Liberty Your Right To Make A Living

LIBERTY - YOUR RIGHT TO MAKE A LIVING Jim Carter [email protected] 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 halftruths 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 nonexistent. 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). overturned 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 KerbaughEmpire, 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 bloodsucking 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 [email protected]