked or document sought was not a final, appealable order.

11

Thus, although the court allowed Driscoll to litigate the privilege issue in his enforcement hearing and Rendahl raised it in his, the issue was premature at that stage. Had respondents appealed, this court would likely have responded as in Bell, requiring them to obey the order to appear and raise the privilege in response to particular questions. Because none of the respondents appeared before the IRS until after the enforcement order was entered, their first opportunity to litigate properly their Fifth Amendment claims was at the contempt hearing.

12

2. Fifth Amendment.

13

In order to support their assertion of the Fifth Amendment privilege, respondents must show that their testimony would "support a conviction under a federal criminal statute" or "furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). The privilege is validly invoked only where there are "substantial hazards of self-incrimination" that are "real and appreciable," not merely "imaginary and unsubstantial." United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). The existence of such a hazard is generally determined from "examination of the questions, their setting, and the peculiarities of the case." 615 F.2d at 1240.

14

The district court found that respondents' testimony would have incriminated them under this standard, since evidence that they had received income in any amount could be used to help prove they had received sufficient income to be required to file a return, thus subjecting them to possible liability for failure to file a return in violation of 26 U.S.C. Sec. 7203 (1982). Our review of the transcripts of the in camera proceedings convinces us that the district court's conclusion was correct. The district court nevertheless held that respondents were required to answer questions, despite the likelihood of self-incrimination, under this court's decision in United States v. Carlson, 617 F.2d 518 (9th Cir.), cert. denied, 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 468 (1980). We disagree.

15

In Carlson, the defendant had filed a false W-4 form claiming ninety-nine withholding exemptions, and then did not file a return. As defense to a charge of willful failure to file a return, Carlson claimed that filing a return would have incriminated him for having previously filed the false withholding form. The court found that Carlson would indeed have incriminated himself had he filed a return. 617 F.2d at 520. Nevertheless, it concluded that Carlson had not validly invoked the privilege. The court noted that in cases where the privilege is invoked to avoid incrimination for past tax crimes, the privilege against self-incrimination comes in conflict with the "need for public revenue collection by a process necessarily reliant on self-reporting." 617 F.2d at 521. In such cases, the court must balance these two interests.

16

In Carlson, the court concluded that the public interest in raising revenue outweighed Carlson's Fifth Amendment interests. Two factors were significant in the decision. First, Carlson had used the privilege as part of a scheme to avoid payment of taxes--his submission of a false W-4 form was concealed by his failure to file a return, which also enabled him to conceal his overall tax liabilities. Second, the requirement of filing an annual tax return is directed at revenue collection, not criminal prosecution: the questions in the return are neutral and directed at the public at large. See United States v. Sullivan, 274 U.S. 259, 263-64, 47 S.Ct. 607, 608, 71 L.Ed. 1037 (1927) (person engaged in illicit trade cannot refuse to file return, but must assert Fifth Amendment privilege as to specific incriminating questions).

17

The interests balance differently in this case, however. Respondents are not being asked to file a tax return; rather, they are being asked to give information in an IRS investigation concerning another person. Thus, the revenue system's reliance on self-reporting is not implicated here. Recognizing the Fifth Amendment claim would not, as it would in Carlson, give respondents immunity from criminal prosecution for failing to file returns. It would merely require the IRS to obtain information through some other source.

18

Furthermore, there is no basis for distinguishing this case from one in which respondents' own liability, civil or criminal, is under investigation. This case is analogous to Federal Deposit Insurance Co. v. Sovereign State Capital, Inc., 557 F.2d 683 (9th Cir.1977), where this court held that one who was under a state indictment for tax fraud could not be forced to testify as to his assets in a judgment debtor proceeding. See also United States v. Jones, 703 F.2d 473 (10th Cir.1983) (subject in ongoing civil and criminal IRS investigation could not be forced to answer questions regarding financial affairs in judgment debtor proceedings).

19

The fact that respondents were not the subject of any criminal investigation is not significant. The existence of a criminal investigation serves only to establish that answers are likely to be incriminating. Here, respondents have established the likelihood of incrimination by offering proof that they could be subject to criminal liability for failing to file returns for the years 1976-1980. Thus, we conclude the district court erred in holding that respondents did not establish a valid Fifth Amendment privilege.

20

Whether that privilege would extend to all the documents sought and to all questions asked is impossible to determine because there is no record as to what specific questions, if any, Driscoll and Blakeley were asked and the district court did not address the Fifth Amendment issue as to particular documents. There may also be a remaining issue as to whether a statute of limitation protects respondents from criminal liability for some of the years in question, thus eliminating the possibility of self-incrimination. Therefore, we reverse and remand for further proceedings consistent with this opinion.

*

Hon. Walter E. Craig, Senior United States District Judge for the District of Arizona, sitting by designation

1

The IRS has authority to summon witnesses and records and to seek enforcement in the district court, pursuant to Internal Revenue Code Secs. 7602 and 7604 (1982)

2

The contempt orders have been stayed pending appeal





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IRS Delegation of Authority to Enforce Collections and Make Deals



IRS Delegation of Authority to Enforce Collections and Make Deals
You might have a good reason to sue


Attorney Mac MacPherson sends the attached article on Delegation Orders - the basic authority of the IRS employee to sign anything that binds the employer (the IRS and Government).

Take note that the courts don't seem to care that much whether the IRS agent has a Delegation Order transferring authority to the agent from Congress regarding making a deal on a reduction of taxes, interest, and penalties.  The ONLY way to deal with this seems to lie in DEMANDING the PROOF of DELEGATION OF AUTHORITY BEFORE agreeing to anything with the IRS, including compliance with a summons or any collection action.

In my opinion, I would have no choice but to complain to Treasury Inspector General for Tax Administration and the Assistant Commissioner of the Internal Revenue for an agent's effort to assess or collect tax without proof of a delegation of authority from Congress to the President to the Commissioner to District Director to the agent,  I would demand the firing of the agent.  If that does not resolve it, I would sue the agent for "trespass on case" - a general usurpation of authority and violation of my rights.  Only in a last resort would I sue the Government under 26 USC 7430-7434.  Sometimes only the last resort remains.

  • 7434 deals with fraudulent filing of an information return.  If an IRS agent has no delegation of authority to collect taxes (and I don't know of any that do), the agent commits fraud by inserting a freeze code in the computer and filing a SUBSTITUTE FOR RETURN (Fake 1040), based on false 3rd party reports of the victim earning taxable income, in order to trigger a fake assessment, and justify dunning me for a tax that I don't owe.  That justifies a 7434 lawsuit  in my opinion.  I'd check this with a lawyer, of course, on this and all other legal theories.
  • 7433 deals with unauthorized collection actions such as assessing or giving deficiency notices without delegation of aforesaid authority.
  • 7432 deals with failure to release a federal tax lien (f an agent filed one with the local county clerk against my name without delegation of authority, then I ought to demand its release, and if the agent does not, then that justifies a lawsuit  under 7432.
  • 7431 deals with unauthorized inspection or disclosure of information returns.  CID agents disclose information all the time that injures people's reputations with neighbors, employees, family, friends, and business associates.  They generally get away with it, but I consider it worthwhile to keep tight check on the agents and timely to demand identity and contact info for all people they contact.
  • 7430 deals with costs and fees I can collect if I beat them in litigation.  Everyone should have no trouble guessing how hard it is to beat the Government over IRS abuses. 

I consider it profoundly difficult and expensive to get any such case to trial.  After all, these lawsuits go against the GOVERNMENT for the misbehavior of agents, not merely against an underling agent.  Any lawyer who fights them on such issues will admit it becomes a serious uphill battle.  Why?  Because they fight the biggest law firm in the world, and it has almost unlimited legal talent and money.  It took the Church of Scientology 200 lawsuits (and 2000 by its members) to deplete the DOJ's annual tax litigation budget sufficiently to bring the DOJ to the negotiating table. Scientology won tax exempt status as a result.

I consider it dangerous to sue the IRS in tax court because the judges function like tyrannical, overpaid accountants.  In tax court I become the plaintiff and I have the burden of proof, and the Court assumes I am a taxpayer. But sometimes I might find it strategically expedient to go to tax court.  Even so, I can challenge jurisdiction and refuse to pay the filing fee, and pull other shenanigans to frustrate the IRS's effort to rob me.  Robert Clarkson gained some notoriety before his death by cycling people between Collection Due Process Hearings and Tax Court over and over till expiry of the statute of limitations (10 years from the most recent notice of deficiency for the given year), nailing the IRS for their incessant procedural violations and lack of authority.  Kris Anne has carried on his work at http://patriotnetwork.info.

Of all the methods of dealing with the Government's Income Tax Mafia, I like best the practice of getting off the IRS radar, another difficult task, but ultimately rewarding.  First I should make myself judgment proof and get every possible asset, including the clothes on my back, out of my name and into the name of some person or trust with no traceable connection to me.  And, I'll become an entrepreneur so no "employer" submit W-2 or 1099 forms about me.  This will diminish the ability of the IRS to steal my money.  I will sell my services for gold and silver US minted coin  so that if a court forces me to file a return in order to stay out of jail, I'll list the face value of those coins I earned, which will probably leave me with a very low tax obligation if any.  I will FOIA request my IMF (Individual Master File) and demand of the agents to create reversal documents for any they entered which cause me to appear as a resident of the federal zone (like Puerto Rico), or as engaged in any "trade or business" or as a "filer," for I have no such status.  And I shall hound them to the gates of hell till they change my status in that IMF.  And I'll keep my eye on that IMF for years to come to ensure I stay off their radar.  If you don't have a clue how to force the IRS to remove the errors from your IMF, Email me and ask (subject line: "I need help with my IMF"),

And, finally, I'll alert my employers, if any, that they must provide me with proof that any money I earn constitutes taxable income, and if they fail, but submit a w-2 or 1099 showing other than ZERO income, I'll sue them for the damages to compel them to correct the false record.  In my opinion THAT is where America breaks down - the negligent cowardice of employers, all afraid to fight the IRS on behalf of employees.

If you want to brush up on justifications for the above, you might want to read Tommy Cryer's Memorandum and trial brief.  The government tried to convict him of Willful Failure to File, but they failed.  Visit http://truthattack.org, and look at the resources section.  While there, look for the tax code and regulations and download them and READ THEM so you'll understand what they say.

I have attached some documents including the information about the absence of district directors that the law requires. 

As you might know, Lindsey Springer resides in federal prison for tax crimes.  The day before he reported to prison, he talked with me about the absence of district directors.  In a telephone call 12 April 2010, Lindsey Springer explained to me a chain of legal events. I uploaded a recording of the interview here:

http://www.esnips.com/displayimage.php?album=418358&pid=3542655&uid=81788#top_display_media

I concluded that the events show the government cannot lawfully force you to pay income tax, although that obviously does not stop them from trying. The law lets the President set up revenue districts. He created executive orders that gave that power to the Secretary of Treasury in the 1950’s. The Secretary of Treasury (not Congress) created the IRS. Congress enacted RRA98 to restructure the abusive IRS in 1998. Government lawyers mistakenly abolished revenue districts in 2000 (some quibble about the date, but not the fact – see the Treasury Orders that follow). The law and regulations require enforcement of revenue laws by delegation of authority from Secretary of Treasury to District Directors. No such directors exist, so government has no enforcement authority for income tax collections.

Additional References:
I have uploaded to scribd.com a more detailed report that contains the relevant treasury order eliminating IR districts.  You can find it here:

http://www.scribd.com/doc/50113267/Income-Tax-Collection-in-Absence-of-IRS-DIstrict-Directors


Mac says this about delegation orders:


BOB, this is an eye opener – cases say irs can renege on contracts with impunity if irs person signing did not have delegation order.


Thus, we need order for everything. An old argument, but – see article, case where judge said it is all atty’s fault for not asking for do.


So, I ask for do in cdp re assessment/form 23C etc.


Now, in tax court, irs says frivolous.


My fault if I ask, my fault if I do not.


Stay tuned.

_______________________________

 

Donald W. (Mac) MacPherson

Attorney and Counselor at Law (Arizona & Oklahoma)

 

The MacPherson Group, P.C.

3039 W. Peoria Ave. , #102-620 | Phoenix, AZ  85029

T  +1 (623) 209-2003    |    E   mac@beatirs.com

F  +1 (623) 209-2008    |    W  www.Beat-IRS.com
C +1 (623) 703-1608     |    T   1 (800) BEAT-IRS

 

 

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The document to which he referred came from The Journal of Tax Practice and Procedure, June-July 2009 issue, entitled "Authority? Authority?! Of Course I Have Authority! Thoughts on Closing Agreements, Delegation Orders and Signature Authority."  The article reinforced the fact that the courts will overturn deals taxpayers made with IRS employees who did not have a proper delegation of authority.

Thus, I have adopted the attitude of "SHOW ME PROOF of your the delegation of authority for this action from Congress to you."  And I shall demand every iota of such proof until I feel perfectly satisfied that the person trying to obtain my compliance has CREDENTIALS to prove identity, and has actual, proven, delegation of authority.  If I don't get that proof, government agents don't get my willing compliance, and I complain loudly, often, and hard to everyone in the chain of command to get that person disciplined, fired, sued, or imprisoned for operating under color of law to force my compliance with some purported requirement.

Yes, I realize that I could do jail time, get pepper sprayed, or get killed in the process, so I try to do it with dignity and respect.  But I do it, and I encourage everyone else to do the same.  If all of us do that, the IRS agents and others in government inclined toward criminal behavior will start behaving properly.

And, in the end, one must decide how to spend one's life.  I don't like fighting against government.  So I want to get off their radar, make myself relatively invisible from the standpoint of my obligations to government.  And I want to handle my obligations timely and with as little fuss as possible.

Nevertheless I admit that I have a duty as a responsible citizen from whom sovereignty flows to government.  I have the job of keeping the bastards in government honest.  So do you.  So I encourage you to keep as low a profile as you can while you amass a fortune, keep it growing, hide it the best you can to keep thieves in and out of government from stealing it, and stash away enough to demoralize your tormentors completely.  For most that means hire a competent lawyer. 

I consider it smart to spend your time building a great love and family life, doing civic duty (voting out bad guys and voting in good guys), making lots of money, learning the law and becoming disposed to using it, remaining religiously devout and loyal to truth, supporting your fellows in their adversity, and becoming all you can in this short life.  For most people it makes far more sense to pay whatever taxes you must to keep the IRS off your back, and get on with living life to the fullest.   But, if you must fight, do your best to make your adversary regret it forever.

Now,  if you have already gotten yourself into trouble with the IRS, consider subscribing to my Lawmen group, where I share my reflections and communications regarding law with subscribers, FREE.  To subscribe, send email to:

Lawmen+subscribe@googlegroups.com
(or click here).

Only I post to it, it has about 1600 subscribers, you can visit the archives and search for ideas in thousands of messages that I have posted since 1 May 2006) and most people remain subscribed because they consider it valuable, this message constituting an example of value.

 
And I encourage you to disseminate messages like this, with the attachments intact, so that others can benefit from the content.


--

 

 Bob Hurt
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Confidentiality Notice.  The Electronic Communications Privacy Act, 18 U.S.C. Ch.119 Sections 2510-2521 et seq., governs distribution of this “Message,” including attachments. The originator intended this Message for the specified recipients only; it may contain the originator’s confidential and proprietary information. The originator hereby notifies unintended recipients that they have received this Message in error, and strictly proscribes their Message review, dissemination, copying, and content-based actions. Recipients-in-error shall notify the originator immediately by e-mail, and delete the original message. Authorized carriers of this message shall expeditiously deliver this Message to intended recipients.  See: Quon v. Arch.

     Wireless Copyright Notice.  Federal and State laws govern copyrights to this Message.  You must have the originator’s full written consent to alter, copy, or use this Message.  Originator acknowledges others’ copyrighted content in this Message.  Otherwise, Copyright © 2012 by originator Bob Hurt.

     WARNING.  Bob Hurt does NOT practice law, give legal advice, or function as a licensed counselor and attorney at law.  Construe comments as conjecture or education, and NOT as legal advice.  Consult an honest, qualified attorney on all questions of law.