LIBERTY
YOUR RIGHT TO MAKE A LIVING
 

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"Jim Carter jcarter@snappyisp.com
INTRODUCTION

        The following article, written in three parts, presents, in the
author's mind, how the IRS has and does perpetrate a colossal fraud on
the United States citizens.

         Part 1   details the methodology used by the federal courts and
the Department of Justice to prevent any legal challenge to the income
tax from being brought before the court in income tax cases.  The
method, in violation of our most basic constitutional right, has been
held to void any claim of jurisdiction in non-tax cases.

         Part 2   shows a citizen's Right to Liberty secured by the
Constitution has been repeatedly adjudicated to include the right to
pursue a livelihood and that such a fundamental constitutional right is
not a suitable object for taxation. Any attempt to assert this defense
is prevented by the situation in Part 1.

         Part 3   analyses the cases of Springer, Pollock, and the 16th.
Amendment which are the three items consistently claimed to authorize a
tax on wages and salaries. It is concluded they have been misrepresented
for decades to claim the issue of a tax on wages/salaries has been
adjudicated/determined. The misrepresentations are suggested to border
on fraud. The income tax imposed on an individual's wages or salary is a
bald faced sham without any claim to acceptable legal judicial procedure.

         Part 4   presents a generic Motion to Dismiss Indictment for a
willful failure to file case based on the legal points in Part 1.

 
 
 

PART 1:  IS THE INCOME TAX LEGALLY ENFORCED ???

     The citizens are continuously assured by courthouse edifices, by
government press releases, and by judges that the rule of law is
providing justice and the public's constitutional rights are being
protected.   Is it possible this conclusion might be erroneous? Allow me
to string some legal points together so you can make your own judgment.

     The Fifth Amendment mandates that all judicial proceedings must
proceed by due process. Since all judges take an oath of office to
uphold the Constitution, and the Supreme Court has additionally held
that government employees who violate any law in the performance of
duties do not represent the government, should we conclude that
adjudication that is not within constitutional requirements nullifies
any claim to jurisdiction? Sure it does. This is the only guarantee that
a court of admiralty, a star chamber proceeding, a kangaroo court, or an
arbitrary proceeding by whatever name does not occur. That court
proceedings must be within constitutional provisions has been forcefully
established by the Supreme Court. Muskrat v United States, 219 US 346
(1911); Smith v US, 360 US 1 (1958) .

     Other adjudication has been more direct: "A judgment rendered in
violation of due process is void." World Wide Volkswagen v Woodsen, 444
US 286, 291 (1980); National Bank v Wiley, 195 US 257 (1904); Pennoyer v
Neff, 95 US 714 (1878), and "...the requirements of due process must be
met before a court can properly assert in personam jurisdiction." Wells
Fargo v Wells Fargo, 556 F2d 406, 416 (1977). The legal encyclopedia
Corpus Juris Secundum informs us in volume 16D, section 1150 on
Constitutional Law: "Only by due process of law may courts acquire
jurisdiction over parties." 16D CJS Const. Law, 1150.

      Due process requires the movant initiate a cause of action by a
complaint, information, or indictment that establishes a legally
mandatory rebuttable presumption---a prima facie case.  Criminal process
must allege every essential element of the offense.  Hagner v US, 285 US
427;  Hamling v US, 418 US 87. Due process protects "the accused against
conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged."   In re
Winship, 397 US 358, 364 (1970).  The movant must aver the defendant was
legally required to perform, or not perform, a specific act and that the
defendant did, or did not, perform the stated act. The only issues that
are before the court are the disagreements between the indictment or
complaint and the response (the pleadings).   Lack of a
charge/notification that the defendant is legally responsible for a tax,
and the opportunity to present a defense, is a basic requirement of due
process. The violation of a basic constitutional mandate does not vest
jurisdiction in the court.  "If this requirement of the (Bill of Rights)
is not complied with, the court no longer has jurisdiction to proceed. 
The judgment of conviction pronounced by a court without jurisdiction is
void, and one imprisoned thereunder may obtain release by habeas
corpus."  Johnson v Zerbst, 304 US 458, 468 (1938).

     These legal points are basic fundamental tenants of pleading that
any first year law student must learn. The provision dates from the
Magna Carta: "No freeman shall be taken, or imprisoned, or disseised, or
outlawed, or exiled, or anywise destroyed, nor shall we go upon him, nor
send upon him, but by...the law of the land." To be sure, "due process"
is the evolutionary heir to "law of the land." Buchalter v New York, 319
US 427 (1943); Bartkus v Illinois, 359 US 121 (1959);  ref. The
Constitution of the United States of America, United States Printing
Office (1973), p 1137-1145.  Due process is violated if a practice or
rule offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.  Snyder v
Massachusetts, 291 US 97, 105 (1934).  After reciting several
constitutional restrictions that can be side-stepped, the court
declares: "What may not be taken away is notice of the charge and an
adequate opportunity to be heard in defense of it."  id 105. Of what
value is process if it does not charge the defendant with a crime?

     The Supreme Court has been very specific: The district court's
jurisdiction for revenue cases must pertain to a law providing in its
terms for revenue which is directly traceable to the constitutional
power to lay and collect taxes. US v Hill, 123 US 681, 686 (1887).
Defendants have written volumes on the inconsistent adjudication that
the income tax is an excise tax, a direct tax, or is empowered by the
16th. Amendment. When inadequate pleadings are challenged, due process
requires the government to establish the authority for a tax, and
whether it is an excise, a duty, a direct tax, or is authorized by the
16th Amendment. "Plaintiff's implied essential allegation that the right
sought to be enforced is consonant with the constitution, when denied,
constitutes a primary issue of law, which must be determined at the
outset of litigation." 71 CJS, Pleading 516. Whether these conditions
are enforced upon the IRS is an open question.

     An indictment for willful failure to file income tax returns (26 USC
7203) relies upon the phrase "as required by law." What law?    "As
required by law" is a legal conclusion.  Legal conclusions are not
acceptable in criminal process.   Notification of legal responsibility
is "the first essential of due process of law." Connally v General
Construction Co., 269 US 385, 391 (1926). If there is no legal
requirement for an individual to pay a tax, the citizen is free to do as
he wishes. Flora v US, 362 US 145 (1959). It is a "well-settled rule
that the citizen is exempt from taxation unless the same is imposed by
clear and unequivocal language, and that where the construction of a tax
law is doubtful, the doubt is to be resolved in favor of those upon whom
the tax is sought to be laid..." Spreckles Sugar v McClain, 192 US 397
(1904).    The 26 USC 7203 declaration that "Any person required under
this title to pay any...tax..." or go to jail applies to any of 80
taxes; it does not give identification or suggest legal responsibility
of any tax being pursued.  It is a power, not an authorized purpose.
Lack of a challenge by the defendant in the face of denial of basic due
process requirements---in the record---does not vest jurisdiction in the
court. Smith v US, 360 US 1 (1958).

     A complaint filed to enforce an IRS summons is also deficient. 26
USC 7602, the only statute listed in the complaint authorizes the IRS
to issue a summons. This is again a power that is applicable to all
revenue taxes; it is not an authorized purpose. Ref. Boyd v US, 116 US
616, 627 (1886). If the history of 7602 is traced through the 1954 code
rewriting that made "no material change," all three source paragraphs
incorporated into 7602 required the object of the summons be shown
"liable by law."  Due process requires the IRS aver a law that imposes a
lawful responsibility for filing tax forms.

     The legislated purpose for the Secretary is to "collect the taxes
imposed by the internal revenue laws." 26 USC 6301. The IRS has eighty
or so taxes they enforce. Legal liability for all of them ---except the
income tax---is clearly stated; i.e., 26 USC 4061, 4071, 4081, 4091
etc. A complaint that lists only the power of a summons has not averred
an authorized purpose as required by the LaSalle and Powers cases. Any
motion to protest is ignored.

     The Englishman William Pitt, Earl of Chatham, made an eloquent
contrast of authority and power 200 years ago in Parliament: "The
poorest man may in his cottage bid defiance to all the forces of the
Crown. It may be frail; its roof may shake; the wind may blow through
it; the rain may enter; but the King of England may not enter; all his
force dares not cross the threshold of the ruined tenement." If society
has regressed to where power alone is sufficient for government action,
we have a police state.  If power alone is sufficient, our lives are in
jeopardy if we pique a police officer.

     Various subterfuges are used by the courts to avoid a defendant's
demand to evidence a law declaring the legal liability of a citizen. If
the defendant brings the discrepancy to the attention of the court in an
action to enforce a summons, the court responds that the summons is to
determine the liability from the defendant's books and records. The
court has made a play on words. It has corrupted the attempt to
determine a legal liability that must be determined before adjudication
into a question of factual liability that is determined as a result of
adjudication.

     The court will even say "Respondent argues that the Federal
Government does not have the authority to levy and collect income taxes
from individuals." You had merely asked to see their authority and they
won't show it to you. They say in effect: "We have the authority and we
don't have to show you." The court will then impose fines for raising
such a "frivolous" issue.

     Tax court is the epitome of subterfuges. Tax court is an Article II
agency of the Executive branch of government staffed with IRS agents
akin to a zoning board; it is not an Article III Judicial court. You are
not entitled to a trial by jury, it is not empowered to hear challenges
to the tax code, you are guilty as accused and must prove your
innocence, and you, as a petitioner, cannot challenge jurisdiction. The
public is informed that the 90 day letter of deficiency must be
challenged by Petition to tax court or paid in full then file a Petition
in district court for a refund.  Either action places the burden of
proof on the citizen. If the unchallenged 90 day letter becomes a debt
as represented, it would be a forbidden Bill of Attainder---a punishment
imposed without adjudication. If you do not volunteer to forfeit your
constitutional rights, the only way to challenge an IRS assessment is
after seizure. If a seizure is made without prior adjudication or
hearing in the administrative tax "court", subsequent adjudication
successfully faulting the assessment places the burden of proof on the
IRS, before a jury, for the first time, but this option is carefully
concealed.

     Although theoretically possible, the overturning of IRS seizures by
this method would impose tremendous trauma and strip the citizen of
living provisions and financial means to fight the IRS, but it is the
only way to get a jury trial in a civil case. Your Fourth Amendment
right "to be secure in their persons, houses, papers, and effects"
[compare with the earlier Magna Carta quotation] from government seizure
has been nullified by writing tortuous procedures to allow a challenge
that preserves remnants of your constitutional rights only after
seizure--as a government expediency. It was King John's expediency that
annoyed the barons. The Fourth Amendment was not demanded to prevent
seizure in crimes of violence or from a neighbor's complaint; it was
written to prevent general warrants and writs of assistance used for
summary tax confiscation made by King George.   Boyd v US, 116 US 616. 
Does the Supreme court really believe the fundamental principle of
constitutional construction is that effect must be given to the intent
of the framers? Ref. Whitman v Oxford National bank, 176 US 559 (1899).
Or "that which violates the spirit of the constitution is as much
unconstitutional as one that violates its letter"? Sinking Fund Cases,
99 US 700 dis op. Perhaps principles are to be enforced on states and
municipalities but the federal self-proclaimed necessity to provide
imagined public benefits overrides constitutional restrictions.

        As citizens are required to sign IRS forms under threat of
perjury and to produce books and records pursuant to court order, it is
apparent that the words of the Supreme Court have been forgotten.  "(I)t
is elementary knowledge that one cardinal rule of the court of chancery
is never to decree a discovery which might tend to convict the party of
a crime, or to forfeit his property.  And any compulsory discovery by
extorting the party's oath, or compelling the production of his private
books and papers, to convict him of crime or to forfeit his property, is
contrary to the principles of a free government.  It is abhorrent to the
instincts of an Englishman; it is abhorrent to the instincts of
American. It may suit the purposes of despotic power; but it cannot
abide the pure atmosphere of political liberty and personal freedom."
Boyd v United States, 116 US 616, 631-632 (1886).  The compelled
production of books and records to avoid self evidencing arbitrary
assessments (90 day letters ?) was the prime issue in Boyd and has not
been overturned. Chancery was not a criminal court. It is unknown how
forms that must be signed under threat of perjury are compatible with
this holding. The courts do enforce an IRS summons for which you must
appear before the IRS with your books and records.  After that...

     The IRS will argue before the jury in an Article III court (who are
prescreened by the IRS before jury call) that the defendant filed 1040's
in previous years, and he knew he had to file for the missing years.
They ignore the succinct quotation from Lord Camden by the court: "If it
is law, it will be found in the books; if it is not to be found there,
it is not law." Boyd v US, 116 US 616,627 (1886).

     Even letters to your congressman requesting the statute imposing
legal liability, forwarded to the IRS for answering, respond that this
is a question for a court to decide. If the citizen is expected to
comply with the law, shouldn't they be informed of the law before being
dragged into court? Several sections of the IRS code include phrases
such as "any person made liable" or "every person liable" must do thus
and thus. Who is liable? Not a clue.

     Title 26 USC 7701(a)(14) defines a "taxpayer" as a person who is
legally required to pay a tax. A person who is not legally required by
an unambiguous statute to pay a tax is not a taxpayer. Spreckles Sugar v
McClain (1904), 192 US 397; Miller v Standard Nut Margarine, 284 US 498
(1931); Gould v Gould, 245 US 151 (1917). Further, the IRS does not have
authority over any individual who is not a taxpayer, or is claimed to be
a taxpayer, or holds information on a putative taxpayer. Botta v
Scanlon, 288 F2d 504 (1961); Economy Plumbing v US, 470 F2d 585 (1972).

     A signature on a tax form that asks for the "taxpayer's name",
"taxpayer's address", or "taxpayer's signature" is sometimes suggested
to certify the signer is a bona fide "taxpayer" and the only remaining
question is the extent of his factual liability. The signer may be
qualified to certify the facts on the document, but cannot be assumed to
be qualified to certify as to the law.

     The tables listing percentages calculated for the taxpayer's
convenience (26 USC 1) are also suggested to impose liability . The
tables are for "taxable income." Taxable income relates only to
taxpayers. What converts a sovereign citizen into a mere taxpayer
subject to the IRS? {Question: Is it the position of the IRS/courts that
anyone who uses the tables acquiesces to the status of 'taxpayer'? If
so, the status cannot be applied to a non filer. It is interesting to
note that historic versions of Section 1 contained phrases such as
'every person' and 'every individual' which could arguably be read to
impose liability. Why have these phrases been removed? To remove the
possibility of averring a law imposing liability and exposing the law to
a challenge?}

     Let's be candid. "Taxpayer" is substituted for your name as soon as
the IRS/court looks at you, as in "the taxpayer's failure to file income
tax forms..." The courts and the IRS interchange "taxpayer" and
"citizen." Motions to protest are ignored. This hardly seems compatible
with declarations that enforcement of a revenue summons "is not (to be)
in derogation of any constitutional right." US v Euge, 444 US 707, 711,
718 (1980); Upjohn v US, 449 US 383, 398 (1980). Such as a right to know
the law imposing liability for a tax?

     There is no statute imposing legal liability for the income tax. If
the law exists, wouldn't the IRS be averring it in their pleadings? The
absence of a law imposing legal responsibility in an indictment or
complaint for the income tax is a denial of due process. A rule 12
(b)(2) motion that the pleading does not charge an offense/ show
jurisdiction in the court may be made at any time in criminal cases or,
in civil cases, a motion to dismiss for want of jurisdiction/ failure to
state a claim upon which relief can be granted (rule 12b) would put the
question in the judge's lap.   "When the existence or the content of a
law is called into question, the court must necessarily decide the
question the same as it decides any other question of law."  Walnut v
Wade, 103 US 683, 689 (1880) .  Lots of luck. Be prepared to see a
government based on a rule of man rather than a rule of law.

     Attorney Thomas Carley recently made appeal in three different
circuits noting the absence of a law imposing liability in income tax
pleadings. The appellate courts cited section 1 of Title 26 as
authority, ridiculed Carley's "frivolous" appeal and imposed personal
sanctions. By what figment of justice can an appellate court rely upon a
law that is not averred in the pleadings? Section 1 has been previously
observed to address "taxable income" with no identification as to who is
a taxable person. "(T)he court in effect rendered judgment against him
upon a matter that was not within the pleadings and was not in fact
litigated. To do this without his consent---and the record shows no
consent---is contrary to fundamental principles of justice." Coe v
Armour Fertilizer, 237 US 413, 426 (1915).

     [The above paragraph reveals how government spin-doctors tell
half-truths on web sites.  After reading the cases, it is determined
that all three cases started in tax court.  The filing of a Petition in
tax court acknowledges the status of 'taxpayer.'    To acquiesce to the
status of taxpayer in tax court and then challenge liability in circuit
court is an absurd appeal that justifies personal sanctions.]

     It is interesting to note that other appellate courts have cited
other statutes to impose liability, but pleadings do not aver anything.
When appellate courts rely upon different statutes to enforce a law that
has not been pled, isn't this ample evidence the pleadings are a
flagrant violation of due process?

       The court has had no problem in declaring a law must be clearly
communicated to the citizen to be enforced:   "(A) statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as
to its application, violates the first essential of due process of
law."  Connally v General Construction Co., 269 US 385, 391 (1926).    In
the instant application, the government has, on innumerable occasions
and in many different forums, in both formal judicial proceedings and in
informal letters to government representatives, been requested in the
manner of civilized man, to identify the applicable law.  Their requests
have been ridiculed, shunned and sanctioned. And still the citizen is
expected to comply with a law that will not be declared?

      If jurisdiction is not pleaded in the complaint, subsequent oral or
written reference to claimed sources of jurisdiction do not suffice. 
McNutt v G.M.A.C.,  298 US 178 (1935). Nor is the prosecutor allowed to
write, or assume, provisions in a statute to obtain a conviction.  Rabe
v Washington, 405 US 313 (1972).   "(T)he record of his conviction
should show distinctly, and not by inference merely, that every step
involved in due process of law, and essential to a valid trial, was
taken in the trial court; otherwise, the judgment will be erroneous." 
Crain v US, 162 US 625, 645 (1896).   "This court has repeatedly stated
that criminal statutes which fail to give notice that an act has been
made criminal before it is done are unconstitutional deprivations of due
process of law."   Jordan v DeGeorge,  341 US 223, 230 (1951).   The
court has insisted "that the language Congress used provides an adequate
warning as to what conduct falls under its ban..."    US v Petrillo, 332
US 1  (1947).   Where the record is wholly void of any necessary element
of a crime, the case is "constitutionally infirm."  Thompson v
Louisville, 362 US 199.

     Fragmented pro se motions, unprofessional and lacking media
understanding or access, are dismissed as frivolous, and this is often
another judicial play on words. Read "not likely to be adjudicated", and
the court's words, frequently distorting or totally avoiding the real
issue raised, are the ones published in the law books and parroted by
the media.

     Proceedings in a court are legally void where there is an absence of
jurisdiction. Scott v McNeal, 154 US 34 (1894); Re Bonner, 151 US 242
(1894).  Where the record is such as would in law not confer
jurisdiction, the judgment may be collaterally impeached.  50 CJS
Judgments 524(c).  Theoretically, a claim of want of jurisdiction can
be made at any time, even by habeas corpus, but for an income tax case,
not until global warming abates (read not until hell freezes over). The
opinion of Hassett v Welch, 303 US 303 (1937) sounds real good: "If
doubt exists as to the construction of a taxing statute, the doubt
should be resolved in favor of the taxpayer" id. p314 (ref. 82 CJS
Statutes 385), but don't bet on it.

     There is an excellent reason why no statute imposes legal liability
on a citizen: if the law exists, it would be cited; if it were cited, it
could be challenged. Averments made in the indictment/complaint that are
denied in the defendant's response are the only questions before the
court. Without a citation of a legal responsibility for the income tax,
the lawful standing of the income tax is not before the court. Any
subsequent attempt to present a constitutional challenge has shifted the
burden of proof to the defendant. The reversal of the burden of proof
determines who wins. It is impossible for a defendant to prove there is
no possible way the income tax might be legal. It is a violation of due
process to put the burden of proof on the individual to show exclusion
from a tax. Unitarian Church v Los Angeles, 357 US 545 (1957). There is
some authority that the burden of proof is not reversed when a violation
of constitutional rights of the citizen are alleged.  Ex Parte Endo, 323
US 283, 299 (1944).  Indeed, there may be a heavy presumption against
validity where a right is explicitly secured by the constitution. 
Harris v McRae, 448 US 297 (1979); Capital Cities Media v Toole, 463 US
1301 (1983).  Under some circumstances, a constitutional challenge to a
statute must be made during pleading.

     If there is no requirement to plead a law imposing a tax, it is no
different than enforcing a law that does not exist. The result is
arbitrary action under color of law---a major step on the road to
tyranny.   No, it is tyranny!!!   The creation of offenses is limited
only by the originality of the prosecutor and the compliance of the
court. It has been said that taxes are the price we pay for a civilized
society. It can also be observed that extortion, under color of law, is
the hallmark of tyranny.

     Because federal courts are courts of limited jurisdiction, the
plaintiff must demonstrate that the court has been authorized to preside
over the case either by statute or the constitution. See Willy v.
Coastal Corp., 503 U.S. 131, 136-37 (1992). Whenever it appears that the
court lacks subject matter jurisdiction, the court is obligated to
dismiss the action. Fed.R.Civ.P. 12(h)(3).  U.S. v. Texas, 252 F.Supp
234, 254, (1966).

      “The dividing line between what is lawful and unlawful cannot be
left to conjecture. The citizen cannot be held to answer charges based
upon penal statutes whose mandates are so uncertain that they will
reasonably admit of different constructions. A criminal statute cannot
rest upon an uncertain foundation. The crime, and the elements
constituting it, must be so clearly expressed that the ordinary person
can intelligently choose, in advance, what course it is lawful for him
to pursue. Penal statutes prohibiting the doing of certain things, and
providing a punishment for their violation, should not admit of such a
double meaning that the citizen may act upon the one conception of its
requirements and the courts upon another.” Connally v General
Construction   269 US 385, 393.

     The IRS has recently suggested on their web site that 26 USC 6011,
6012, and 6072 are statutes that impose liability.
http://treas.gov/irs/ci/tax_fraud/docnonfilers.htm.at page 4.   If the
IRS believes this, why are the statutes not cited in pleadings as
required by due process?  The suggestion that these statutes impose
liability must be taken as an acknowledgment that pleadings for
decades---without having the sections cited---have not fulfilled the
basic requirements of due process. And their refusal to cite such
statutes upon innumerable demands in court documents, congressional
inquiries, and correspondence to the IRS itself even pursuant to FOIA,
can only be seen as a deliberate and willful effort to prevent any law
that might impose liability from being exposed to judicial attack.

       It is interesting to compare the IRS website above with the latest
Congressional Research Report identified in Part 3.  In question 8
ridiculing the "arrogant sophistry" of individuals who request
identification of a statute imposing liability,  the Congressional
Report declares IRC 1, 61, 63, 6012 and 6151 "working together, make
an individual liable for income taxes."  Oh, what a tangled web we
weave...   Even the IRS and the Congressional Report writer cannot agree.

        Would the lack of a statute averring legal liability constitute
harmless error?   Let the Supreme Court speak.  In Smith v US, 360 US 1,
the court held that a constitutional right to an indictment could not be
waived by the defendant and that a proceeding in violation of this
constitutional requirement nullified the jurisdiction of the court. (The
supreme court could not have returned the case for a new trial if
jeopardy had attached in the first trial.)  The court has additionally
stated: "It is beyond question, of course, that a conviction based on a
record lacking any relevant evidence as to a crucial element of the
offense charged violates due process." and reversed the conviction. 
Vachon v New Hampshire, 414 US 478 (1973). The instant application is
not to mere evidence as in the Vachon case; it is to accusing the
defendant of violating a law, and that accusation is never made. It is
inconceivable that there is a more 'crucial element of the offense.' 
Without an allegation that a lawful duty has been violated, there is no
offense.

     In addressing the subjection of civilians to military justice during
the civil war, the court rejected negating constitutional rights.  "Time
has proven the discernment of our ancestors; for even these provisions,
expressed in such plain English words that it would seem the ingenuity
of man could not evade them, are now after the lapse of more than
seventy years, sought to be avoided. Those great and good men foresaw
that troublous times would arise, when rulers and people would become
restive under restraint, and seek by sharp and decisive measures to
accomplish ends deemed just and proper, and that the principles of
constitutional liberty would be in peril unless established by
irrepealable law. The history of the world had taught them that what was
done in the past might be attempted in the future. The Constitution of
the United States is a law for rulers and people, equally in war and
peace, and covers with the shield of its protection all classes of men,
at all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than that
any of its provisions can be suspended during any of the great
exigencies of government. Such a doctrine leads directly to anarchy or
despotism."  Ex parte Milligan.  71 US 124 (1866).  It is submitted that
the efforts of the IRS to collect a tax unsupported by any declaration
of constitutional or statutory authority is no less an attempt to
'accomplish ends deemed just and proper' in their eyes---the expeditious
seizing of wealth to satisfy the insatiable economic federal appetite;
nor will it any less lead to anarchy or despotism. And since the IRS has
declared the law exists but refuses to plead it, ignoring the
constitutional violation only condones a deliberate contempt for the law
and constitutional provisions.

     In reversing a conviction wherein the defendant was charged under
one statute( 2) and convicted under another (1), the position of the
court was clear:   " No principle of procedural due process is more
clearly established than that notice of the specific charge, and a
chance to be heard in a trial of the issues raised by that charge, if
desired, are among the constitutional rights of every accused in a
criminal proceeding in all courts, state or federal.  If, as the State
Supreme Court held, petitioners were charged with a violation of 1, it
is doubtful both that the information fairly informed them of that
charge and that they sought to defend themselves against such a charge;
it is certain that they were not tried for or found guilty of it. It is
as much a violation of due process to send an accused to prison
following conviction of a charge on which he was never tried as it would
be to convict him upon a charge that was never made."  Cole v Arkansas,
333 US 196, 201 (1947), citations omitted.

     The present situation is not of charging the defendant under one
statute and convicting him under another; it is a situation of
convicting him under an unidentified statute---"of a charge that was
never made."   The IRS, as a standard practice, never charges any
defendant with being legally responsible for an income tax.  The present
situation is precisely the example envisioned by the court as a most
egregious violation of due process.  Defendant must be given adequate
notice of the offense charged against him and for which he is to be
tried.  Smith v O'Grady, 312 US 329 (1941).   "Conviction upon a charge
not made would be sheer denial of due process."      De Jonge v Oregon,
299 US 353, 362.  (1937)

    It is immaterial what the IRS claims on their website or what the
courts concludes in an opinion or what government spin-doctors write. 
The law imposing a legal duty upon the defendant must be within the
pleadings to give notice of the charge. Due process requires nothing
less.  Without a charge that the defendant has violated the provisions
of a statute (a citation of an authorized power is not a charge),
jurisdiction of an offense is not attached (no crime has been alleged).

        The theory that all district courts are operating as territorial
courts and not as Article III courts can be found on the internet but
offers no verifiable distinctions. Additional theories that dealing in
Federal Reserve Notes or the corporate privilege of having a checking
account is the basis for the income tax can be easily postulated, and
there are many more theories that can be conjectured or have been
rejected. Until the government avers their authority for the income tax,
there is no possibility of challenging it.  King John claimed that being
his subject was sufficient to seize the peasant's pig to feed the
troops.  The Magna Carta's requirement that property could be taken only
by "the law of the land" prevented such arbitrary confiscation.

     One well known web site contains a compilation of numerous appellate
and district court opinions that have discussed the income tax as a
direct tax, or as an indirect tax, and the inconsistency of previous
court opinions.  It appears these  judicial comments have placed the
burden of proof on the defendant.  The legal nature of the income tax
was not averred in the prosecution's pleading; it was not an issue
presented in the pleadings before the district court.  Until the IRS is
required to aver the constitutional and statutory source for their
exercised authority, challenges regarding the law, will not be
effective. Courts will not pass upon constitutional questions not raised
in the pleadings.   Korematsu v US,   323 US 214.

     Subsequent motions attacking a law that is not in the pleadings
(such as the 861 theory), except for challenges to jurisdiction, do not
make issues that can be successful on appeal. The 861 theory may be an
accurate and precise reading of the statutes, but it is being introduced
by motion, not by pleading.  (Under unimaginable circumstances, the
trial court might accept the defendant's interpretation.  So Congress
would pass another statute and reinstate the tax the following week,
retroactive?)     If the movant is not required to plead the authorizing
law, the defendant must show there is no possible way the tax can be
legal.  That is a legal impossibility, but it is the way court
procedures are structured.

     It is a legal impossibility to show there is no possible way the
income tax might be legal. The burden of proof has been reversed by
court procedure.  Until the IRS is compelled to aver their source of
constitutional authority for the income tax, we have King IRS seizing
the peasant's pig.  If the IRS can do this, let us hear no more of a
government of law or of an oath of office to uphold the constitution. 
Let us recognize that our constitutional rights have been trashed, that
the IRS is omnipotent and not restricted by the constitution or limited
to mere statutes, and we are mere peasants.

     This analysis can readily be seen to be anything but a legal brief. 
If a brief were to be derived from the above information, it could be in
four or five components:

     1.  Pleadings/criminal process by the IRS in pursuit of income tax
cases do not aver any statute imposing legal liability for the tax. 
That the IRS would cite statutes on their web site, and appellate courts
would cite different statutes in opinions, and Congressional Reports
cite even other statutes, which are all claimed to impose
liability---but are not in pleadings---makes this an incontrovertible
fact. Nor is there any identification as to the constitutional authority
for the tax.

     2.  The absence of a law and constitutional authorization for
imposing a legal responsibility upon the defendant in the pleading is an
egregious violation of Due Process.   The IRS does not charge any
defendant with being legally responsible for paying an income tax.

     3.  The denial of a fundamental requirement of Due Process voids any
claim of jurisdiction by the trial court.

     4.  Any judicial proceeding by a trial court without jurisdiction is
a nullity and is unenforceable.

     5.  Lack of jurisdiction can be challenged at any time, including
habeus corpus (for expeditious processing), by post- conviction motion,
after appeal, or after completion of sentence (to restore civil rights).

     Will the appellate courts concur with this analysis?  Do not bet the
farm on it.  Will the Supreme Court grant certiorari?   Not for two or
three cases, and certainly not without a lot of publicity.  But then
again, with so many 'tax reformers' selling advice for $20 to $7000,
maybe they do not want to rock the boat.  Capitalistic ambitions may
prevail over avowed objectives.

     If the IRS avers a law that they claim imposes the income tax,   is
there any defense that might be raised to challenge the tax??  Let us
consider the constitutional right of Liberty.
 
 

PART 2.    NO TAX ON LIBERTY

     Freedom is seldom lost overnight. In the usual setting, an
established society will tolerate the form of government to which they
have become accustomed and allow gradual encroachment on previous
sacrosanct areas under a multitude of rationale---usually with silence.
If citizens forget that they have a right, they will not be able to
assert it. Pursuit of pastimes results in relinquishing protection of
our most basic freedoms to the care of others---and a new master is
acquired.

     In the United States, lawyers have gradually filled that position.
As public schools utilize state/federal mandated textbooks that are more
concerned with social science than history, racial hegemony than
property rights, and the conceived responsibilities of government rather
than the rights of an individual, law school became the last bastion to
teach the rights of man. But even there, Miranda rights and Blevins
actions to control the local police have replaced instruction on
limiting the expansion of fabian socialism. Law schools that teach
politically incorrect concepts that restrict government may not be able
to place interns in choice federal courts or receive lucrative federal
grants. To strenuously argue economic limitations on the federal
government in tax "court" will find permission to advocate is canceled.
Such advocacy in district court will find an individual ridiculed,
smeared, sanctioned, or find the state granted privilege to pursue a
profession has been jeopardized.

     If there is any one specific right firmly entrenched in our organic
law, it is the right to Liberty as identified in the Declaration of
Independence, the Preamble to the Constitution, the Fifth Amendment, and
specifically applied to the states by the 14th Amendment. Our
forefathers succinctly identified the purpose for lawful government:
"That to secure these rights (of Life, Liberty, and the pursuit of
Happiness), Governments are instituted among Men..." Declaration of
Independence. It has been said that the rights to life, liberty, and
property are so related that the deprivation of any one of these
separate and independent rights may lessen or extinguish the value of
the others. Smith v Texas, 233 US 630 (1914).

     Liberty has been adjudicated to include a vast group of rights but
perhaps the extent of its meaning can best be visualized by observing
political systems that are considered as oppressive. In those countries
we see persecution for statements deemed unpleasant to government;
restrictions on travel; individuals and businesses that
promote/contribute to political parties receiving government favors;
housing allocated by government; and privacy from government
non-existent. Our forefathers faced only slightly less oppression: 
taxation without consent; government indifferent to public lamentations;
denial of judicial procedures/protections; arbitrary confiscation of
property under color of law; and other items witnessed in the
Declaration of Independence. With this hindsight and a desire to
formulate a descriptive encapsulation of a word, it is suggested that
the essence of liberty is freedom from government. Did I say these were
historic or other nation's problems?

     That liberty includes the right to pursue a livelihood and provide
for a family is a most profound proviso of constitutional adjudication.
Liberty "means not only the right of the citizen to be free from the
mere physical restraint of his person, as by incarceration, but the term
is deemed to embrace the right of the citizen to be free in the
enjoyment of all his facilities; to be free to use them in all lawful
ways; to live and work where he will; to earn his livelihood by any
lawful calling; to pursue any livelihood or avocation, and for that
purpose to enter into all contracts which may be proper, necessary and
essential to his carrying out to a successful conclusion the purposes
above mentioned." Allgeyer v Louisiana, 165 US 578, 589 (1897). And
again: "It requires no argument to show that the right to work for a
living in the common occupations of the community is of the very essence
of the personal freedom and opportunity that it was the purpose of the
amendment to secure." Truax v Raich, 239 US 33, 41 (1915). Greene v
McElroy, 360 US 474 (1959); Meyer v Nebraska, 262 US 390 (1923);
Butchers Union v Crescent City, 111 US 746 (1884); Grosjean v American
Press, 297 US 233 (1936): Regents v Roth, 408 US 564 (1971); Hall v
Geiger-Jones, 242 US 539 (1917); Chicago B & Q R. Co v McGuire, 219 US
549 (1911).

     Of what value is life if the individual cannot exchange the sweat of
his brow for the things that make life worthwhile? If ever there was a
fundamental right that is "preservative of all rights" (ref. Harman v
Forssenius, 380 US 528, 537 (1965) referring to the right to vote), it
is the right to make a living. What more fundamental right do citizens
have than to feed and house themselves? An individual cannot maintain
any freedom from government if the earnings of his labor are subject to
some arbitrary self-serving government assessment made in the cavernous
depths of some political bureaucracy without authorization by the
citizenry. The question of whether the fruits of an individual's labor
belonged to another resulted in a most violent period in this nation's
history. Slavery is no less reprehensible because it is a government
action.

     We are informed by various pundits that taxes consume 40 to 60% of a
citizen's wages, and increases annually. A study by the Office of
Management and Budget included in the president's federal budget
released in 1994 included projections on percentages of lifetime
earnings future generations would pay in taxes. Various alternatives
went to 82% and 93.7%. While subject to challenges and changes, just the
potential of the figures being accurate is horrifying. Reflecting on the
government propensity to understate future expenses and increase future
taxes, it may be assumed the percentage will prove to be understated. At
what percentage do we shift from peonage to slavery?

     Is it possible that a constitutional right can properly be an object
of taxation? Perhaps in the rare case where the police powers of
government are necessary to protect the health and safety of the public,
but the income tax is not a police power---it is the exercise of mere
revenue power. Even a regulatory tax involving police powers must be
closely drawn within constitutional restraints or be denied. Lockner v
New York, 198 US 45, 56 (1905); Schneider v Irvington, New Jersey, 308
US 147, 150 (1939). Nor can a valid regulatory tax be expanded to
infringe on constitutional rights. Bates v Little Rock, 361 US 516
(1960). A revenue tax on a constitutional right is summarily rejected:
"A (government) may not impose a charge for the enjoyment of a right
granted by the federal constitution."  Murdock v Pennsylvania, 319 US
105, 113 (1943). Taxes exacted as a price of exercising freedoms
protected by the constitution are presumptively invalid for "on their
face they are a restriction of the free exercise of those freedoms." id
114.  "It has long been established that a State may not impose a
penalty upon those who exercise a right guaranteed by the
Constitution."  Frost & Frost Trucking Co. v. Railroad Comm'n of
California, 271 U.S. 583. If it were otherwise, all constitutional
rights could be taxed out of existence.

     Taxation has been adjudicated to be a matter of sovereignty, and
that over which the government is not sovereign is not a suitable basis
for taxation. McCulloch v Maryland, 17 US 316 (1819). The U.S.
Constitution is accepted as a grant of authority to the government from
the people and any authority not granted is retained by We the sovereign
people. Adkins v Children's Hospital, 261 US 525, 559 (1923). If the
right to pursue a livelihood is retained by "We the [sovereign] people,"
how then does the government acquire the necessary sovereignty to make
the pursuit of our livelihood a suitable object for taxation? A
sovereign is not subject to taxation. Pittman v Home Owners Loan, 308 US
21 (1939).

      The court has recognized the power to tax is "the power to control
or suppress its enjoyment." Murdock v Pennsylvania, 317 US 105, 112
(1943). The Bill of Rights specifically enumerates areas forbidden to
the federal government; they are reserved and secured for the people. A
tax upon any right secured by the Bill of Rights would require
relinquishing control of that right to the government. We the people do
not desire to relinquish control of our livelihood nor are we aware of
any such action in the past.  Acquiescence in loss of fundamental rights
will not be presumed.  Johnson v Zerbst, 304 US 458, 464 (1938); 
Brookhart v Janis, 384 US 1, 4 (1966); Ohio Bell v. Public Utilities
Commission, 301 U.S. 292 (1936).  "Waivers of constitutional rights not
only must be voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely
consequences."  Brady v US, 397 US 742, 748 (1970).

     Perhaps the concept escapes the casual observer: the right to trial
by jury cannot be conditioned upon the payment of $10,000 in advance to
defray the costs of the trial; an annual fee of $3000 cannot become a
condition to keep a rifle in the house; the right to security of papers
in a home or of the freedom of the press cannot be conditioned to only
papers that do not contain unpleasant remarks about the government; the
assistance of counsel is not conditioned to an ability to pay; the right
to cross a state boundary cannot be taxed. Crandall v Nevada, 73 US 35
(1868). "The right...is too precious, too fundamental, to be so burdened
or conditioned." Harper v Virginia, 383 US 663, 670 (1966). Surely the
right to vote in the Harper case is no more precious or fundamental than
putting food on the table and a roof over your family. The $1.50
optional poll tax forbidden by the Harper court pales when compared with
the criminally enforced mandatory burden on pursuing a livelihood. "The
mere chilling of a constitutional right by a penalty on its exercise is
patently unconstitutional." Shapiro v Thompson, 394 US 618 (1969). If
conditions can be imposed on constitutional rights, all constitutional
rights can be conditioned out of existence.

     But, it might be suggested, the law was passed by the elected
representatives of the people; they were empowered to pass the
legislation and to cause its enforcement. The court declares otherwise. 
"Where rights secured by the constitution are involved, there can be no
rule-making or legislation which would abrogate them." Miranda v
Arizona, 384 US 436 (1966).        If a direct vote of the people cannot
accomplish an object, neither can an indirect vote by elected
representatives. Perhaps it might be suggested that Title 26 authorizes
a tax on wages?  The court states the priorities:  "(A) legislative act
contrary to the Constitution is not law."  Carter v Carter Coal Co., 298
US 238 (1936). ovrd on other grounds
.
     Is it possible that the exercise of a constitutional right can
properly be the basis for a criminal act? If a citizen earns dollars
exercising a constitutional right, must a percentage be surrendered to
Caesar to avoid incarceration?  Of course not. An individual cannot
become guilty of a crime for exercising his right to avoid
self-incrimination. Counselman v Hitchcock, 142 US 547 (1892); Miranda v
Arizona, 384 US 436 (1966). Nor can denying government access to a man's
house except upon presentation of a warrant be considered a criminal
act. See v Seattle, 387 US 541 (1967). Nor must speech be censored to
the tastes of government or risk sedition charges. If the exercise of a
constitutional right can become the cause for imprisonment, the
constitution has been nullified and there is no security from omnipotent
government; the constitution has become a worthless scrap of paper.
Marchetti v US, 390 US 39, 57 (1968).

     Can conditions for the exercise of a constitutional right be
imposed? Can the government properly require an individual to inform the
government of the extent and nature of the exercise of a constitutional
right (i.e., file 1040 forms, submit books and records, etc.) or risk
punitive action/incarceration? Of course not. The conditions are only a
subterfuge---a diversion of attention. It is the exercise of the
constitutional right that is the nexus of potential incarceration; it is
for its exercise that the individual risks punishment. The government's
action is a means to simplify gathering of information so the fruits of
the individual's exercise of constitutional rights can be confiscated.
If the object of taxation cannot properly be taxed, penalties for
gathering information for the (illegal) taxation cannot be sustained.

     Perhaps a rational analysis is not required. The court has flatly
rejected the imposition of a tax upon a right secured by the Bill of
Rights. Murdock v Pennsylvania, 319 US 105 (1943). Likewise a tax levied
on a federal right of interstate commerce was invalidated. McGoldrick v
Berwind-White, 309 US 33 (1940); Hood v Dumond, 336 US 525. Nor can the
exercise of religion be taxed. Follett v McCormick, 321 US 573 (1944).
Nor can the right to vote (an implied right) be taxed. Harper v
Virginia, 383 US 663 (1966). The poll tax is "a penalty imposed on those
who wish to exercise their right (and) ...the tying of its collection to
the franchise would be invalid as a charge on a very precious
constitutional right." U.S. v Texas, 252 FSup 234, 255; affirmed 384 US
155 (1966). [This eloquent district court opinion must be read !!]
Constitutional rights are not suitable objects for taxation.

     A law that "impinges upon a fundamental right explicitly or
implicitly secured by the constitution is presumptively
unconstitutional."  Mobile v Bolden, 446 US 55, 76 (1980);  Harris v
McRae, 448 US 297, 312 (1980).

     It may be suggested that the revenue from the income tax is required
by the government, or more euphemistically: "There is an overriding
government interest to uphold" or "A sound tax system is of such a high
order." (King John reportedly made similar platitudes when forced to
accept the Magna Carta; King Charles shortly before he lost his head;
King George before he lost the colonies.) It is submitted there is no
higher order, in a republic as guaranteed by article 4, section 4 of the
constitution than the rights of the people. A claim of necessity has
little sway if the constitution has any significance. "It must be
conceded that there are such rights in every free government beyond the
control of the state. A government which recognized no such rights...is
after all but a despotism...of all the powers conferred upon government,
that of taxation is most liable to abuse...the power to tax is the power
to destroy." Loan Association v Topeka, 87 US 655, 663 (1875).

     There are political forms espousing ideologies that include
government control of common occupations. We try to believe these forms
are not within the United States. If the power to tax exists, it is a
matter of indifference to the courts if the tax destroys the object of
the tax. Magnona v Hamilton, 292 US 40, 46 (1934). Whether the income
tax is destroying the secured liberty of the U.S. citizen may depend on
whether the beholder is a taxpayer or a tax beneficiary, but it is
irrelevant for adjudication. The issue is principle, not feigned necessity.

     There are those who would suggest the United States got along much
better for 165 years without a significant income tax than the last 60
years with continually heavier taxation. A significant reduction of the
tax burden is analyzed by some economic pundits to result in a great
boon for the U.S. economy. In adamant concurrence, former Secretary of
the Treasury William E. Simon repeatedly warned a deaf Congress during
innumerable hearings that the level of taxation threatens "the liberty
of the American people...that the state itself is a threat to individual
liberty." A Time for Truth, p 12, 14.  [Mr. Simon accuses the U.S. and
New York City of cooking their accounting books.  Judging from numerous
recent accounting and management fiascoes in private business, "the
government is the potent, the omnipresent, teacher which breeds contempt
for law among the people by its example."]  But the courts have wisely
declared the social/economic philosophies of Herbert Spencer---or John
Maynard Keynes or Murray Rothbard---are irrelevant to the court. The
issue is still principle. This is a constitution we are propounding.

     Our judicial system has recognized the status of the sovereign
citizen and acknowledged individuals voluntarily comply with provisions
of the tax law. Flora v U.S., 362 US 145 (1959). This individual has
decided that he no longer wishes to volunteer further and hereby claims
his constitutional rights. For that action, he cannot properly be found
guilty of a crime or be incarcerated. A law that improperly infringes on
constitutional rights is void from its inception and no person can be
obligated to obey such a law. 16A AmJur2d Constitutional Law, 203
(1998). Habeas Corpus may be used to challenge the unconstitutionality
of legislation. id 134, ref. 13 AmJur Pl & Pr forms, Hab C. 81,82.  
Federal Rule of Civil Procedure  60(b)(4) controls post trial motions (
in form of corum nobis ?) relating to void judgments. Federal Rule of
Criminal Procedure 12(b)(2) recognizes a challenge to jurisdiction at
anytime. Legal encyclopedia 46 AmJur2d Judgments, section 27, informs us
"in the absence of jurisdiction over the person, any judgment or order
the court might enter against defendant is void."  Section 31 continues
with "a void judgment is a complete nullity and without legal
effect...and is open to attack or impeachment in any proceeding, direct
or collateral...where the invalidity appears upon the face of the
record."  An interlocutory appeal may lie where jurisdiction is
nonexistant.
 
 

PART 3.   SPRINGER, POLLOCK, 16TH. AMENDMENT

         Belated apologies must be made at this point to the reader who
is not familiar with the nuances of legal jargon.  Legalese can often
turn on the legal definition of one word to convey a completely
different meaning, and splitting of hairs is the essence of
adjudication.  Familiarity with income tax history/adjudication is
assumed in Part 3.  A neophyte would do well to read the Springer, the
Boyd, and the two Pollock cases that can be found on the internet---for
starters.  Be prepared to spend several days, or months. Be wary of
government and even esteemed textbook analysis. Textbooks/articles
frequently find it easy to say Pollock held the income tax
unconstitutional, but it takes paragraphs to convey why the
over-simplification is erroneous, and more important, why the
distinction is crucial.  The impact of the 16th. Amendment is similarly
contorted; the amendment is widely believed to apply to an issue of
wages/salary and to create new taxing power. Another common
misconception is that an amendment can negate a fundamental
constitutional right.   It is of necessity to see how the supreme court
addresses these items rather than the government propaganda mills. 
There is no substitute for your own education; the truth will set you
free. The legal encyclopedias, American Jurisprudence and Corpus Juris,
can be located in the nearest law library. Our freedom is in your hands.
Hopefully the message in Part 3 will come through to the uninitiated
without being too tedious.

     Various government publications and internet sites will lead a
person to believe that every possible defense to the income tax has been
previously adjudicated. When an issue of wages/salary is made, they
invariably rely upon the cases of Springer v US, 102 US 586 (1881)  and
on Pollock, or claim that it is authorized by the 16th. Amendment. Let
us review those items to be sure we are not being mislead.

         Springer claimed the Civil War income tax was a direct tax and
unconstitutional because it was not apportioned among the states by
population and additionally claimed the seizure and selling of his real
estate without adjudication was a violation of due process. The court
observed the procedures to collect taxes included seizure by warrant
without oath which constituted conclusive evidence of the facts recited
in it. The indifference of the court is apparent: If the procedure
"involved any wrong or unnecessary harshness, it was for Congress, or
the people who make Congresses to see that the evil was corrected. The
remedy does not lie with the judicial branch of the government." id 594.
It appears the court was ready to trammel, without objection, the Fourth
Amendment right to be free of General Warrants/Writs of Assistance that
had been a major factor in the Revolutionary War---to expedite tax
collection. The constitutional prohibition against Bills of Attainder, a
punishment without benefit of adjudication, was also ignored. 
Fortunately for the public, the tax had expired many years before the
seizure and adjudication had worked its way to the Supreme Court.

     The opinion takes the bulk of discussion (eleven pages) to detail
the history and relevant points of what constitutes a direct tax,
including the observation: "It will thus be seen that whenever the
government has imposed a tax which it recognized as a DIRECT TAX, it has
never been applied to any objects but real estate and slaves." id 599,
emphasis in original. The court then held the tax was not a direct tax.

     In a concluding half-sentence, the court writes "...the tax of which
(Springer) complains is within the category of an excise or duty." id
602. There is an absolute void of discussion on the nature of an excise
or of a duty. The half-sentence is not a holding; it is a mere
observation of constitutional requirements for the tax to be valid---an
escape clause. A holding relates only to questions of law ruled upon in
trial court that are appealed, briefed and scrutinized in the appellate
court and establishes a precedent that is to be followed in future
adjudication. The issue of the tax being an excise or a duty was not
raised in trial or appellate court nor was it briefed on appeal.  In
legal terms, the statement is orbiter dicta of no precedential value.
The words may be of weight in future adjudication (referred to as 'a
guise'?), but they do not set a precedent that must be followed.
Reliance on this case as holding an income tax is an excise or a duty
has been a scam  for decades.

     The income tax was rescinded after the Civil War, was reintroduced
in the 1890's, and was challenged in Pollock v Farmers Loan, 157 US 429,
158 US 601 (1895). The Pollock challenge involved income derived from
dividends from bonds and income from rental property. The court
distinguished the issues as being a tax levied upon the income from
capital investments that the court considered different from a tax
levied on "business, privileges, or employment." id 579. The court held
the tax levied on income from capital investments was a direct tax and
unconstitutional.  Since this action would place the bulk of the
remaining tax on salaries and wages which was not the intent of
congress, the entire tax scheme on rehearing was declared invalid. id
637 (do not read unconstitutional). Pollock did not adjudicate any issue
relating to wages or salary, the issue did not have representation
before the court, it was not defended and it was not discussed in any
brief. Salaries/wages (employment) was mentioned by the Pollock court to
have previously "assumed the guise of an excise tax and been sustained
as such." id 157 US 579; 158 US 635. No authoritative citation is given
nor should we confuse a reference to a guise with a holding.  Congress
could have reinstated an income tax on wages/salaries without an
amendment to the constitution, but not upon dividends or rental income.

     Congress had realized the tremendous economic bonanza of an income
tax and submitted the 16th Amendment to the states for ratification in
1909. Subsequent adjudication declared that the purpose of the 16th
Amendment was to reverse, by legislation, the judicial action of the
Pollock court. Brushaber v Union Pacific, 240 US 1, 18-19 (1916). Since
the holding of the Pollock court related to income from capital
investments, it is submitted the 16th Amendment is irrelevant to an
issue of wages/salaries. Agreement is found in Bower v Kerbaugh-Empire,
271 US 170, 174 (1926) and  Eisner v Macomber, 252 US 189, 206 (1920).

     Concurrence of this point can also be found in Congressional
Research Service Report #84-168A, SOME CONSTITUTIONAL QUESTIONS
REGARDING THE FEDERAL INCOME TAX LAWS, updated 9/26/84, at page 8: "The
fallacy of this argument (that wages are not taxable as income) is that
the taxation of wages had never been found unconstitutional and
therefore the (16th) amendment to the Constitution was not necessary to
permit this type of taxation (on wages)." The statement is true but
misleading. The reason taxation of an individual's wages has never been
found unconstitutional is that the court has never adjudicated the issue
as subtly implied. [The report unwittingly confirms that Pollock did not
adjudicate an issue of wages. Since the report acknowledges "taxation of
wages had never been found unconstitutional," and history identifies
Pollock for its "unconstitutional" ruling which is the only case
discussed in the report, Pollock obviously did not adjudicate an issue
of wages. That leaves only Springer which simply held the income tax was
not a direct tax.]  Pollock, by convoluted phraseology, is also implied
to hold "income taxes are generally indirect taxes in the nature of
excises..." on page 3. Pollock mentions that statement as a 'guise' from
previous adjudication---without citation---but definitely did not make
such a holding. Again, by the court's own statements, the issue of
wages/salary was not before the court; it was not represented, defended,
or briefed. Discussion of an issue of wages/salary is mere dicta with no
precedential value.. The report's reliance on Pollock as relevant to a
tax on wages or salary is poorly placed.

     The Congressional Research Report was updated and revised with
release dated November 17, 1989 and titled FREQUENTLY ASKED QUESTIONS
CONCERNING THE FEDERAL INCOME TAX and again declares the 16th Amendment
is not relevant to an income tax levied on wages at page 10 and also
relies on Springer and Pollock as adjudicating an issue of wages/salary.
This deliberate misrepresentation of Springer and Pollock to members of
congress, and to the Department of Justice, by government lawyers
influenced (intimidated?) by the IRS, borders on fraud. Which side of
the border is undetermined.  Fraud or collusion can render a judgment void.

     The Congressional Research Report has been updated to December 5,
1996 and repeatedly suggests Pollock "held the tax valid on gains from
salaries" etc.  At the risk of appearing repetitive and redundant,
Pollock, by its own words, declared that these objects of the tax were
not being adjudicated; they were not briefed, represented, or defended.
How the Report has the effrontery to suggest Pollock "held the tax valid
on gains from salaries" while history remembers the case for its
unconstitutional ruling is beyond comprehension. Desperation distorts
logic.

     Sometimes the underlying consistency and simplicity of Springer and
Pollock is missed.  The Springer court declared a direct tax was
relevant only to real estate or to slaves.  The Pollock court, in
examining the rent derived from real estate, concluded the tax on rent
was in effect a tax on real estate and therefore a direct tax.

     Congress passed the Corporate Tax Act in 1909 that was merged with
the income tax provisions of the Underwood Tariff Act in 1914.
Adjudication of an individual's constitutional rights relevant to the
income tax is sparse; most income tax litigation involve corporations
and corporate privileges. Subsequent adjudication has served to blur the
distinction between the two taxes. Numerous adjudication hold
corporations are subject to an excise tax. American Manufacturing v St.
Louis, 250 US 459 (1919); Flint v Stone Tracy, 220 US 107 (1911).
Corporations, as creations of the states, receive their existence from
government as a privilege, but we are here concerned with sovereign
citizens that are exercising a constitutional right. Hale v Henkel, 201
US 43 (1906); Lehnhauser v Lake Shore Auto Parts, 410 US 336 (1972). It
is also recognized that select specific businesses of a public nature
have been deemed suitable objects of an excise tax. But this is still
far short of declaring that occupations in general are suitable objects
for a privilege tax. Such a declaration would have profound
constitutional reverberations.

     An employee "of an instrumentality of the U.S." was held subject to
an excise (privilege) tax. Graves v New York, 306 US 466, 478, 480
(1939). Taxation of recipients of government funds, either as their
employer or by another government entity (state or federal), resulted in
several cases and some taxation on intergovernmental employment was
struck down. After much adjudication over sovereignty, the issue
resulted in the Public Salary Act of 1939 that appears to be a
negotiated agreement of reciprocal taxation. If governments wish their
employees to consider employment a privilege upon which a kickback
(return) can be demanded, they may jolly well do so, but this is far
short of declaring that common citizens are to consider employment a
privilege from the government upon which an income tax can be levied.
Adjudication involving government employment or a beneficiary of
government privileges (i.e., a corporation) is irrelevant to claims
presented by this paper.

     Some sources suggest Steward Machine Company v Davis, 301 US 548
(1937) has ruled employment is subject to a tax. The second line of the
opinion identifies the company as "an Alabama corporation." The
petitioner had no standing to present a constitutional right to Liberty
nor are an individual's constitutional rights addressed in the opinion.
The court ruled the corporation was subject to an excise tax.  Brushaber
v Union Pacific, 240 US 1 (1916) also adjudicated a stockholder
challenging a corporate action. The corporation was subject to privilege
taxes.

     Can an individual be properly required to purchase that which is
already his? The concept is inane. The court has declared that the
levying of excise taxes turns on the "controlling question of whether
the (government) has given anything for which it can ask return."
Wisconsin v J.C. Penny, 311 US 435, 444 (1940). The government has not
given anything when an individual pursues a livelihood. The occasion to
pursue a livelihood existed long before government was created; it will
continue long after this government is gone; it is not a creation of the
government for which the government can ask a return. The government
does not grant or give a constitutional right; the government exists to
protect constitutional rights. Declaration of Independence, Weeks v US,
232 US 383, 392 (1914). A sovereign citizen cannot properly be required
to purchase as a mere privilege from government that which he already
possesses as a sacred right secured by the constitution.

     Perhaps it may be suggested the income tax is levied upon those who
are privileged to enjoy the benefits of government. The suggestion
witnesses a gross misunderstanding of the evolution of our government.
It is not a privilege to enjoy government; government enjoys a privilege
to have been created by our forefathers. The suggestion is a complete
reversal of the role that government is the (civil) servant of the
people and suggests that government is the master bestowing its gifts
and privileges upon the citizenry. Government has absolutely nothing to
bestow, either finances or privileges, except what it has already
received or taken from the people and the pursuit of a livelihood has
never been knowingly acquiesced by the people. The income tax does not
fulfill adjudicated characteristics of an excise tax. Agreement can be
found in Internal Revenue Manual 9781, Section 452.1.

     Can the income tax be constitutionally recognized as a duty? A
"duty" has been adjudicated to be a tax levied on imports. McGoldrick v
Gulf Oil, 309 US 414 (1940). Perhaps a much broader, non technical
meaning of duty is suggested, i.e., a responsibility. Does a citizen
have a responsibility to yield to government all that government
requests and can consume? Reflection on the voracious economic appetite
of elected and appointed officials, even when government spending
currently accounts for 50% of the GNP, makes a person apprehensive, but
the courts have stated it succinctly. A person has no responsibility to
make contributions to government in the form of taxes if government has
no right to them. Gregory v Helvering, 293 US 465 (1934). And again,
"(an individual) is entitled to carry on his private business in his own
way. His power to contract is unlimited. He owes no duty to the state or
to his neighbors to divulge his business..." Hale v Henkel, 201 US 43,
74 (1906). Payment of taxes allegedly owed to the government under
threat of prosecution when no tax is properly due is to submit to a form
of extortion under color of law.

     Can the income tax be sustained as an impost? Considering the
consistent adjudication of imposts as a tax on import merchandise [ref.
Hadden v Collector, 72 US 107 (1866)], it is believed that to mention
the possibility is to negate its potential.

     If not an indirect tax (i.e., an excise, impost, or duty), can the
income tax be recognized as a direct tax ? As previously noted, Springer
v U.S., 102 US 586(1881) went to considerable length to hold the income
tax was not a direct tax. The court noted: "It will thus be seen that
whenever the government has imposed a tax which it recognized as a
DIRECT TAX, it has never been applied to any objects but real estate or
slaves." emphasis in original.  Please note the current income tax does
not apply to real estate. Recent adjudication starting with U.S. v
Francisco, 614 F2d 617 (1980) has declared the income tax is a direct
tax relieved of the constitutional requirement of apportionment by the
16th. Amendment. Interestingly enough, they usually cite Brushaber v
Union Pacific, 240 US 1 (1916) which appears incongrous. Are such
inconsistencies what take appeals to the Supreme Court?

     If we assume, for analysis, that the 16th amendment was properly
ratified, can it negate a constitutional safeguard or nullify a
fundamental constitutional right? Of course not. The purpose for the
constitution was to put certain rights of the people beyond the grasp of
government tampering.   "The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials
and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free
press, freedom of worship and assembly, and other fundamental rights may
not be submitted to vote; they depend on the outcome of no elections."
West Virginia Bd. of Ed. v Barnett, 319 US 624, 638 (1943).   If the
government can impose a tax on a constitutional right because of the
16th amendment, then the right to trial by jury, the freedom of the
press, and each and every constitutional protection can similarly be
taxed or destroyed tomorrow by amendment; the constitution can be
totally emasculated by the mischief of congress and the state legislators.

     The issue of the amendment conflicting with constitutional
provisions of apportionment was pressed upon the Brushaber court. If the
amendment authorized a direct tax that was not apportioned, as argued by
counsel, the constitution would then conflict with itself. The court
declared the amendment did not alter or negate any constitutional
provision, nor did it conflict with itself; it only reclassified a tax
laid on income earned from capital investments as an indirect tax which,
by Pollock alone, had been declared a direct tax. id p 11-19.

     Later courts confirmed Brushaber.   In Evans v Gore, 253 US 245, the
court declared:  We have previously held the amendment “did not extend
the taxing power to new subjects, but merely removed the necessity which
otherwise might exist for an apportionment among the states of taxes
laid on income.  [i.e., what was considered a direct tax and required
apportionment before the amendment is now considered an indirect tax and
does not require apportionment.]  After further consideration, we adhere
to that view and accordingly hold that the Sixteenth Amendment does not
authorize or support the tax  (on the judge's salary.)” id 263.
(citations omitted) Overruled on other grounds. The court reaffirmed the
amendment overruled the case law established by Pollock; it did not
alter any constitutional provisions; it was not relevant to a tax on a
salary.

      But consideration of the 16th. Amendment itself is undoubtedly
irrelevant. Pollock was explicitly overruled in South Carolina v Baker,
485 US 505 (1988) which has been suggested to make the amendment
redundant. We should note South Carolina adjudicated an issue of taxes
on bonds---not an issue of wages/salaries. The 16th amendment leaves a
legacy of a non- apportioned income tax on capital investments. To avoid
a constitutional conflict over apportionment, the income tax must fall
within the parameters of an indirect tax, i.e., an excise, impost, or
duty, but it would still violate the constitutional right to liberty.

     Even with the adjudication discussed above that the 16th. Amendment
does not grant new taxing authority to the federal government, there may
be some thought that plenary power to tax the constitutional right
detailed in Part 2 is authorized.  Let us review Robertson v Baldwin,
165 US 275.  "The law is perfectly well settled that the first ten
Amendments to the Constitution, commonly known as the Bill of Rights,
were not intended to lay down any novel principles of government, but
simply to embody certain guaranties and immunities which we had
inherited from our English ancestors, and which had from time immemorial
been subject to certain well-recognized exceptions arising from the
necessities of the case." id 281. The exceptions detailed by the court
do not include a tax on an individual's earnings.

      "The first 10 amendments to the constitution, adopted as they were
soon after the adoption of the constitution, are in the nature of a bill
of rights, and were adopted in order to quiet the apprehension of many
that without some such declaration of rights the government would
assume, and might be held to possess, the power to trespass upon those
rights of persons and property which by the Declaration of Independence
were affirmed to be unalienable rights."  Monongahela Nav. Co v US, 48
US 312, 324 (1893).  And again:  "The Constitution was intended - its
very purpose was - to prevent experimentation with the fundamental
rights of the individual.... 'It is the peculiar value of a written
constitution that it places in unchanging form limitations upon
legislative action, and thus gives a permanence and stability to popular
government which otherwise would be lacking'." Truax v Corrigan, 257 US
312, 338 (1921) (internal quote from Muller v Oregon, 208 US 412).  "One
might fairly say of the Bill of Rights in general, and the Due Process
Clause in particular, that they were designed to protect the fragile
values of a vulnerable citizenry from the overbearing concern for
efficiency and efficacy ..." Stanley v Illinois, 405 US 645, 656.

      Is it possible that the securing of fundamental rights, demanded by
the citizens before acceptance of the constitution, clearly and
consistently adjudicated to be permanent inviolable guarantees secured
for the people, can be negated by an ambiguous, convoluted sentence
repeatedly adjudicated to not conflict with prior constitutional
provisions?  I think not, especially for a tax generating provision.  
"Of all constitutional provisions, the taxing authority is the most
likely to be abused by the government."   [correct quote and case will
be inserted when relocated.]   "(I)f doubt exists as to the construction
of a taxing statute, the doubt should be resolved in favor of the
taxpayer."  Hassett v Welch, 303 US 303, 314 (1938) citations omitted. 
It is submitted an amendment must be much more lucid than a statute.

      If the 16th. Amendment is claimed, in some way, to authorize a tax
levied on an individual's labor, measurable and enforced as a percentage
of the compensation of that labor, let us recognize the consequences of
such an action.  Our constitution will have been turned from an
instrument of protecting the citizens from arbitrary action by the
government into an instrument allowing any type of gainful occupation
only upon yielding to government the (arbitrary and self-serving)
percentage demanded by the government.  The distinguishing features
between this arrangement and slavery, or a feudal society, are minimal.
The entire constitution will have been perverted from an instrument of
freedom into an instrument of oppression.  The constitutional guarantee
of a Republic will have been voided. If this methodology is acceptable,
the right to trial by jury, freedom of speech, of assembly, of religion,
and all constitutional rights could be denied by the mischief of
Congress, the state legislators, and the Secretary of State. (Or are we
seeing all of this in the war on 'terrorism'?  even without a
constitutional amendment?)  This would, in very few words, effectively
repudiate the entire constitution. The constitution has provisions for
amendment; it has no provisions for repudiation.

     In summary, the amendment was passed to reverse the holding of the
Pollock court, but the court had specifically excluded wages and
salaries from the issues being considered.  Hence, the amendment is not
relevant to an income tax on wages or salaries. The Congressional
Research Reports revised over the past twenty years are in agreement
with this conclusion.  However, since a tax on wages and salaries were
not an issue appealed and being litigated by Pollock or Springer, all
statements in the opinions relating to wages/salaries are dicta; they
are not precedent setting holdings as asserted by the Research Reports.
The sole exception is that Springer held a tax on an individual's
earnings was not a direct tax. With the recognition that Pollock or
Springer did not make a definitive holding relevant to wages or salary,
there is no supreme court adjudication that has addressed a
constitutional issue of an income tax on an individual's wages or
salary, nor has a citizen's constitutional right to pursue a livelihood
as protected by the clause of Liberty been addressed. (In fact, no
federal or state court has held Liberty is not improperly infringed by
the income tax.)  In addition, an amendment cannot be used to negate a
fundamental constitutional right.

     It appears that sometime before the 1954 rewriting of the IRS code,
the defense of liberty was made to the courts by some knowledgeable
lawyer.  The unknown case was quietly buried by the courts to perpetuate
the tax. Vivian Kellums might be an interesting case to research. The
rewriting of the code removed all declarations that the defendant must
be shown liable by law.  Lawyers for the IRS, grasping for adjudication
to uphold the tax on an individual's wage or salary, misrepresent dicta
in Springer and Pollock. The courts, as Thomas Carley found out, assist
by adjudicating issues with hidden meanings and distorted applications
in an apparent concerted effort to prevent any substantive challenge to
the income tax, and will do anything necessary to prevent an
adjudication on the merits.  Of all the attributes of a representative
society, greed, manifested by taxation, is the most destructive but must
somehow be controlled when given to government.

     The paradox poised by our idealistic forefathers who established
government to protect posterity from government oppression can only be
understood in light of their unequivocal faith in a supreme being and an
awareness of the reality that only slightly less government during the
preceding eleven years offered no assurance of individual security or
economic prosperity. The question of whether government has abused the
faith of our forefathers has been repeatedly brought before the courts
over the span of 200 years; it must be again. We are forced to play
their game on their turf with their ball by their rules.  The only
question is whether they will still play by their rules.  It is obvious
that the ballot box will not accomplish the reformation necessary;
history does not evidence any nation that has relieved an oppressive tax
burden by elected tax-paid officials. Relief of a tax burden by judicial
action may be historic, but the alternative leaves posterity a very grim
future.

     The groundswell of public resentment to government inflicted burdens
and abuses has resulted in numerous pro se activists with a willingness
to risk great trauma, incarceration, and loss of possessions in a
desperate effort to determine if the citizens have any voice in how much
can be confiscated by Caesar. The IRS now identifies more than 1,000,000
individuals as tax protesters. An increasing number of litigants have
abandoned professional counsel whom they distrust and consider
ineffective and are venting their frustrations with government via
nonprofessional defenses to prosecutions and unusual actions against
public officials. Their frustration, borne of contempt of government
officials who piously assert that they know better how to spend the
earnings of the common man than does the individual who knew enough to
earn the money have led many to become martyrs within federal
confinement. They conclude it is their taxes that are financing the
government projects they find wasteful/ reprehensible/ self-destructive
and nothing will change as long as congress receives docile compliance. 
They concur with William Simon that federal spending funds a corrupt
middle-class welfare ponzi scheme of government dependent blood-sucking
leeches that exhibit the characteristic frenzy of a parasite being
separated from its host when talk turns to reducing taxation, which is
the same scenario that drove New York City into bankruptcy. Many return
home unrepentant, and tempered. And they aspire to leave their children
something besides oppressive debt, bondage, and serfdom.  "The
government that makes evolution impossible makes revolution inevitable."
President John F. Kennedy. Our nation is not without a successful tax
revolution. The small voice of the people wanting freedom from
government should be heeded; it is but a harbinger.

     "Our history is not without a successful revolution."
 
 

PART 4,   MOTION TO DISMISS (7203) INDICTMENT

      After reading the first three Parts,  interested individuals have
inquired how such a defense could be presented to the court.  A student
of criminal law, familiar with writing and serving motions, might study
FEDERAL PROCEDURAL FORMS, LAWYER’S EDITION by Lawyers Cooperative
Publishing {KF 8836, F4}. Volume 7 on Criminal Procedure includes
20:212 Defects in the Indictment or Information, 20:217 is Failure to
Charge Offense.  Volume 9 includes 22:801 regarding citation of laws,
22:927 Defects in the Indictment, and 22:938 Failure to Charge
Offense.  Conviction of a crime by an indictment that does not charge an
offense can be challenged even after completion of sentence.  See the
above.

      Presentation forms are described in West Federal Forms, volume 5
{KF8836 W4}.  7302 is titled Motion by Defendant to Dismiss
Indictment.  7308 has a motion for failure to state a crime.

      For civil procedure, Federal Rules Digest, third edition, is
informative {KF8830.1 D562}.     Sections 12b.2,   12b.21,   12b.3   make
interesting reading.

      Do not assume that reading the above information, or one or two
books on law, will make you a polished lawyer.  But then again, with the
information readily available, why haven’t professionals used it?  The
above citations are mentioned to show an individual who might be
interested what educational information is available.  For legal advice,
consult your friendly franchised barrister.

      The information in Parts One, Two and Three can be rephrased into a
generic Motion to Dismiss with a memorandum of Points and Authorities. 
Any motion has to be modified to the situation. In the writer’s opinion,
a generic paraphrasing of forms from various books leaves many options,
such as the following:
 
 

{motion style}
 
 

MOTION TO DISMISS INDICTMENT FOR FAILURE TO CHARGE AN OFFENSE

         The defendant moves the indictment be dismissed pursuant to
FRCrP 12 (b)(2) for failure to charge an offense.

                       [signed, dated, and served]
 
 

{motion style}

POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS

      The court will take judicial notice that the indictment claims the
defendant violated Title 26, United State Code, Section 7203 by reason
that he had gross income of $xxxx and that he did willfully fail to make
a tax return “as required by law.”   There is no other statute from
Title 26 mentioned in the indictment.

      The court will also take notice that 7203 is an administrative
procedure in Subtitle F, PROCEDURE AND ADMINISTRATION that is applicable
to all 80 or so taxes the IRS collects.  It does not identify what tax
is being enforced.

      There is no statute/law cited that imposes any type of legal
responsibility on the defendant.  The only law cited  (7203) is that
the IRS is empowered to punish individuals who are required to pay
taxes.  This premise is not challenged.

       It appears from a generous reading of the indictment that an
income tax is being pursued. The adjective ’income’ is found before the
noun ’tax.’   Is the defendant supposed to make some legal assumption
from that phrase?  Defendants cannot be required to make legal
assumptions from criminal process.

      In brief, the indictment does not charge the defendant with being
legally responsible for any tax.  This position has been obliquely
observed in several recent adjudication that might be best to review.

      In three appeals from tax court, Lively v CIR, 705 F2d 1017
declared a claim of “no law imposing an income tax on (Lively)” was
without merit while Ficalaro v CIR, 751 F2d 85 and Charczuk v CIR, 771
F2d 471 declared 1 and 61made the taxpayers liable for the income
tax.  Since all three citizens had petitioned tax court, there was no
indictment served nor did the ’taxpayers’ have standing to challenge the
legality of the income tax.  A petitioner to tax court cannot make such
a challenge. To file a petition in non-judicial tax court inherently
assumes jurisdiction of the ‘court’ and the legal position of a
taxpayer. That is the Roman civil law procedure that is applicable in
administrative tax court. To challenge liability for the income tax in
appellate court after acquiescence to the status of taxpayer in tax
court is an absurd appeal that justifies personal sanctions upon the
lawyer. It might be in the public interest to revoke his license. The
circuit courts only address error in the trial court (or in the case of
tax court, the hearing); appeals are not trial de nova.

      In US v Moore, 692 F2d 95, pro se Moore suggested IRC 7203 was
unconstitutionally vague and additionally failed to specify who has to
pay an income tax.  The trial court prevented such arguments from being
made to the jury and the appellate court declared IRC l and 6012(a)
made the defendants responsible for the income tax.

      In Lonsdale v US, 919 F2d 1440, the pro se action to prevent
seizure included a claim the IRS did not have power for seizure which
was rejected.   Schiff v US, 919 F2d 830 was a civil action to return
seized property.  In Glabellas v CIR, 86 F3d 609, the court addressed an
appeal from tax court of whether money was a tax payment or a deposit. 
US v Melton, 86 F3d 1153 is not published.  It appears these cases which
include a mention of liability are not germane.

      In US v Bowers, 920 F2d 220, the defendants asserted they were not
“persons” within the tax law and wage income is not taxable.  The court
declared IRC 6012 requires payment of taxes.

       While not authoritative to this court, we can observe the Treasury
Department has recently suggested several statutes impose liability on
the taxpayer:   “The Truth: The tax law is found in Title 26 of the
United States Code. The requirement to file an income tax return is not
voluntary and it is clearly set forth in the Internal Revenue Code (IRC)
Sections 6011(a), 6012(a), et seq., and 6072(a).”  
http://treas.gov/irs/ci/tax_fraud/docnonfilers.htm , page 7-8.  
{Earlier editions were at page 4.  Get a copy now}   At IRS website
http://www.irs.gov/pub/irs-utl/friv_tax.pdf , the publication THE TRUTH
ABOUT FRIVOLOUS TAX ARGUMENTS , subsection B. Contention: Payment of tax
is voluntary. declares ”the requirement to pay taxes is not voluntary
and is clearly set forth in section 1 of the Internal Revenue Code,
which imposes a tax on …” on page 4 of 32.     The same article is also
found at website http://www.ustreas.gov/irs/ci/tax_fraud/frivolous.pdf
.  {photocopies might be attached as an exhibit for the convenience for
the court}

       It can additionally be shown that the Congressional Research
Report titled FREQUENTLY ASKED QUESTIONS CONCERNING THE FEDERAL INCOME
TAX prepared for members of Congress declares IRC 1, 61, 63, 6012 and
6151 "working together, make an individual liable for income taxes."   
{another exhibit?  Your congress critter have them}

      Since different statutes are claimed by various sources to impose
legal responsibility, is there any justifiable reason why legal
liability is not declared in the indictment?  Of more importance, is the
indictment in this case, which does not include a statute declaring
legal responsibility for a tax, consistent with fundamental requirements
of due process as established by the Supreme Court?

      The inescapable conclusion is that various sources recognize the
requirement that legal responsibility for a tax must be made by statute,
and they all offer their favorite statute as the authority.  Isn’t it a
violation of due process if a taxpayer has to guess what law makes him
responsible for a tax?  A defendant cannot be required to guess what law
is being enforced.  "(A) statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law."  Connally v General
Construction Co., 269 US 385, 391 (1926).

      But the quotation misses the real point.  We are not addressing a
vague statute.  There is no ‘statute which requires the doing of an act’
averred in the indictment.  It is manifestly obvious the defendant
cannot violate IRC 7203.  The section reads:  “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 …” emphasis added.     The
requirement is clearly outside 7203; the defendant cannot violate
7203.  If the defendant is required ‘under/by this title‘, then the
punishment of 7203 can be pursued by the prosecutor.  What law
“under/by this title” requiring the payment of a tax did the defendant
violate?  There is no answer.   .  (Concurrence that legal
responsibility is outside 7203 is indicated in the circuit court
opinions, Congressional Report, and government websites detailed above.)

       Even FRCrP 7(c)(1) requires the indictment to “state for each
count the official or customary citation of the statute, rule,
regulation or other provision of law which the defendant is alleged
therein to have violated.”  Criminal process must allege every essential
element of the offense.  Evans v US, 153 US 584; Hagner v US, 285 US
427; Hamling v US, 418 US 87. Notification of legal responsibility is
"the first essential of due process of law." Connally v General
Construction Co., 269 US 385, 391 (1926).   Notification of the legal
responsibility that has allegedly been violated is not found.

      The phrase “as required by law” within the indictment is a
conclusion of law that is unacceptable in criminal process.  In Boyd v
US, 116 US 616 (1886), the court observed the succinct statement by Lord
Camden: "If it is law, it will be found in the books; if it is not to be
found there, it is not law."  id 627.  All the IRS has to do is cite
their favorite statute.

      Without a claim that the defendant is legally responsible for a
tax, the defendant has not been charged with a legal duty.  If he is not
charged with violating a legal duty, no crime has been alleged.  If no
crime is alleged, there is no case.  If there is no case, there is
nothing for this court to have jurisdiction over.   The above steps are
the fundamental requirements of due process. If due process is not
followed, the court does not have jurisdiction.  "A judgment rendered in
violation of due process is void."  World Wide Volkswagen v Woodsen, 444
US 286, 291 (1980); National Bank v Wiley, 195 US 257 (1904); Pennoyer v
Neff, 95 US 714 (1878).

      The Supreme Court, in reversing a conviction, stated:   "It is
beyond question, of course, that a conviction based on a record lacking
any relevant evidence as to a crucial element of the offense charged
violates due process." Vachon v New Hampshire, 414 US 478 (1973). The
instant application is not to mere evidence as in the Vachon case; it is
to accusing the defendant of violating a law, and that accusation is
never made. It is inconceivable that there is a more 'crucial element of
the offense.'  Without a claim of a lawful duty being violated, there is
no offense.

      The Supreme Court again reversed a conviction of a crime that was
not charged in the indictment.   "No principle of procedural due process
is more clearly established than that notice of the specific charge, and
a chance to be heard in a trial of the issues raised by that charge, if
desired, are among the constitutional rights of every accused in a
criminal proceeding in all courts, state or federal.  If, as the State
Supreme Court held, petitioners were charged with a violation of 1 [and
convicted of 2], it is doubtful both that the information fairly
informed them of that charge and that they sought to defend themselves
against such a charge; it is certain that they were not tried for or
found guilty of it. It is as much a violation of due process to send an
accused to prison following conviction of a charge on which he was never
tried as it would be to convict him upon a charge that was never made." 
Cole v Arkansas, 333 US 196, 201 (1947), citations omitted.

      The present situation is not of charging the defendant under one
statute and convicting him under another as in the Cole case; it is a
situation of convicting him under an unidentified statute---of “a charge
that was never made."   The IRS has not charged the defendant with being
legally responsible for an income tax.  The present situation is
precisely the example envisioned by the court as a most egregious
violation of due process.  Defendant must be given adequate notice of
the offense charged against him and for which he is to be tried.  Smith
v O'Grady, 312 US 329 (1941).   "Conviction upon a charge not made would
be sheer denial of due process."      De Jonge v Oregon, 299 US 353,
362.  (1937).

      Would the lack of a statute averring legal liability constitute
harmless error?   Again, let the Supreme Court address the issue.  In
Smith v US, 360 US 1, the court held the constitutional right to an
indictment could not be waived by the defendant and that a proceeding in
violation of this constitutional requirement negated the jurisdiction of
the court. (The Supreme Court could not have returned the case for a new
trial if jeopardy had attached in the first trial.)  The constitutional
right to be left alone unless charged with violating a law (the essence
of due process) is no less a constitutional right than being indicted
for an infamous crime. In fact, the Magna Carta’s protection by “law of
the land” (due process) predates the origin of the indictment.

      An indictment that does not charge a crime can not have substantive
issues modified by the prosecutor; an indictment is an emissive of a
grand jury.  Rabe v Washington, 405 US 313 (1972).

      Since a crime has not been charged, the indictment must be dismissed.

                                     [signed, dated, and served]

Jim Carter jcarter@snappyisp.com

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