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 ----------
>
>
Return to Table of Contents for
Supreme Law School: E-mail