Everett C. Gilbertson, Sui Juris
c/o general delivery
Battle Lake [zip code exempt]
MINNESOTA STATE
In Propria Persona
All Rights Reserved
without prejudice
DISTRICT COURT OF THE UNITED STATES
JUDICIAL DISTRICT OF MINNESOTA
FOURTH DIVISION
Everett C. Gilbertson, ) Docket Number: CR-4-96-65
)
Plaintiff, ) MEMORANDUM OF POINTS AND
) AUTHORITIES PROVING
v. ) THE VOLUNTARY NATURE OF
) FEDERAL INCOME TAXES
United States, )
and Does 1-99, ) Rules 201(d), 301, 302,
) Federal Rules of Evidence
Respondents. )
______________________________)
COMES NOW Everett C. Gilbertson, Sui Juris, Citizen of Minnesota
state, expressly not a citizen of the United States, and
Plaintiff in the above entitled matter (hereinafter "Plaintiff"),
to provide formal Notice to all interested party(s), and to
demand mandatory judicial notice by this honorable Court,
pursuant to Rules 201(d), 301, and 302 of the Federal Rules of
Evidence, of this, Plaintiff's MEMORANDUM OF POINTS AND
AUTHORITIES PROVING THE VOLUNTARY NATURE OF FEDERAL INCOME TAXES,
particularly for all 3 judges who have been properly requested to
issue a Warrant of Removal from the USDC to this honorable
District Court of the United States ("DCUS"), and any single
judge who may be assigned to preside over preliminaries.
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 1 of 12
1. Evans v. Gore, 253 U.S. 245 (1920) is controlling,
notwithstanding the so-called 16th Amendment, because said
"amendment" never repealed Article III, Section 1. Repeals by
implication are not favored, on authority of the Ninth Circuit
Court of Appeals. See U.S. v. Hicks, [cite omitted] (9th Cir.,
1991). Evans has never been overturned (see Shepard's
Citations), notwithstanding a UCLA Law Review article which
alleges the contrary. See Vol. 24, No. 2, December 1976, p. 308.
2. The 16th Amendment was effectively demolished by
respondent's total silence in People v. Boxer, California Supreme
Court, case number S-030016, December 1992. This case was a
Petition for Writ of Mandamus compelling Senator-elect Boxer to
witness the material evidence which the plaintiffs had assembled
against the ratification of that proposal. The California
Supreme Court transferred the case to the Court of Appeals, for
an advisory opinion; that appellate panel denied the petition,
without explanation. However, respondent Boxer fell totally and
completely silent in the face of the affidavits of fact filed in
that case; those affidavits have now become the truth of the
case. Moreover, Boxer's silence is a fraud, pursuant to U. S. v.
Tweel, 550 F.2d 297, 299 (1977); and silence activates estoppel,
pursuant to Carmine v. Bowen, 64 A. 932 (1906).
3. Title 26, United States Code ("U.S.C."), has never been
enacted into positive law. Therefore, Title 1, U.S.C., and
Internal Revenue Code ("IRC") section 7851(a)(6)(A) both control;
specifically, the provisions of subtitle F have never taken
effect. Subtitle F contains all the enforcement provisions of
the IRC including, but not limited to, the grant of original
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 2 of 12
jurisdiction to prosecute alleged violations of the IRC. See 26
U.S.C. 7402. There are no regulations for this statute either,
thus limiting its application to federal officers, employees, and
contract agents of the United States (federal government),
pursuant to 44 U.S.C. 1505(a). Title 44, U.S.C., has been
enacted into positive law.
4. As far as the federal income tax is concerned, the only
liability statutes anywhere in the IRC (as distinct from Title
26) are found in the provisions for withholding agents [sic].
See IRC 1441, 1442, 1443, 1461, and the statutory definition of
"withholding agent" at IRC 7701(a)(16). One does not become a
withholding agent until and unless said agent accepts a valid W-4
"Employee's Withholding Allowance Certificate" (allowing
withholding). For many reasons like this, the federal income tax
is totally voluntary on compensation for services rendered.
5. The regulations at 26 CFR 1.1-1(a) thru (c) are overly
broad for imposing liabilities which are not authorized by
statute, specifically, on "citizens of the United States" [sic]
and on "residents of the United States" [sic]. The doctrine of
"implied legislative approval" cannot prevail against all the
points supra. See Old Colony R. Co. v. C.I.R., 284 U.S. 552, 557
(1932), for example. Authorities must be expressly enumerated.
The U.S. Department of the Treasury was never authorized by any
Act of Congress to extend liability for the federal income tax in
such an overly broad fashion, as is the case in said regulations.
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 3 of 12
6. The term "citizen of the United States" has its
statutory origin in the 1866 Civil Rights Act, and its
constitutional origin in the so-called 14th Amendment [sic],
which was never lawfully ratified, rendering section 4 of that
alleged amendment null and void ab initio, and permitting federal
judges, and all other federal employees, to question the validity
of the public debt. See the First Amendment; Dyett v. Turner,
439 P.2d 266 (1968); State v. Phillips, 540 P.2d 936 (1975).
Section 4 of the so-called 14th Amendment is one of the least
litigated provisions in the entire U.S. Constitution, unlike
other sections of that so-called amendment.
7. The only basis remaining for taxing the compensation of
federal judges is the Downes Doctrine, which cannot be extended
into the state zone, nor to the judges who preside on federal
courts established for the state zone. The Downes Doctrine is
obsolete and unconstitutional, because Justice Harlan was correct
in his eloquent dissent in Downes v. Bidwell, 182 U.S. 244
(1901), paraphrasing now: the limitations of the Constitution
extend to the farthest reaches of the known universe, as far as
United States (federal government) employees are concerned. The
Downes Doctrine has permitted a serious tear to rip the entire
fabric of Our constitutional Republic, as manifested by the
controversy now swirling about the proper distinction between the
USDC and the DCUS, their respective subject matter(s), and their
respective territorial jurisdiction(s).
8. The Downes Doctrine was attacked properly In re Grand
Jury Subpoena Served on New Life Health Center Company, USDC,
Tucson, Arizona, case number GJ-95-1-6, but United States
District Judge John M. Roll exceeded his discretion in that case
by failing to rule on numerous proper and timely motions which
were before him, including a formal challenge to the
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 4 of 12
constitutionality of the Downes Doctrine. Judge Roll committed
over 100 felonies in that one case alone, and a proper judicial
complaint has been filed against Judge Roll, pursuant to 28
U.S.C. 372(c). See Ninth Circuit docket number assigned to that
complaint, available from the Clerk of the Ninth Circuit in San
Francisco, California state. All pleadings, exhibits, and
related documents filed in that case are incorporated here by
reference, as if set forth fully herein, pursuant to Rule 201(d)
of the Federal Rules of Evidence, and the Full Faith and Credit
Clause. See Supremacy Clause; Seventh Amendment; FRCP Rule 38.
9. Title 31, U.S.C., has been enacted into positive law,
pursuant to Title 1, U.S.C., but the "Internal Revenue Service"
[sic] ("IRS") is not listed in the organizational structure of
the U.S. Department of the Treasury. The only mention is an
authority for the President to appoint the General Counsel for
the "Internal Revenue Service" [sic]. This mention is
insufficient to identify the true organizational situs of the
"Internal Revenue Service."
10. The "Internal Revenue Service" has now been proven to
be an alias for Trust #62, which is domiciled in Puerto Rico
under the Federal Alcohol Administration ("FAA"), but the FAA was
declared unconstitutional in the year 1935 by the U.S. Supreme
Court. The FAA had its historical roots in Prohibition, which
was motivated by the goal of monopolizing automotive fuels for
the benefit of the petroleum cartel. See the Volstead Act and
the attached Affidavit of author Paul Andrew Mitchell,
summarizing this motive; said Affidavit is incorporated by
reference as if set forth fully herein. See also The Cooper File.
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 5 of 12
11. Taxing the compensation of federal employees creates an
unnecessary and deceptive bureaucracy, the primary purpose of
which is to skim money from the U.S. Treasury, for the benefit of
foreign banks and their alien owners. Congress should advertise
the "real" compensation paid to federal employees, and exempt
them from filing returns and from paying taxes on an "inflated"
salary, only a part of which the federal employee ever sees. For
this reason, the Public Salary Tax Act should be repealed,
because its deceptive purpose is unconstitutional.
12. The court of original jurisdiction to prosecute
violations of the IRC is defined in a statute which is found in
subtitle F. See 26 U.S.C. 7402. Subtitle F has never taken
effect because Title 26 has never been enacted into positive law.
For this reason alone, criminal prosecutions of alleged IRC
violations are legally impossible, and they create a massive tort
liability for the United States (federal government). See People
v. United States et al., DCUS, Billings, Montana state, as a
foundation for quantifying the real damages which have already
been done by the U.S. Department of Justice to untold numbers of
American Citizens (read "Citizens of one of the States United").
13. All United States (federal government) actions, civil
and criminal, which were done under authority of the Secretary of
the Treasury during Lloyd Bentsen's tenure in that office, were
ultra vires because he violated the U.S. Constitution when he
voted to increase the pay for that office, as a U.S. Senator, and
then he vacated his Senate seat to claim the office of Secretary.
However, Lloyd Bentsen was not eligible for that office until the
end of his last Senate term. See Article I, Section 6, Clause 2.
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 6 of 12
A FOIA request for a list of all civil and criminal cases
which were brought under his watch has not been answered to date.
This, again, has created a massive tort liability for the United
States (see point 12 above). Failure to answer this FOIA is
tantamount to fraud and obstruction of justice, not to mention a
host of other criminal torts. See IRC 7401 for the implications;
see also USA v. One 1972 Cadillac Coupe De Ville, 355 F.Supp.
513, 515 (1973). Failure to place proof of requisite
jurisdictional facts in the court record, when specifically
denied, is fatal to any court action. However, IRC 7401 is also
found in subtitle F of the IRC (see discussion at point 3 supra).
14. Lloyd Bentsen was unable to delegate any authority
downwards during the period in which he claimed to occupy the
office of Secretary of the Treasury. This disability has meant
that all tax assessments which were made by the Internal Revenue
Service (as opposed to voluntary taxpayer self-assessments) were
ultra vires per force, because the assessment officers could not
exercise any delegated authority. See U.S. v. Brafman, 384 F.2d
863, 867 (5th Cir. 1967) for a court authority holding that
assessment officers must sign assessments before they can be
valid; without delegation of authority, the signatures are not
those of assessment officers. Lex non cogit impossibilia. The
IRC defines the term "Secretary" to mean the "Secretary of the
Treasury or his delegate"; without delegation, there can be no
delegates. Without an authorized officer to head the U.S.
Department of the Treasury, there can be no Secretary of the
Treasury, and hence no Secretary whatsoever, under any
circumstances. Delegation was, therefore, impossible.
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 7 of 12
15. The Appointment Affidavits signed by IRS employees are
unconscionable contracts, because they express the employees'
contractual commitment to support the U.S. Constitution;
however, it is quite simply impossible for Citizens to enforce,
and it is also impossible for public employees to obey, their
solemn oaths to support the U.S. Constitution, if the weight of
material evidence now proves that the exact provisions of that
Constitution are still in doubt, for any reason. See discussion
of 14th and 16th amendments [sic] supra; also People v. Boxer
supra. This question concerning the equitable nature of Oaths of
Office was specifically raised in People v. Boxer.
16. Again, the respondents In re Grand Jury Subpoena supra
properly and timely raised this objection, when the first
Appointment Affidavit was produced by the "Special Agent" in that
case, in response to a proper request brought under the Freedom
of Information Act ("FOIA"); but U.S. District Judge John M.
Roll abused his discretion by failing to rule on that motion and
decided instead to commit over 100 felonies, including but not
limited to 28 counts of obstructing mail, 28 counts of jury
tampering, 28 counts of obstruction of justice, and 28 counts of
conspiracy to commit all of the above. Judge Roll did, however,
rule that the USDC is not the proper forum to bring a request
under the Freedom of Information Act ("FOIA"). See 5 U.S.C.
552(a)(4)(B). If the USDC is not the proper forum to bring a
request under the FOIA, then neither is it the proper forum for
prosecuting any criminal violations of Title 18, U.S.C. See 18
U.S.C. 3231, and rules of statutory construction in Title 1,
U.S.C. Singular and plural refer to the same entity always.
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 8 of 12
Title 1, U.S.C., has been enacted into positive law. See
Supremacy Clause. The Administrative Office of the United States
Courts has alleged, in writing, that U.S. District Judge John M.
Roll is an Article III judge.
17. U.S. Rep. Barbara Kennelly has admitted, on House
stationery transmitted through the United States Postal Service
("USPS"), that the term "State" at IRC 3121(e) is restricted to
the named territories and possessions, and does not include the
several States of the Union. She put this admission in writing,
after first consulting with "experts" in the office of the
Legislative Counsel, and also in the office of the Congressional
Research Service. Rep. Kennelly's admission provides absolutely
stunning support for the main (and highly controversial) thesis
of a book entitled The Federal Zone: Cracking the Code of
Internal Revenue. Not long after publication of the printed
first edition in 1992, the Supreme Court of the United States
utilized the term "federal zone" as a household word in their
sweeping decision in U.S. v. Lopez, 115 S.Ct. 1624 (1995),
Kennedy concurring. The term "federal zone" now has a permanent
place in the history of American constitutional jurisprudence.
18. In 1953, Mr. Dwight E. Avis, head of the Alcohol and
Tobacco Tax Division of the Bureau of Internal Revenue, made the
following remarkable statement to a subcommittee of the Committee
on Ways and Means in the House of Representatives:
Let me point this out now: Your income tax is 100 percent
voluntary tax, and your liquor tax is 100 percent enforced
tax. Now, the situation is as different as day and night.
[Internal Revenue Investigation]
[Committee on Ways and Means]
[Feb. 3 thru Mar. 13, 1953, emphasis added]
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 9 of 12
19. In 1971, the following quote was found in the IRS
instruction booklet for Form 1040:
Each year American taxpayers voluntarily file their tax
returns and make a special effort to pay the taxes they owe.
[emphasis added]
20. In 1974, Donald C. Alexander, Commissioner of Internal
Revenue, published the following statement in the March 29 issue
of The Federal Register:
The mission of the Service is to encourage and achieve the
highest possible degree of voluntary compliance with the tax
laws and regulations ....
[Vol. 39, No. 62, page 11572]
[emphasis added]
21. One year later, in 1975, his successor, Mortimer Caplin
authored the following statement in the Internal Revenue Audit
Manual:
Our tax system is based on individual self-assessment and
voluntary compliance.
[emphasis added]
22. In 1980, yet another IRS Commissioner, Jerome Kurtz
(their turnover is high) issued a similar statement in their
Internal Revenue Annual Report:
The IRS's primary task is to collect taxes under a voluntary
compliance system.
[emphasis added]
23. Even the Supreme Court of the United States has held
that the system of federal income taxation is voluntary:
Our tax system is based upon voluntary assessment and
payment, not upon distraint.
[Flora v. United States, 362 U.S. 145]
[emphasis added]
The dictionary defines "distraint" to mean the act or action of
distraining, that is, seizing by distress, levying a distress, or
taking property by force.
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 10 of 12
24. IRS Publication 21 is widely distributed to high
schools. It acknowledges that compliance with a law that
requires the filing of returns is voluntary. At the same time,
it suggests that the filing of a return is mandatory, as follows:
Two aspects of the Federal income tax system -- voluntary
compliance with the law and self-assessment of tax -- make
it important for you to understand your rights and
responsibilities as a taxpayer. "Voluntary compliance"
places on the taxpayer the responsibility for filing an
income tax return. You must decide whether the law requires
you to file a return. If it does, you must file your return
by the date it is due.
[emphasis added]
VERIFICATION
I, Everett C. Gilbertson, Sui Juris, hereby verify, under penalty
of perjury, under the laws of the United States of America,
without the "United States", that the above statements of fact
are true and correct, to the best of My current information,
knowledge, and belief, so help Me God, pursuant to 28 U.S.C.
1746(1).
Dated: ______________________________
Respectfully submitted,
/s/ Everett C. Gilbertson
_____________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 11 of 12
PROOF OF SERVICE
I, Everett C. Gilbertson, Sui Juris, hereby certify, under
penalty of perjury, under the laws of the United States of
America, without the "United States," that I am at least 18 years
of age, a Citizen of one of the United States of America, and
that I personally served the following document(s):
MEMORANDUM OF POINTS AND AUTHORITIES
PROVING THE VOLUNTARY NATURE OF
FEDERAL INCOME TAXES:
Rules 201(d), 301, 302, Federal Rules of Evidence
by placing one true and correct copy of said document(s) in first
class United States Mail, with postage prepaid and properly
addressed to the following:
Henry Shea
United States Attorneys
110 South Fourth Street
Minneapolis, Minnesota state
Attorney General
Department of Justice
10th & Constitution, N.W.
Washington, D.C.
Solicitor General
Department of Justice
10th & Constitution, N.W.
Washington, D.C.
Dated: __________________________________
/s/ Everett C. Gilbertson
__________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Memo of P & A on Voluntary Nature of Federal Income Taxes:
Page 12 of 12
# # #
Return to Table of Contents for
U.S.A. v. Gilbertson, District Court