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Date: Sun, 15 Jun 1997 19:28:01 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: David Myrland; Free Memorandum (fwd)
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>>In Re:                  		)  Ch.13
>>                          		)  Case #96-33796 DEBTOR'S 
>>David Myrland,           		)  Memorandum of Authority
>>         Debtor.           	                  )  in satisfaction
>>of Courtís
>>              Pro Se.       	                  )  Order dated
>>                          		)  "regular income" under 11
>>          v.                	                  )  v. "regular
>>income" under 26
>>                          		)  USC.
>>C.I.R.,                     	                  )  
>>        Respondent      		)
>>                                     I.  INTRODUCTION.
>>	1.1 COMES NOW, Debtor hereto, seeking to satisfy the courtís
>>Order dated February 25, 1997, wherein Debtor was instructed to clarify,
>>define, or otherwise explain a perceived ambiguity as it would pertain to
>>the term "income" for the purposes of 11 USC and for the purposes of 26
>>USC. The Courtís instruction is termed as follows:
>>          "In view of objection R (Paragraph 1.3 of the objection),
>>Debtor shall           file a memorandum of authority on the question of
>>whether an          individual can have regular income for the purposes
>>of Chapter 13 of          the bankruptcy Code (11 U.S.C.), but not for
>>the purposes of the          Internal Revenue Code (26 U.S.C.)..."
>>	1.2 In its instruction to the Debtor, the Court alluded to issue
>>"R" of his objection which Debtor presumes to mean his [tax returns]
>>filed as Exhibit F thereto (hereinafter "returns"). On said returns (line
>>#6), Debtor has claimed deductions under 26 USC 212 for property which is
>>acknowledged as a cost under 26 USC 83 and 1012. All such property was
>>indeed disposed of by Debtor in armís length transactions within which no
>>excess over said propertyís fair market value ("FMV") was derived.
>>	1.3 Debtorís conclusions reflected on his returns are derived
>>from arguments under issues (C) and (D) of his brief in support of his
>>objection to IRSí proof of claim.
>>	1.4 Debtor presumes that this point of contention is the object
>>of the Courtís [curiosity] expressed in its Order dated 2/25/97.
>>	1.5 debtor would first like to dispose of the Courtís terminology
>>used in its Order for its vagueness. The term "regular income" does not
>>provide a realm within which specific operations of 11 USC and 26 USC may
>>be examined. Within said term must fit more specific categories like
>>"profit", "cost", and "gross receipts." The ambiguity perceived by the
>>Court is the difference between profit and cost, as said terms relate to
>>Debtorís gross receipts.
>>                                        II. ISSUES AT LAW.
>>	2.1 Below, Debtor will present several issues that seek to
>>satisfy the Courtís Order for clarification. Also presented for review
>>will be simple questions that show Debtor to be on point in his
>>conclusions reflected on his returns.
>>	(A)1 As the Court observed in reading the Debtorís brief, he has
>>relied upon only statutory language for form his conclusions and issues.
>>	(A)2 Below, the Court will find excerpts from certain decisions
>>outlining the importance of legislative intent and the lack of authority
>>held by judicial officers to create exceptions thereto.
>>	(A)3 The quotes below are from the Supreme Court in Carminetti v.
>>United States, 242 U.S.  470 (1916), taken from throughout the opinion of
>>the Court.  
>>         "It is elementary that the meaning of a statute must, in the
>>first instance,          be sought in the language in which the act is
>>framed, and if that is plain,          and if the law is within the
>>constitutional authority of the law-making           body which passed
>>it, the sole function of the court is to enforce it           according
>>to its terms.  Lake County v. Rollins, 130 U.S.  662, 670,          671;
>>Bate Refrigerating Co.  v. Sulzberger, 157 U.S.  1, 33; United        
>>States v. Lexington Mill and Elevator Co., 232 U.S.  399, 409; United    
>>    States v. Bank, 234 U.S.  245, 258."
>>        "Where the language is plain and admits of no more than one
>>meaning         the duty of interpretation does not arise and the rules
>>which are to aid         doubtful meanings need no discussion.  Hamilton
>>v. Rathbone, 175 U.S.          414, 421.  There is no ambiguity in this
>>       "In [United States v. Bitty, 208 U.S.  393] this court said: "All
>>will admit       that full effect must be given to the intention of
>>Congress as gathered from       the words of the statute."
>>     "If the words are plain, they give meaning to the act, and it is
>>neither the       duty nor the privilege of the courts to enter
>>speculative fields in search of        a different meaning."
>>      "In other words, the language being plain, and not leading to
>>absurd or       wholly impracticable consequences, it is the sole
>>evidence of the ultimate        legislative intent.  See Macenzie v.
>>Hare, 239 U.S.  299, 308."
>>	(A)4 Below is the explanation of how to read a statute, as
>>articulated by Circuit Judge Magill, in the case of Security Bank of
>>Minnesota v. Commissioner of IRS, 994 F.2d 432 (8th Cir.1993).  Most of
>>the cases that he cites will be omitted, along with specific reference to
>>particular provisions in controversy.  What is important is his
>>description of what to look for in the law and the fact that it is
>>consistent with the 1916 Supreme Court case quoted above.
>>           At pg.435: The parties provide vastly differing
>>interpretations of the           statutory language, and both contend
>>that the language clearly supports           their position.
>>          At pg.436: The Commissionerís argument has considerable force,
>>if           one focuses solely on the language of sections 1281 and 1283
>>and           divorces them from the broader statutory context.  But we
>>cannot do           that.  The Supreme Court has noted that, "the true
>>meaning of a single           section of a statute in a setting as
>>complex as that of the revenue acts,            however precise its
>>language, cannot be ascertained if it be considered           apart from
>>related sections, or if the mind be isolated from the history          
>>of the income tax legislation of which it is an integral part." (Cite    
>>       omitted) According to the Court, the construing courtís duty is
>>"to                 find that interpretation which can most fairly be
>>said to be imbedded in           the statute, in the sense of being most
>>harmonious with its scheme and            with the general purposes that
>>Congress manifested.í" (Cite omitted)            The circumstances of the
>>enactment of particular legislation may be            particular relevant
>>to this inquiry.  (Cite omitted) Finally, when there is          
>>reasonable doubt about the meaning of a revenue statute, the doubt is    
>>      resolved in favor of those taxed.  (Cite omitted) As in all cases
>>of            statutory interpretation, we must start with the text of
>>the statute.  But            we cannot simply focus on sections 1281
>>through 1283 because they           do not exist in a vacuum.  Rather, we
>>must consider the context           provided by the more general
>>statutory scheme of which [they] are a           part.  
>>            At pg.437: Thus, the statutory scheme into which [the
>>provisions] fit            shows a concern with the treatment of
>>discounted obligations.  We            find no mention in this scheme of
>>the treatment of bank loans made in            the ordinary course of
>>business. Given this context, we would expect             that if
>>Congress initially covered loans without discount, as the           
>>commissioner contends, it would provide language clearly stating such    
>>       an intention.  We next examine the statutory text to see if it
>>contains           such a clear statement.
>>         We conclude that the statutory text does not clearly cover
>>obligations            containing only stated interest.  First, nothing
>>in either the sections at            issue or in the broader statutory
>>scheme specifically refers to loans [of           that type]. Second, we
>>conclude that the actual text of the provisions is           ambiguous
>>with regard to whether such obligations are covered.
>>         At pg.438: We are not convinced that the language is as clear as
>>the           Commissioner contends.
>>        At pg.441: An examination of the statutory context, the text of
>>the        relevant provisions, and the legislative history convinces us
>>that the                construction that is "most harmonious with its
>>scheme and with the         general purposes that Congress manifested."
>>(Cite omitted) Moreover,         because the application of [the
>>provision] to these loans is ambiguous,         we follow the venerable
>>rule that "[i]n the interpretation of statutes         levying taxes
>>...[courts must not] enlarge their operation so as to         embrace
>>matters not specifically pointed out.  In case of doubt they are        
>>construed most strongly against the government."
>>	(A)5 One judge dissented, saying that the statute DID require the
>>reporting.  Only in disagreement as to the clarity of the statute, the
>>dissenting Circuit Judge Beam states, "ĎI respectfully dissent.  If the
>>[statutory] intent of Congress is clear, that is the end of the matter.
>>Chevron U.S.A., Inc.  v. NRDC, 467 U.S.  837, 842, 104 S.Ct.  2778, 2781,
>>81 L.Ed.2d 694 (1984)."
>>	(A)6 The Supreme Court failed to list case law as an authority to
>>consider when seeking to structure oneís own affairs. The Supreme Court
>>also failed to permit judicial officers and administrators to stray from
>>the clear language of Congressional intent expressed in statute.
>>	(A)7 State Courts share in this prescription for interpretation
>>of legislative intent. The following excerpt is taken from Cook v. State,
>>83 Wash.2d 725, 735, 521 P.2d 725 (1974).
>>         "Whether the legislature acted wisely by creating the challenged
>>        restriction is not a proper subject for judicial determination.
>>McKinney         v. Estate of McDonald, 71 Wash.2d 262, 264, 427 P.2d 974
>>(1967);        Port of Tacoma v. Parosa, 52 Wash.2d 181, 192, 324 P.2d
>>438        (1958). The fact that the legislature made no exception for
>>minors does         not give rise to some latent judicial power to do so
>>by means of a         volunteered additional provisio. This is true even
>>if it could be said the         legislative omission was inadvertant.
>>State v. Roth, 78 Wash.2d 711,         715, 479 P.2d 55 (1971); Boeing v.
>>King County, 75 Wash.2d 160,         166, 449 P.2d 404 (1969); State ex
>>rel. Hagan v. Chinook Hotel, 65          Wash.2d 573, 578, 399 P.2d 8
>>(1965); Vannoy v. Pacific Power and          Light Company, 59 Wash.2d
>>623, 629, 369 P.2d 848 (1962). If there          is a need for such an
>>exception, it must be initiated by the legislature,          not by the
>>courts. Boeing v. King County, supra; State ex rel. Hagan v.         
>>Chinook Hotel, supra." 
>>	(A)8 Similar limitations upon judicial authority are outlined by
>>the Supreme Court in Evans v. Gore, 253 U.S. 245, 249, 40 S.Ct. 550, 551
>>          "The particular need for making the judiciary independent was  
>>        elaborately pointed out by Alexander Hamilton in the Federalist, 
>>        No.78, from which we excerpt the following:
>>          "The executive not only dispenses the honors, but holds the
>>sword of           the community. The Legislature not only commands the
>>purse, but           prescribes the rules by which the duties and rights
>>of every citizen are           to be regulated. The judiciary, on the
>>contrary, has no influence over           either the sword or the purse;
>>no direction either of the strength or of           the wealth of the
>>society; and can take no active resolution whatever. It           may
>>truly be said to have neither force nor will, but merely judgment."
>>	(A)9 Debtor claims that statutory language validates his
>>calculations of tax liability reflected on his returns.
>>	(B)1 Regulation reflects that the letter of the law shall guide
>>individuals and officials in any determination of tax liability.
>>           26 CFR 601.106(f)(1) "Rule 1. An exaction by the U.S.
>>Government,            which is not based upon law, statutory or
>>otherwise, is a taking of            property without due process of law,
>>in violation of the [5th           Amendment]. Accordingly, an appeals
>>representative in his or her           conclusions of fact or application
>>of the law, shall hew to the law and           the recognized standards
>>of legal construction. It shall be his or her           duty to determine
>>the correct amount of the tax, with strict impartiality           as
>>between the taxpayer and the Government, and without favoritism          
>>or discrimination as between taxpayers."
>>	(B)2 Debtor, in his objection to IRSí proof of claim, has
>>attempted nothing more than to have the IRS held to the precise and
>>perfectly structured letter of 26 USC and 4 USC 72. While Debtorís
>>clientsí victimization in every court would fully justify his use of
>>violence to protect his property from the Respondent, Debtor has chosen
>>to place himself at risk for the same victimization at the [hands] of
>>this Court by trying once again to hold the IRS to the letter of the law
>>upon which he has relied, protections therein being starkly manifest.
>>	(C)1 The standing and recognition of labor as property cannot be
>>           "As in our intercourse with our fellow men certain principles
>>of            morality are assumed to exist, without which society would
>>be            impossible, so certain inherent rights lie at the
>>foundation of all action,            and upon a recognition of them alone
>>can free institutions be            maintained.  These inherent rights
>>have never been more happily            expressed than in the Declaration
>>of Independence, that new evangel            of liberty to the people;
>>"We hold these truths to be self evident," that            is so plain
>>that their truth is recognized upon their mere statement, "that          
>>all men are endowed," not by edicts of Emperors, or decrees of          
>>Parliament, or acts of congress, but, "by their Creator with certain     
>>     inalienable rights," that is, rights which cannot be bartered away,
>>or           given away, or taken away except in punishment of crime,
>>"and among           these are life, liberty, and the pursuit of
>>happiness, and to secure           these," not grant them but secure
>>them, "governments are instituted                  among men, deriving
>>their just powers from the consent of the             governed."
>>          "Among these rights, as proclaimed in that document, is the
>>right of           men to pursue their happiness, by which is meant the
>>right to pursue           any lawful business or vocation, in any manner
>>not inconsistent with the           equal rights of others, which may
>>increase their prosperity or develop           their faculties, so as to
>>give their highest enjoyment."
>>          "The common callings of life, the ordinary trades and pursuits,
>>which           are innocuous in themselves, and have been followed in
>>all communities           from time immemorial, must, therefore, be free
>>in this country to all           alike upon the same conditions.  The
>>right to pursue them without let or           hindrance, except that
>>which is applied to all persons of the same age,           sex,
>>condition, is a distinguished privilege of citizens of the United        
>>  States, and an essential element of that freedom which they claim as   
>>       their birthright."
>>          "It has well been said that, "The property which every man has
>>is his           own labor, as it is the original foundation of all other
>>property, so it is           the most sacred and inviolable.  The
>>patrimony of the poor man lies in           the strength and dexterity of
>>his own hands, and to hinder his           employing this strength and
>>dexterity in what manner he thinks proper,           without injury to
>>his neighbor, is a plain violation of the most sacred               
>>property." Butcherís Union Co.  v.  Crescent City Co., 111 U.S.  746     
>>     (1883)
>>         "Every man has a natural right to the fruits of his own labor,
>>as generally          admitted; and that no other person can rightfully
>>deprive him of those          fruits, and appropriate them against his
>>will..." The Antelope, 23 U.S.  66
>>         "The authorities we have cited show that labor is a doom, and if
>>                  submitted to with fidelity, secures a blessing to the
>>human family.  The          obligation to labor being imperious, confers
>>a right to labor, which right           is property; and it cannot be
>>withdrawn or destroyed by arbitrary           legislation without a
>>violation of natural right.  This right is a social right,           and
>>constitutions have been made to secure it from invasion.  No state       
>>   of the American Union can deprive a man of his title by arbitrary
>>edict;          and arbitrary institutions to limit, depress, impair or
>>to take away this             right, cannot be favored or maintained."
>>Slaughterhouse Case, 16 Wall.         36 (1872)
>>         "Included in the right of personal liberty and the right of
>>private           property, partaking of the nature of each is the right
>>to make contracts          for the acquisition of property.  Chief among
>>such contracts is that of          personal employment, by which labor
>>and other services are exchanged          for money or other forms of
>>property." Coppage v.  Kansas, 236 U.S.          1 (1915)
>>	(C)2 Debtorís Exhibit H is Tax Courtís decision #339-95 where the
>>only argument for laborís exclusion from cost under 26 USC 83 and 1012 is
>>that it is property within which one has no basis.
>>	(C)3 Statute and regulation, after embracing ALL property as a
>>cost, then fail to expressly exclude from cost property within which one
>>has no basis. 
>>	26 CFR 1.83-3(g) Amount paid. For the purposes of section 83
>>	and the regulations thereunder, the term "amount paid" refers to
>>	the value of any money or property paid for the transfer of
>>	property to which ß 83 applies.
>>	26 CFR 1.83-4(b)(2) If property to which 1.83-1 applies is
>>	transferred at an arm's length, the basis of the property  in the
>>	hands of the transferee shall be determined under section 1012
>>	and the regulations thereunder.
>>	26 CFR 1.1012-1(a) ...The cost is the amount paid for such
>>	property in cash or other property.
>>	(C)4 If the authorities cited in issue (A), supra, mean anything
>>at all, they dictate that, if legislative exclusion of some property from
>>cost cannot be identified, if property within which the Debtor has no
>>basis is not statutorily excluded from cost, Debtorís labor must be so
>>acknowledged, its FMV deductible as cost under 26 USC 212.
>>	(C)5 It follows that any tax purporting to be an "income tax",
>>property embraced as a cost, and disposed of to obtain other property, is
>>not to have its FMV placed in the category of profit or "gross income."
>>This contention forms the basis for the conclusions of tax liability
>>reflected on Debtorís returns, as outlined under issues (C) and (D) of
>>his brief in support of his objection to IRSí proof of claim.
>>	(D)1 Debtorís ch.13 plan provides for payment of alleged debts by
>>outlining cashflow and demands thereon. While such amounts are (God
>>willing) incoming, any amounts therein that are lawfully recognized as
>>FMV of property embraced as a cost under 26 USC are, of course, not
>>"income" or "gain" for the purposes of 16th Amendment taxation (See 26
>>USC 212; Doyle v. Mitchell, 247 U.S. 179, 184-188 (1918); Eisner v.
>>Macomber, 252 U.S. 189 (1920)).
>>	(D)2 The amounts from which Debtor proposes to satisfy alleged
>>debts are derived through the same activity(s) from which the Debtor
>>derived amounts reported on his returns; compensation for services.
>>	(D)3 If Debtorís labor (property within which he has no basis) is
>>embraced as a cost to him, its FMV is not "income" (gain) for the
>>purposes of 26 USC 1, 1401, 3101, or 3402, but its FMV is an amount from
>>which Debtor may satisfy debts alleged by IRS as "income tax" owed;
>>"gross income" v. "gross receipts."
>>	(D)4 Debtor claims that the terms of 26 CFR 1.83-3(g) ("the value
>>of any money or property") and of 26 CFR 1.1012-1(a) ("cash or other
>>property") leave no room for exclusion from cost of "property within
>>which one has no basis" as would justify taxation as gain the FMV of
>>Debtorís labor; all property is cost, unless excluded by law (clear
>>language provision for exclusion).
>>	(D)5 "The legal right of a taxpayer to decrease the amount of
>>what otherwise would be is taxes, or altogether avoid them, by means
>>which the law permits, cannot be doubted." (See Gregory v. Helvering, 293
>>U.S. 465 (1935), also U.S. v. Isham, 17 Wall. 496, 506; Superior Oil Co.
>>v. Mississippi, 280 U.S. 390, 395-6; Jones v. Helvering,  63 App.D.C.
>>204; 71 F.2d 214, 217)).
>>	(D)6 A tax must be imposed by clear and unequivocal language.
>>Where the construction of a tax law is doubtful, the doubt is to be
>>resolved in favor of whom upon which the tax is sought to be laid. (See
>>Spreckles Sugar Refining v. McClain, 192 U.S. 397, 416 (1904); Gould v.
>>Gould, 245 U.S. 151, 153 (1917); Smietanka v. First Trust & Savings Bank,
>>257 U.S. 602, 606, 42 S.Ct. 223, 224, 66 L.Ed. 391 (1922); Lucas v.
>>Alexander, 279 U.S. 573, 577 (1929); Crooks v. Harrelson, 282 U.S. 55, 51
>>S.Ct. 49, 75 L.Ed. 156 (1930); Burnet v. Niagra Falls Brewing Co., 282
>>U.S. 648, 654, 51 S.Ct. 262, 264, 75 L.Ed. 594 (1931); Miller v. Standard
>>Nut Margarine Co., 284 U.S. 498, 508, 52 S.Ct. 260, 262, 76 L.Ed. 422
>>(1932); Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79
>>L.Ed. 596 (1935); Hassett v. Welch, 303 U.S. 303, 314 (1938); U.S. v.
>>Batchelder, 442 U.S. 114, 123 (1978)). 
>>	(D)7 This holding is echoed in decisions rendered [today]. (See
>>Security Bank of Minnesota v. C.I.R., 994 F.2d 432, 436 (CA8 1993)).
>>	(D)8 What does not exist in regulation or statute does not exist
>>at all. (See Carminetti v. U.S., 242 U.S. 470, 485, 489-493 (1916),
>>citing (on 485) Lake County v. Rollins, 130 U.S. 662, 670, 671; Bate
>>Refrigerating Co. v. Sulzberger, 157 U.S. 1, 33; U.S. v. Lexington Mill
>>and Elevator Co., 232 U.S. 399, 409; U.S. v. Bank, 234 U.S. 245, 258. See
>>also Security Bank of Minnesota v. C.I.R., supra, (CA8 1993)). 
>>                       QUESTIONS PRESENTED FOR REVIEW:
>>Under Issue (C) of Debtorís brief:
>>1. Since section 83 is applicable to amounts now sought to be included in
>>gross income, it is clear that either the Respondent or the Debtor is in
>>violation of it but, silence abounds. Does it apply and, if so, how does
>>it operate and how is the Debtor to comply with it in the future so as to
>>avoid annual confrontations with the Respondent?
>>2. Where, under the Law [26 USC 1012], does it provide that only property
>>within which one has a basis is to be recognized as a cost or, that
>>intangible personal property is excluded from that which is cost?
>>3. If such exclusions alluded to in #2 above do not exist, can "income
>>tax" approach such property's FMV, as contemplated under the Sixteenth
>>Amendment (See Eisner v. Macomber, 252 U.S. 189 (1920))?
>>4. Is the FMV of Labor (contract value) appropriately termed "gain
>>derived from Labor" as stated in Eisner, supra?
>>5. For the sake of argument, even if Labor was excluded from cost, if
>>section 83 applies to Debtor's compensation and, if Labor is property,
>>doesn't 26 CFR 1.83-3(g) place its FMV in the category of cost ("amount
>>paid")? Whose Labor does it do it for?
>>6. Is the FMV of Labor excluded from gross income by Law (See 26 USC 83,
>>212, 1001, 1012; 26 CFR 1.83-3(g), 1.1012-1(a), 1.1001-1(a))?
>>Under Issue (D) of Debtorís brief:
>>7. Do the provisions cited in #6 above also apply in other chapters
>>imposing "income taxes"? If so, how have they operated and how is the
>>Debtor to apply and comply with them?
>>8. With accepted applicability of section 83, 1001, 1011, and 1012 to all
>>compensation, and the Respondent's plethora of case law saying that all
>>compensation is section 61(a) gross income, would it not follow that
>>deduction statutes 63(c) and 151(d) would also apply to section 3121(a)
>>wages, permitting the single employee a deduction of several thousands of
>>dollars from the amount to be taxed under chapter 21 FICA?
>>9. If those several chapter 1 provisions apply to FICA wages (section
>>61(a), 83, 1012, 1011, 1001), why do sections 63(c) and 151(d) not also
>>apply? Debtor cannot be an employer without this information.
>>	2.2 Debtorís arguments, explanation, and questions presented for
>>review should suffice to answer the Courtís order that Debtor outline:
>>"In view of objection R (Paragraph 1.3 of the objection), Debtor shall
>>file a memorandum of authority on the question of whether an individual
>>can have regular income for the purposes of Chapter 13 of the bankruptcy
>>Code (11 U.S.C.), but not for the purposes of the Internal Revenue Code
>>(26 U.S.C.)..."
>>	2.3 Debtor has placed these same questions in most cases for
>>which he has written pleadings in his quest for a judicial interpretation
>>of American Law. Debtor would like to thank the Court for this
>>opportunity to further articulate his STATUTORY claims that the law
>>protects him in his rights to freely labor and to freely contract.
>>Dated:______________           Presented by:
>>Judge's comment: "I don't think that you have answered the question."

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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