Time: Thu Apr 03 15:04:55 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id OAA02895; Thu, 3 Apr 1997 14:59:21 -0700 (MST) by usr09.primenet.com (8.8.5/8.8.5) with SMTP id OAA25841; Thu, 3 Apr 1997 14:59:04 -0700 (MST) Date: Thu, 03 Apr 1997 15:02:58 -0800 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: IMPLIED NOTICE to IRS (fwd) <snip> > >--------- Begin forwarded message ---------- >From: butchaz@juno.com (Alfred R Martin) >Date: Mon, 31 Mar 1997 22:42:52 EST >Message-ID: <19970331.204142.5006.3.butchaz@juno.com> > > IMPLIED NOTICE > >Infernal Revenue Service >___________________ >___________________ > >To Whom it May Concern: > > The purpose of this Notice is to make you aware of a misprision done >to this private Person, _________________, by the Internal Revenue >Service ("IRS") and/or its agents. Your agency's actions concerning me >are causing great stress and hardship and are "Mala Prohibita," to say >the least. Your agency has acted toward me in a capacious and >incommensurable manner, and has not followed the principle of Due Process >with regard to resolving any problems or misunder- >standings there may be between Myself and your agency. > > The act of your agency confiscating my Pay Checks by "Notice of Levy", >(Bill of Attainder in violation of the Constitution) is unlawful. A >"Notice of Levy" instrument forwarded to a third party is not a levy >which warrants the surrender of property and, therefore, appears to be FRAUD perpetuated by the agent upon me. The Internal Revenue Code >("IRC") Section 6335(a) defines the "Notice" instrument by use, and states >that the Notice is to be served upon whomever seizure has been executed >against, after the seizure is effected. In short, the Notice merely >conveys information, and is not the cause for action. The term "Notice" is clarified by definition in Blacks Law Dictionary, 6th Edition, and >other law dictionaries. Use of the Notice of Levy instrument to effect >seizure is consequently, FRAUD BY DESIGN. > > MEMORANDUM OF LAW > > This Memorandum is being written to describe what, BY LAW, must occur for the levying process to be a legal action. > > An IRS "Notice of Levy" gives the appearance of a legal document, >which it is. However, it does NOT apply to a person in the private >sector. A Notice of Levy has no legal effect in the private sector >UNLESS it is accompanied with a judicial court order and a Notice of >Seizure. The following cites will demonstrate that the Notice of Levy carries no authority to levy and that a levy must be accomplished through >seizure of the property in question: > > A "levy" for delinquent taxes requires that property be > brought into legal custody through seizure, actual or > constructive, and is absolute appropriation of property > levied on, and a mere Notice of intent to levy does not > constitute a levy. > Freeman v. Meyer, 152 F. Supp. 383, Affd 253 F.2d 1295 (1968) > > A "levy" requires that property be brought into legal custody > through seizure, actual or constructive, levy being an absolute > appropriation in law of the property levied on, and a mere > notice of intent to levy is insufficient. > United States v. O'Dell, 160 F. 2d 304, 307 (1947) > > In order for there to be a lawful confiscation of my property, there >are specific procedures that must be followed. The pertinent questions that must be answered by all parties responsible unto the law are: > >1. Where does the authority come from that allows a Revenue Officer to >order > a third party to take property without a court order or due process >hearing? >2. Does the party in control of the property have the legal authority to >turn over > property to a third party without a court order? > > It is imperative to distinguish the difference between a "levy" and a >"seizure". A seizure means the act of taking into custody or control >something which before was not in custody or control. A levy is not a >single act, but rather it is the entire process by which the money needed to pay a tax is raised by exercising control over something already in >the custody and control of the government. The levy process includes the >sale of levied property and the application of the proceeds to the unpaid >tax. > > NOTICE OF SEIZURE > > The process of "seizure" by the IRS begins with 6335 IRC, which states: > >Sec. 6335. Sale of seized property. > (a) Notice of Seizure. > As soon as practicable after seizure of property, notice in > writing shall be given by the Secretary to the owner of the > property (or in the case of personal property, the possessor > thereof), or shall be left at his usual place of abode or > business, if he has such, within the internal revenue district > where the seizure is made. If the owner cannot be readily > located or has no dwelling or place of business within such > district, the notice may be mailed to his last known address. > Such notice shall specify the sum demanded and shall > contain, in the case of personal property, an account of the > property seized and, in the case of real property, a description > with reasonable certainty of the property seized. > > Whenever the IRS makes a seizure, they are REQUIRED BY LAW to issue a >"Notice of Seizure" (Form 2433). This Notice also has another effect. A levy must be made within six years (ten years, after 1989) [see Sec. >6502(a)] after the tax is assessed and there may come a time when a levy >proceeding occurs near the end of the six/ten year period. So, for the >purpose of determining the exact point in time when the law would consider that the levy was made, Sec. 6502(b) states: > >Sec. 6502. Collection after assessment. > (b) Date when levy is considered made. > The date on which a levy on property or right to property is > made shall be the date on which the notice of seizure in > section 6335(a) is given. > > This section makes it very clear that unless a "Notice of Seizure" is given, no levy has been made PURSUANT TO LAW, and there is no authority >for anyone to honor the "Notice of Levy" in question. > > Internal Revenue Enforcement Officers, when enforcing title taxes, are >given authority to make seizures of "property subject to forfeitures." >It is very important to know exactly what property falls within the >confines of "property subject to forfeiture" since property outside the >scope of the meaning cannot be seized by an Internal Revenue Enforcement >Officer. They have no authority to do so. The definitions of "property >subject to forfeiture" are found in Title 26, USC, Sections 7301 through >7304. > > These Code Sections detail a comprehensive list of property which the >Internal Revenue Enforcement Officers have authority to seize. If the property does not fall within the above description, it is NOT "Property >subject to forfeiture" and the Internal Revenue Officer is not >authorized to seize it. It is essential to note that my earnings (my property) is not property subject to forfeiture pursuant to the above IRC >section. > > PROPERTY SUBJECT TO LEVY > > After a levy is authorized, the property upon which the levy extends >is given in Section 6331(b), which says that the Secretary may levy "ONLY property possessed and obligations existing at the time thereof." If >the property is not already possessed by the Secretary, the property may >be brought into the Secretary's possession by seizure and distraint, but >ONLY "property subject to forfeiture" may be seized. Section 6331 >embraces the power given under Sections 7321 and 7608, it does NOT >expand upon it. > > Section 6331(b) has given us a very important definition of "property >subject to Levy," a phrase which makes its appearance in certain key places both in the Internal Revenue Code and in the Treasury Regulations. >"Property subject to levy" basically means property which is already >possessed by the Secretary, or an obligation of the Secretary existing >at the time of the levy, and property which is not exempt from levy >under Section 6334. > > "Secretary" means "Secretary of the Treasury or his delegate" (sec. >7701(1)(11). Basically, the only property the Secretary (or his >delegate) would already have in his possession would be accrued salaries >or wages of Federal or District of Columbia employees which have not yet >been paid out of the Federal coffers. Such accrued salaries or wages >would be the only property upon which the Secretary could levy without >having to effectuate a seizure, and this is confirmed in Section 6331(a) >of the IRS Code. > > Section 6331(a) [which the IRS leaves off the back of the Notice of Levy form] states that a levy can be made upon accrued salaries or wages by serving a "Notice of Levy" on the employer of an officer, employee, or >elected official of the United States, the District of Columbia, or any >agency or instrumentality of the United States or the District of >Columbia. This confirms my previous statement since the accrued >salaries or wages of such officers, employees or elected officials >represent an obligation of the Secretary existing at the time the levy >is made. Since these described individuals are paid from the Federal Treasury, the Secretary of the Treasury already has possession of the funds >which would be used to pay the obligation and the Notice of Levy is >simply the Secretary's notice that said funds are being applied to >unpaid taxes instead of being paid to the officer, employee or elected >official. No seizure is necessary, and thus no Notice of Seizure is >ever issued. > > The Notice of Levy is usually served on the head of the Federal (or >District of Columbia) agency (or the agent designated by him who is charged with payroll duties). This is the only time the IRC states that the service of a Notice of Levy constitutes an actual Levy. In all other >cases, Section 6502(b) states that a levy is considered made only when >the Notice of Seizure is issued. > > The property of _______________________ is not subject to levy and is >only subject to an attachment or execution under the judicial process. > > The property of ______________________ is not subject to forfeiture! >To enforce collection of a delinquent tax the Internal Revenue Service >needs a court order, just like any other judgment creditor. The >procedure to reach my property by suit is given in the IRS Code under >Section 7401, which states: > >Section 7401. Authorization > No civil action for the collection or recovery of taxes, or of > any fine, penalty, or forfeiture, shall be commenced unless > the Secretary authorizes or sanctions the proceedings and > the Attorney General or his delegate directs that the action > be commenced. > >******When this dispute is adjudicated in court, AS REQUIRED BY LAW, and >if I am found to be indebted to the Internal Revenue Service, I WILL PAY >SUCH JUDGMENT. > > It would appear that it was the intent of the Congress not to cause a >person great harm or hardship or cause a person to become indigent by enforcing laws such as garnishment, levies and/or recoupment. > > I would call your attention to what is said in the Underwood Tariff >Act. It would seem that our government decided to claim the authority of >the Sixteenth Amendment and the Underwood Tariff Act into one because the >Tariff Act was passed on October 3, 1913 and the Sixteenth Amendment was passed on February 25, 1913 with the following language: > > The Underwood Act imposes on every citizen of the United > States and every citizen residing in the United States a > personal income tax on his entire net income in excess of > $3,000. > > The Tariff Act goes on and on with what can be taxed and ends with >"salaries of State and local officials." THE TAX WAS NEVER TO BE APPLIED TO THE COMMON LABORER. In the Tariff Act, under "definition," the Act >states: > > A tax is a compulsory payment exacted by a government from > persons subject to its authority for the purpose of defraying the > expenses incurred in the general interest. > > Also in the Act it is pointed out that in taxing in order not to >deprive a "taxpayer" who might have exemptions or even no requirement for withholding, the Act would give a means to facilitate this. As we know >today, that would be the W-4 form. > > In conclusion, with all that has been stated above, I demand that all >my past property, in the amount of _________________ that has been taken >by your agency and/or by your agent, by the Fraudulent Use of the Notice >of Levy, A Bill of Attainder, in violation of the U.S. Constitution, be returned to me and that your file become closed on this private person. > >*When this dispute is adjudicated in court, AS REQUIRED BY LAW, and if I >am found to be indebted to the Internal Revenue Service, I WILL PAY SUCH >JUDGMENT. > Very truly >yours, > >Date: ________________________ > >cc: Office of Chief Counsel, Washington, D.C. > Disclosure Office > District Director > President of the United States > Congressman _______________ > Senators ________________________ >--------- End forwarded message ---------- > >
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