AUTHORITY FOR THE COURT TO ISSUE THE INJUNCTION

 

In Botta v. Scanlon,[39]  the Court set forth the general exceptions to the bar[40], stating:

 

"...[I]t has long been settled that this general prohibition is subject to exception in the case of an individual taxpayer against a particular collector where the tax is clearly illegal or other special circumstances of an unusual character make an appeal to equitable remedies appropriate."[41]

 

The Court then gave a number of examples as follow:

 

"(a) Suits to enjoin collection of taxes which are not due from the plaintiff but, in fact, are due from others. For example, see Rafael v. Granger, 3 Cir. 1952, 196 F.2d 620, 622....

 

"(b)  Cases  in  which  plaintiff  definitely  showed  that  the  taxes  sought  to  be  collected  were "probably" not validly due. For example, Midwest  Haulers Inc. v. Brady, 6 Cir. 1942, 128 F.2d 496, and John M. Hirst and Co. v. Gentsch, 6 Cir. 1943, 133 F.2d 247.

 

"(c) Cases in which a penalty was involved. For example, Hill v. Wallace, 259 U.S. 44, 42 S.Ct 453,  66 L.Ed,  822; Lipke  v.  Lederer,  259  U.S. 557, 42  S.Ct. 549, 66 L.Ed.  1061; Regal Drug Corporation v. Wardell, 260 U.S. 386, 43 S.Ct 152, 67 L.Ed 318; Alien  v. Regents of the University System of Georgia, 304 U.S. 439, 58 S.Ct 980, 82 L.Ed 1148.      '

 

"(e) Cases based upon tax assessment fraudulently obtained by the tax Collector by coercion.    For example, Mitsukiyo  Yoshimura  v.  Alsup, 9 Cir. 1948, 167 F.2d  104 "(141 F.Supp. at page 338).

[4] In the present case, if any of the plaintiffs are not subject to any tax liability, such plaintiff might well be within the exception stated in 9 Mertens, law of Federal Income Taxation, Section 49.213, Chapter 49, page 226, as follows:

 

"[2] It is equally well settled [sic] that the Revenue laws relate on l y ro taxpayers. No procedure is prescribed for a nontaxpayer where the Government seeks to levy on property belonging to him for the collection of another's tax, and no attempt has been made to annul the, ordinary rights or remedies of a non-taxpayer i n such cases. If the Government sought to levy on the property of A for a tax liability owing to B, A could not and would not be required to pay the tax under protest and then institute an action to recover the amount so paid. His remedy would be to go into a court of competent jurisdiction and enjoin the Government from proceeding against his property." In Tomlinson v. Smith, 7 Cir, 1942, 128 F.2d 808 ... the Court affirmed an order granting interlocutory injunction and noted the "distinction between suits instituted by taxpayers and non-taxpayers" (at page 811)

 

CONCLUSION

 

Plaintiffs are in no way subjected to any derivative liability for the Districts local municipal tax. The procedures set forth in 26 C.F.R. do not authorize the Secretary or his delegate to manufacture income and tax it where a Person is without the taxable class. Title 26 C.F.R., § 871 is not shrouded in fog, in that where there is no income from sources within the "United States" by a nonresident alien, the choice is delegated to that Person by Congress as to whether a return is to be filed or not.   This is why the system is repeatedly referred .to as a voluntary compliance system. Where the Secretary determines the existence of taxable income when there has been no return, he should sign the substitute return and assume the responsibility for the determination.   Treasury Decision 2313 explains that the withholding agent is responsible for withholding the tax from sources within the "United States", for filing a Form 1040NR and for paying over the tax withheld from said nonresident alien.   Therefore, no penalties should accrue to the Plaintiffs.

 

Plaintiffs were not aware of the information contained in this Memorandum of Law during the early years of their lives and reported "earned income" from their labor in the foreign States of the Union, and paid a local municipal tax of the "United States"; this fact in no way subjects' them to liability to the present day nor does that fact in anyway change their status as Citizen of one of the Republic Union States. Nor does it change their status from nonresident aliens to the "individual" defined in 26 C.F.R., Section 1.1-1. Nor does it justify the Secretary's actions, taken when the Plaintiffs knowing their true status, repeatedly informed him through his agents the Internal Revenue Service, of said status. The Secretary is presumed to function in good faith, much, as is the criminal defendant presumed innocent. The Secretary is required to know the law he is administering. He is to administer said laws with justice and equality within the parameters mandated by Congress. By the Secretary's action in ignoring the law, once administratively noticed by the plaintiff, the mantel of presumed "good faith" wears perilously thin and any good faith immunity, lost.

 

Defendant United States (IRS), have not filed any Financing Statement UCC-1 , with the Secretary of State of (Name), evidencing a claim against the Plaintiff. The Uniform Commercial Code requires the filing of the U.C.C. 1 Form to verify the existence of any Claim arising under the Uniform Commercial Code against someone. The existence of a Claim under the U.C.C. is based upon the existence of a Contract between two parties and the only reason for any court action is a controversy caused by one party’s breach of contract. Filing a U.C.C.-1 Form verifies the existence of a Contract of Claim. The absence of such U.C.C.-1 filing is evidence of the non-existence of any Contract or Claim against the Plaintiff and therefore no controversy can exist and the Defendant United States (IRS) alleged claim has no legal sufficiency.

 

The Executive branch of government, the Congress and the Courts, all discourage arbitrary and malicious actions of their agents, to do otherwise would sanction tyranny. Pursuant to Federal Rule of Evidence 301, the burden now rests with the defendants to bring forward evidence in rebuttal of any facts stated by the Plaintiffs herein.

 

Respectfully submitted,

 

 

 

 

Executed on this ( ) day of (Month, Year).

 

 

                                                                                                                                                                       

(Your Name)                                                                                                   (Wife Name

 

 

 

 

 

 

 

 I hope that the material we have just covered has enlightened you as to your liability and also your rights under the law. In the next section, we will go to the basics of self-representation. It is urged that before you enter the battlefield of the court room you have the basics down pat, or you are in for one horrible experience. Once you litigate an action, win or lose, you will learn valuable lessons that are only learned from combat. One overriding principle is that once you have committed yourself to an action, you never ever stop. If you lose in the County Court, appeal to the Circuit. If the case was lost in the Circuit, appeal to the appellate court. If you lose there right to the state Supreme Court, etc., most cases (90%) are settled out of court. If you have done your homework and have a legitimate action, it most certainly will be negotiated out of court, that is the price side. The drawback to this scenario is a good case law is and made and the culprit’s continue to molest other unsuspecting citizens that’s up to you.