No. 07-2017

 

_______________________________________________________________________

 

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

______________________

 

 

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee,

 

v.

 

John S. Williamson, Nancy L. Williamson, John G. Williamson,

David A. Williamson, Garrett J. Williamson, Deborah Kruhm,

 

Defendants-Appellants.

_____________________________________

 

 

ORAL ARGUMENT DESIRED

 

_______________________________________

 

ON APPEAL FROM THE ORDERS OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW MEXICO

DISTRICT JUDGE BRUCE D. BLACK

_____________________________________

 

REPLY BRIEF FOR THE APPELLANTS

_____________________________________

 

 

1277 Historic Rte. 66E.

Tijeras 87059

NEW MEXICO, USA

 

(505) 281-5788

 

_________________________________________________________________

 


 

TABLE OF CONTENTS

 

                                                                                                                               PAGE

 

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION                                     4

 

INCORPORATION OF INTERVENOR'S REPLY BRIEF                                                                         9

 

STATEMENT OF THE ISSUES                                                                                                                10

 

STATEMENT OF THE CASE                                                                                                                   11

 

STATEMENT OF FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW                   13

 

SUMMARY OF THE ARGUMENT                                                                                                         21

 

CONCLUSIONS                                                                                                                                          22

 

STATEMENT REGARDING ORAL ARGUMENT                                                                                27

 

CERTIFICATE OF COMPLIANCE                                                                                                          28

 

CERTIFICATE OF SERVICE                                                                                                                     29

 


TABLE OF AUTHORITIES

 

U.S.CODES                                                                                                                PAGE

Title 26 U.S.C. 7402                                                                                                    4, 10, 12, 13

Title 26 U.S.C. 7403                                                                                                    4, 10, 12, 13

Title 28 U.S.C. 2410                                                                                                    4

Title 28 U.S.C. 2201                                                                                                    5

Title 28 U.S.C. 2463                                                                                                    6

Title 28 U.S.C. 1691                                                                                                    6, 10

Title 26 U.S.C. 7401                                                                                                    10

Title 31 U.S.C. 333                                                                                                      10, 16

Title 26 U.S.C. 7851(a)(6)(A)                                                                                      10, 11, 13

Title 26 U.S.C. 6321                                                                                                    11

28 U.S.C. §§ 1345 and 1346,                                                                                      12

Title 26 U.S.C. 6065                                                                                                    13, 17

Title 26 U.S.C. 3401(c)                                                                                                15

Title 26 U.S.C. 7701(a)(26)                                                                                         15

Title 26 U.S.C. 3121(e)(1)                                                                                           16

Title 26 U.S.C. 6303(a)                                                                                                19

IRC 7809                                                                                                                     21, 26

18 U.S.C. 912                                                                                                             22

IRC 6303(a)                                                                                                                22

18 U.S.C. 1341                                                                                                           22

18 U.S.C. 1961                                                                                                           22

18 U.S.C. 912, 1001                                                                                                   25

 

U.S. CODE OF FEDERAL REGULATIONS

26 C.F.R. 1.1-1                                                                                                           5, 23

26 CFR 301.6203-1                                                                                                    17

 

STATUTES

RRA98, section 3707                                                                                                   10, 17

Federal Register Act @ 44 U.S.C. sections 1501, 1507                                               11, 14, 16

Paperwork Reduction Act @ 44 USCS 3500 et seq, 3512                                          15

Administrative Procedures Act @ 5 U.S.C. 552(a)(1)                                                   16

U.C.C. 9-401                                                                                                              20

NMSA 58-13A-7                                                                                                        20

 

UNITED STATES SUPREME COURT CASES

United States v Cooper Corporation, 312 U.S. 600 (1941)                                          4

Connally et al v. General Construction Co., 269 U.S. 385, 391, (1926)                        10

American Banana Co. v. United Fruit Co., 213 U.S. 347, 356-357 (1909)                   11

New York Central R.R. Co. v. Chisholm, 268 U.S. 29, 31-32 (1925)                          11

U.S. v. Spelar, 338 U.S. 217, 222, 70 S.Ct. 10 (1949)                                                11

Grannis v. Ordean, 234 U.S. 385, 394 (1914)                                                              13

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)                                                          13

Pollock v. Farmers' Loan, 157 U.S. 429, 554                                                               14

Chrysler Corp. v. Brown, 441 U.S. 281, 297 (1979)                                                    16

Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 92 (1959)                            16

California Bankers Ass’n v Shultz, 416 U.S. 21 (1974)                                                 17

Southern Pacific Co. v. Lowe, 247 U.S. 330, 335                                                        18

Eisner v. Macomber, 252 U.S. 189                                                                              18

Strattons’ Independence v. Howbert, 231 U.S., 406, 409-413                                     18

Merchants’ Loan & Trust Co. v. Smietanka, 255 U.S. 509, 519 (1921)                        18

Heiner v. Donnan, 285 U.S. 312, hn. 2 (1932)                                                              18

G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977)                                          19

U.S. v. Mason, 412 U.S. 391, 399-400 (1973)                                                            21

Balzac v. Porto Rico, 258 U.S. 298, 312 (1922)                                                          23

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991)                             24

Marbury v. Madison, 1 Cranch 137, 177-78 (1803)                                                     24

Cohens v. Virginia, 6 Wheat. 264, 399 (1821)                                                              24

 

LOWER COURT CASES

Hollingshead v. United States, 85-2 USTC 9772 (5th Cir. 1985)                                   4

Dwight v. Merritt, 4 F. 614, 615 (C.C. S.D.N.Y. 1880)                                               6

Middleton Paper Co. v. Rock River Paper Co. 19 F. 252, (C.C. W.D. Wisc. 1884)  6

Clough v. U.S., 47 F. 791, 795 (C.C. W.D. Tenn. 1891)                                             7

Leas & McVitty v. Merriman, 132 F, 510, 511-513 (C.C. W.D. Virginia 1904)           7

Perris Irrigation Dist. V. Turnbull, 215 F. 562, 564, (9th Cir. 1914)                               7

United States v. Sharrock, 276 F. 30, 31 (DCUS Montana 1921)                                7

Ex parte Craig, 282 F. 138, 145, (2nd Cir. 1922)                                                         7

In re Simon, 297 F. 942, 944-946 (2nd Cir. 1924)                                                        7

Sweeney v. Greenwood Index-Journal Co., 37 F. Supp. 484 (DCUS S.C. 1941)         7

Brown v. Beckham, 137 F.2d 644, 646, hn. 2 (6th Cir. 1943)                                       8

Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc.,

240 F.2d 814, hn. 3 (5th Cir. 1957)                                                                 8

Scanbe Mfg. Co. v. Tryon, 400 F.2d 598 hn. 1 (9th Cir. 1968)                                     8

Attwell v. LaSalle Nat. Bank,607 F.2d 1157 (5th Cir. 1979)                                        8

Gibbs v. Hawaiian Eugenia Corp., 581 F.Supp. 1269 (S.D.N.Y. 1984)                        8

Kroetz v. ATF-Davidson Co., 102 F.R.D. 934 (E.D.N.Y. 1984)                                 8

Miles v. Gussin, 104 B.R. 553 (Bkrtcy. D.C. 1989)                                                      8

U.S. v. National Muffler Mfg., Inc., 125 F.R.D. 453 (N.D. Ohio 1989)                        9

Brafman v. U.S., 384 F.2d 863 (5th Cir. 1967)                                                             17, 18

Linwood Blackstone et al. v. United States of America, 778 F.Supp. 244, 247

(USDC / D. Md. 1991)                                                                                    19

Myrick v. United States, 296 F.2d. 312 (5th Cir. 1961)                                                 19

March v. IRS, 335 F.3d 1186 (10th Cir. 2003)                                                             19

United States v. O’Dell, 160 F.2d 304 (6th Cir. 1947)                                                  19

Geiselman et al. v. U.S., 92-1 USTC ¶50200                                                               19

John M. Hirst & Co. v. Gentsch, 133 F.2d 247, hn. 4 (6th Cir. 1943)                            20

Midwest Haulers v. Brady, 128 F.2d 496, hn. 3 (6th Cir., 1942)                                   20

Long v. United States, 148 F. Supp. 758 (1957)                                                           20

United States v. Berman, 825 F.2d 1053, 1056-1057 (6th Cir. 1987)                           22

U.S. v. High Country Broadcasting Co., 3 F.3d 1244 (9th Cir. 1993)                            22

U.S. v. Ballard, 535 F.2d 400, 404, hn. 2 (8th Cir. 1976)                                              23

Anastasoff v. United States of America, No. 99-3917EM (8th Cir. 2000)                      24

 


STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION

 

Plaintiff UNITED STATES OF AMERICA [sic] brought this suit alleging original jurisdiction in the United States District Court (“USDC”) for the District of New Mexico under Title 26, U.S. Code, sections 7402 and 7403.

The “UNITED STATES OF AMERICA” is not a proper party in this action.  The Plaintiff UNITED STATES OF AMERICA [sic] failed to appear and failed to prosecute.  It is not proper for attorneys employed by the U.S. Department of Justice (“DOJ”) to appear and attempt legally to represent the UNITED STATES OF AMERICA [sic] when said attorneys lack powers of attorney to represent the UNITED STATES OF AMERICA.  (Doc. 1.)[1]

The Williamson Appellants timely and properly challenged the jurisdiction of the USDC over the subject matter and over the Defendants personally.  U.S. District Judge Bruce D. Black completely ignored the FACT that 26 U.S.C. §§ 7402 and 7403 explicitly grant jurisdiction over the subject matter in question to the District Courts of the United States (“DCUS”), which are Article III constitutional courts.  Such statutes must be strictly construed [cites omitted here].

The UNITED STATES OF AMERICA [sic] is not a proper Party Plaintiff;  it is an improper name.  See FRCP Rule 10 and the decisions under that Rule re: proper and improper names.  In United States v. Cooper Corporation, 312 U.S. 600 (1941), the U.S. Supreme Court wrote:

 

"We may say in passing that the argument that the United States may be treated as a corporation organized under its own laws, that is, under the Constitution as the fundamental law, seems so strained as not to merit serious consideration."

 

[emphasis added]

 

Accordingly, UNITED STATES OF AMERICA [sic] is not a federal corporation representing the "United States" (federal government);  Congress never incorporated it as such.

28 U.S.C. 2410 is a waiver of so-called “sovereign immunity” whenever the United States (federal government) violates one of its own statutes.  See Hollingshead v. United States, 85-2 USTC 9772 (5th Cir. 1985).  The term “UNITED STATES OF AMERICA” does not occur anywhere in Title 28 of the U.S. Code!

The UNITED STATES OF AMERICA directs the Appellants’ and this Court's attention to 26 U.S.C. 1.  That section has absolutely no mention of “kind of tax 1040”.  Pursuant to its implementing regulation at 26 CFR 1.1-1, section 1 is expressly imposed upon citizens of the United States (aka federal citizens) and residents of the United States (aka resident aliens), NOT Citizens of New Mexico or any of the other United States of America (50 States of the Union).

The Williamsons are not now, nor have they ever been “citizens of the United States” or “residents of the United States” (resident aliens bearing “green cards”).

The Internal Revenue Service (“IRS”) at one time applied to the Office of Management and Budget (“OMB”) for an OMB control number and expiration date for the Form that corresponds to 26 CFR 1.1-1;  that OMB number was 1545-0067;  and, that number was found on IRS Form 2555 Foreign Earned Income, not Form 1040.

There is absolutely no evidence before the USDC below, or before this Court, that the Williamson Appellants are anything other than New Mexico State Citizens.

Moreover, 28 U.S.C. 2201 contains an exception which expressly bars any federal court from declaring Appellants to be federal citizens or resident aliens, when they are not.

For example, taxable income which federal citizens earn within the 50 States of the Union is legally defined as “foreign earned income”.

For purposes of Private International Law, also known as federal municipal law, the 50 States are legally foreign with respect to the areas over which Congress has exclusive legislative authority.  See “The Federal Zone: Cracking the Code of Internal Revenue,” by author Paul Andrew Mitchell, B.A., M.S., Private Attorney General.  Internalmeans municipal here!

There is ABSOLUTELY NO EVIDENCE before the USDC below or this Court that any valid ASSESSMENTS were ever done, or that any valid NOTICES OF ASSESSMENT AND DEMANDS FOR PAYMENT were ever issued to the Appellants for any of the so-called "tax liabilities" or "assessments" alleged by Ms. Wolfinger.  See Page 2 in her REPLY BRIEF.

Ms. Wolfinger entirely failed to address this problem in her REPLY BRIEF, choosing instead to assume facts not in evidence such as a “summons” that violated FRCP Rule 4(b).

The property "ordered to be sold" is deemed in the custody of the law pursuant to 28 U.S.C. 2463, and should never have been illegally sold without a proper ORDER issued by a court of competent jurisdiction after due process of law had run its course.

The USDC for the District of New Mexico was clearly not a court of competent jurisdiction in the instant case, for reasons that are quite thoroughly documented here.

For example, the original “summons” and all of Judge Black's “orders” lacked either the seal of the court and/or the signature of the Clerk of Court, as required by 28 U.S.C. 1691, thereby rendering all of Mr. Black's process totally invalid.

Moreover, the case law under 28 U.S.C. 1691 and FRCP Rule 4(b) have consistently held that a civil SUMMONS which fails to comply with those clear requirements of 1691 results in depriving a federal district court of In Personam jurisdiction, in the first instance:

 

The statute intends that all process shall issue from the court, where such process is to be held to be the action of the court, and that the evidence that it issues from the court and is the action of the court shall be the seal of the court and the signature of the clerk.    In courts of the United States a summons cannot be amended by subsequent addition of the signature of the clerk, and the seal of the court.  Citing Peaslee v. Haberstro, 15 Blatchf. 472.

 

[Dwight v. Merritt, 4 F. 614, 615]

[hns. 1 and 2, (C.C. S.D.N.Y. 1880)]

 

 

All writs and process issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof.

 

[Middleton Paper Co. v. Rock River Paper Co.]

[19 F. 252, hn. 1 (C.C. W.D. Wisconsin 1884)]

[emphasis added]

 

 

Seal is required to be affixed by commissioner of circuit court to warrant issued by him to procure arrest for preliminary examination of defendant charged with crime in violation of penal statutes of United States.

 

[Clough v. U.S., 47 F. 791, 795]

[hn. 6 (C.C. W.D. Tennessee 1891)]

[emphasis added]

 

 

In Peaslee v. Haberstro, 15 Blatchf. 472, Fed.Cas. No. 10,884, the summons was set aside because not under the seal of court or signature of clerk. ...  To my mind, the word process,” as used in Rev. St. § 911, means an order of court, although it may be issued by the clerk.

 

[Leas & McVitty v. Merriman, 132 F. 510, 511-513]

[(C.C. W.D. Virginia 1904), emphases added]

 

 

In Leas & McVitty (C.C.) 132 Fed. 510, 512 [supra], the court said:  “I think section 911, Rev. St. (U.S. Comp. St. 1901, p. 683), means no more than that, when a writ or process issues from a federal court, it must be signed by the clerk, and shall be authenticated in the manner therein set out.”

 

[Perris Irrigation Dist. v. Turnbull]

[215 F. 562, 564, (9th Cir. 1914)]

[emphases added]

 

 

... [A]nd the notice referred to is the usual process and subpoena in equity of statute and rules ... necessarily under the seal of the court, and signed by its clerk. ...  Such subpoena was not published herein, and so jurisdiction of defendant was not acquired.

 

[United States v. Sharrock, 276 F. 30, 31]

[(DCUS Montana 1921), emphases added]

 

 

It is our understanding that a writ of habeas corpus, like a writ of error, or a writ of certiorari, or a writ of mandamus, should be issued under the seal of the court.  ...  And when so issued it has the test of the clerk as well as the seal of the court.

 

[Ex parte Craig, 282 F. 138, 145, hn. 4]

[(2nd Cir. 1922), emphasis added]

 

 

It will not be denied that a writ is a mandatory precept issued by a court, commanding the person to whom it is addressed to do or refrain from doing some act therein specified.  Because it is a mandatory, and issued by a court, it is an order of the court. ...  A subpoena is a writ or process, and is mandatory in nature, being a positive command. ...  In some of the states statutes may permit a summons or a subpoena to be issued by an attorney, but such statutes do not apply to proceedings in federal courts ….

 

[In re Simon, 297 F. 942, 944-946]

[(2nd Cir. 1924), emphases added]

 

 

This [FRCP] rule [4] and rule 12 of these rules must be construed together.

 

[Sweeney v. Greenwood Index-Journal Co.]

[37 F.Supp. 484 (DCUS S.C. 1941)]

 

 

The question whether an order of attachment is “process in law” is not debatable. ...  When issued out of the United States District Court it must be signed by the Clerk as a ministerial duty.

 

[Brown v. Beckham, 137 F.2d 644, 646, hn. 2]

[(6th Cir. 1943), emphasis added]

 

 

Without personal service of process in accordance with rule [4], or the law of the State in which the suit is filed, a federal district court is without jurisdiction to render a personal judgment against a defendant.

 

[Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc.]

[240 F.2d 814, hn. 3 (5th Cir. 1957), emphases added]

 

 

Inasmuch as all writs and processes issuing from a court of the United States are required, by statute, to be under seal of court and signed by clerk thereof, an injunction signed only by deputy clerk of district court is not void for want of a judicial signature.

 

[Scanbe Mfg. Co. v. Tryon, 400 F.2d 598]

[hn. 1 (9th Cir. 1968), emphases added]

 

 

In order for there to be in personam jurisdiction, there must be valid service of process.

 

[Attwell v. LaSalle Nat. Bank]

[607 F.2d 1157 (5th Cir. 1979)]

 

 

There must be compliance with terms of rule governing service of process and, absent waiver, incomplete or improper service will lead court to dismiss action.

 

[Gibbs v. Hawaiian Eugenia Corp.]

[581 F.Supp. 1269 (S.D.N.Y. 1984)]

[emphases added]

 

 

Federal law governed the effect of the use of an improper name in summons and complaint as that of defendant because subd. (b) of this [FRCP] Rule [4] and Rule 10(a) of these rules had bearing on significance of use of improper names.

 

[Kroetz v. ATF-Davidson Co.]

[102 F.R.D. 934 (E.D.N.Y. 1984)]

 

 

Judgment creditor was not entitled to judgment of condemnation based upon failure of judgment debtor’s employer to answer interrogatories set forth in writ of attachment directed to employer, where writ was not under seal and thus was defective.

 

[Miles v. Gussin, 104 B.R. 553]

[(Bkrtcy. D.C. 1989) emphases added]

 

 

Government's failure to serve defendant with signed and sealed summons could not be regarded as mere oversight warranting perfunctory amendment;  in light of Government's apparent disregard for requirements of rules, summons would not be amended nunc pro tunc to conform to the rules.

 

[U.S. v. National Muffler Mfg., Inc.]

[125 F.R.D. 453 (N.D. Ohio 1989)]

[emphases added]

 


INCORPORATION OF INTERVENOR’S REPLY BRIEF

Appellants hereby incorporate by reference INTERVENOR'S REPLY TO BRIEF FOR THE APPELLEE submitted concurrently with this REPLY BRIEF FOR THE APPELLANTS, as if set forth fully herein.  Appellants demand that this Tenth Circuit Court of Appeals take mandatory judicial notice of INTERVENOR'S REPLY TO BRIEF FOR THE APPELLEE and docket same.

Intervenor has a statutory RIGHT to intervene in this appeal by federal statute at 28 U.S.C. 2403(a) and pertinent Rules of Court.  For all of the reasons elaborated in detail above and below in all other pleadings filed to date by the United States ex rel. Paul Andrew Mitchell subsequent to its timely and proper intervention, the attorneys’ alleged OPPOSITION and BRIEF FOR THE APPELLEE should be ignored, if not also stricken, by this honorable Court of Appeals.

On the merits, this Court should also ORDER the Office of Circuit Clerk to certify to the Office of the United States Attorney General all of Intervenor’s challenges to the constitutionality of certain Acts of Congress previously enumerated in pleadings filed or otherwise lodged to date by Intervenor, and by Appellants, at any stage and at any level in these proceedings.

This Court should also now schedule a proper presentation of law and evidence, if such evidence is otherwise admissible in this case, supporting arguments for and against the constitutionality of said Acts of Congress thus properly challenged to date in this appeal.


STATEMENT OF THE ISSUES

 

1.         First Issue: Lack of jurisdiction.  IRC §§ 7402 and 7403 expressly confer original jurisdiction upon District Courts of the United States (“DCUS”), NOT United States District Courts (“USDC”).  The USDC below refused to acknowledge that the law explicitly grants subject matter jurisdiction to the District Courts of the United States.

 

2.         Second Issue:  Appellants are NOT “taxpayers” as alleged by Plaintiff/Appellee.  Appellants challenged Appellee to place into evidence before the USDC below all proof supporting that allegation.  Appellee refused and/or neglected to exhibit evidence that Appellants are actually (and honestly) “taxpayers” as defined in the IRC.  The USDC below refused and/or neglected to order Plaintiff/Appellee to exhibit verified proof of the allegation that Appellants are "taxpayers".

 

3.         Third Issue:  No STATUTE or REGULATION exists, or has been placed into evidence in the USDC below, authorizing any “kind of tax 1040” and making Citizens of New Mexico “liable” for a tax upon their earnings from occupations of common right.

 

4.         Fourth Issue:  Plaintiff/Appellee has not met all conditions precedent to be able to place “liens” upon the Appellants’ real or personal property.  Without all required conditions precedent having been met, Plaintiff’s INITIAL COMPLAINT is a clear abuse of legal process for the purpose of economic terrorism.

 

5.         Fifth Issue:  IRS is NOT a bona fide agency of the United States Department of the Treasury.  Appellee UNITED STATES OF AMERICA [sic] failed to place into evidence any documentation proving that IRS is a legitimate service, bureau, office or other subdivision within the U.S. Department of the Treasury, as each of those terms occur at 31 U.S.C. 333 (prohibiting any impersonation of the “Department of the Treasury”).

 

6.         Sixth issue:  All federal statutes that fall within subtitle F of the IRC have never really taken effect, notably sections 7401, 7402 and 7403 as cited in the first paragraph on Page 1 of the INITIAL COMPLAINT.  The term “this title” at section 7851(a)(6)(A) must refer to Title 26 of the U.S. Code, if it is not vague.  See standing tests for “vagueness” already provided by the U.S. Supreme Court e.g. Connally et al. v. General Construction Co., 269 U.S. 385, 391 (1926) (“men of common intelligence must necessarily guess at its meaning and differ as to the application of a vague statute”).  Federal judges are men and women of uncommon intelligence (or should be, anyway).

 

7.                  Seventh issue:  Appellants are neither tax protestors nor illegal tax protestors ("ITP").  The RRA98 expressly prohibits IRS officers and employees from designating "taxpayers" as "illegal tax protestors" or any similar designation.  See RRA98, section 3707.

 

8.                  Eighth issue:  The Appellants have appealed all lower court “orders” attempting to attach their property.  Those lower court “orders” were timely shown to lack the seal of the court and the signature of the Clerk of the Court, as required by 28 U.S.C. 1691.


STATEMENT OF THE CASE

The Appellee persists in alleging that the Williamsons are “taxpayers" and that the Williamsons have “federal income tax liabilities”.  However, IRC section 7851(a)(6)(A) specifically states that “the provisions of subtitle F shall take effect on the day after the date of enactment of this title”.  What exactly is the meaning of “this title” here?

Within Chapter 64 entitled Collections, section 6321, Lien for Taxes, is found in subtitle F;  and, since “this title” (Title 26) has never been enacted into positive law by Act of Congress and never published anywhere in the Federal Register, such sections have no general applicability and no legal effect upon the Williamsons.  They are, at best, provisions intended to enforce federal municipal statutes with no territorial application anywhere within New Mexico.  See Federal Register Act at 44 U.S.C. §§ 1501, 1507.

It is not "tax protestor rhetoric" to state that Title 26 and IRC subtitle A do not apply to New Mexico Citizens.  It has been held by the U.S. Supreme Court that such legislation is prima facie territorial unless it explicitly states that such legislation is made applicable to the fifty (50) States of the Union.  Compare IRC 4612, where the “50 States” are mentioned as such.

In her REPLY BRIEF Ms. Wolfinger and the USDC below never placed into evidence any proof that the tax "laws” in question are applicable anywhere other than the areas over which the Constitution grants exclusive legislative authority to the Congress of the United States.

 

"All legislation is prima facie territorial."

American Banana Co. v. United Fruit Co., 213 U.S. 347, 356-357 (1909)

 

"Legislation is presumptively territorial and confined to limits over which the law-making power has jurisdiction."

New York Central R.R. Co. v. Chisholm, 268 U.S. 29, 31-32 (1925)

 

...[T]he "canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States ...."

U.S. v. Spelar, 338 U.S. 217, 222, 70 S.Ct. 10 (1949)

 

Arizona and New Mexico became States in 1912 & 1914 on an equal footing with the original thirteen States, so all these Acts like Title 26, Internal Revenue Code (“IRC”), Taylor Grazing Act (passed in 1934), and FLIPMA passed in 1976 and codified at Title 43 of the U.S. Code, are all territorial law.

 

(a)        Case was brought by an Assistant U.S. Attorney Waymon G. DuBose, Jr., under the name of U.S. Attorney David C. Iglesias for Plaintiff UNITED STATES OF AMERICA [sic].  David C. Iglesias lacked proper credentials to hold that office and at this time is out of office.  Appellee's attorney FAILED to address this problem in her REPLY BRIEF.

 

(b)        DOJ’s Attorneys lack powers of attorney to represent UNITED STATES OF AMERICA [sic].  Appellee's attorney FAILED to address this problem in her REPLY BRIEF.

 

(c)        Plaintiff alleged authority under Title 26, U.S. Code, sections 7402 and 7403.  Both sections expressly grant jurisdiction to District Courts of the United States (“DCUS”) NOT to United States District Courts (“USDC).  Therefore, the lower court lacked jurisdiction to even hear the action in the first instance.  Appellee's attorney FAILED to address this problem in her REPLY BRIEF.

 

(d)        Appellants properly challenged jurisdiction from the beginning and continuously thereafter.  Appellee's attorney FAILED to address this problem in her REPLY BRIEF.

 

(e)        DOJ Attorney Waymon G. DuBose, Jr. changed the name of the alleged Plaintiff three (3) times within the first three pages of the COMPLAINT.  Doc. #1, pgs. 1, 2, 3.  Appellee's attorney FAILED to address this problem in her REPLY BRIEF.

 

(f)         USDC refused to recognize Appellants’ timely and proper jury demands, thereby violating their Rights.  Appellee's attorney FAILED to address this problem in her REPLY BRIEF.

 

(g)        UNITED STATES OF AMERICA [sic] lacks capacity and standing to sue and be sued as such.  Congress has never conferred legal standing upon such an entity.  Compare 28 U.S.C. §§ 1345 and 1346, which expressly confer legal standing upon the “United States” (federal government) to sue and be sued, respectively.  Appellee's attorney FAILED to address this problem in her REPLY BRIEF.

 


STATEMENT OF FACTS RELEVANT TO THE

ISSUES PRESENTED FOR REVIEW

 

(a)        Lack of jurisdiction under Title 26, U.S. Code, sections 7402 and 7403 for the USDC below to hear the action in the first instance.  Compare IRC §§ 7402 and 7403.

 

(b)        Defendants/Appellants demanded a jury trial from the beginning.  See Doc #2, 11, 32.

 

(c)        United States District Court is a “territorial” tribunal that lacks jurisdiction within the boundaries of New Mexico.  Strictly speaking, it is not even a “Court”.  Article I.

 

(d)        Defendants/Appellants are New Mexico Citizens NOT federal citizens;  and, because subtitle A of the Internal Revenue Code is federal “municipal law” applicable only to federal citizens and resident aliens, IRC subtitle A is simply NOT applicable Appellants.

 

(e)        Plaintiff/Appellee alleges that Defendants/Appellants owe some “kind of tax 1040” but fails or refuses to exhibit any statute or regulation making New Mexico Citizens specifically “liable” for a tax upon their earnings from occupations of common right.

 

(f)        Plaintiff/Appellee failed or refused to enter into evidence a valid NOTICE OF ASSESSMENT AND DEMAND FOR PAYMENT as a condition precedent to filing a NOTICE OF FEDERAL TAX LIEN against Defendants/Appellants.

 

(g)        Plaintiff/Appellee failed or refused to place into evidence any valid ASSESSMENT CERTIFICATES signed by a duly authorized Assessment Officer.  All Forms 4340 offered by Plaintiff/Appellee for the record are computer printouts only “certified” by an “administrative technician”, not an Assessment Office, and not under penalties of perjury as required by IRC 6065.  These forms 4340 do not conform to the statutes, regulations or IRM provisions governing proper ASSESSMENT CERTIFICATES.  Therefore, all of Appellee’s “liens” are fraudulent for lacking conditions precedent.

 

(h)        IRC section 7851(a)(6)(A) is controlling because Title 26 of the U.S. Code has never been enacted into positive law as such.

 

The Fifth Amendment prohibits all deprivations of life, liberty, or property without due process of law.  Due process of law is another honored and well developed feature of American Constitutional practice.  Put simply, it requires Notice and Hearing before any property can be seized by any federal government officers, employees, agents, departments or agencies.

“A fundamental requisite of due process of law is the opportunity to be heard.”  Grannis v. Ordean, 234 U.S. 385, 394 (1914).  “It is an opportunity which must be granted at a meaningful time and in a meaningful manner.”  Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (emphases added).

For more than thirty years (30) the Williamsons have been requesting the government to provide proof that they are “liable” for a tax called “kind of tax 1040”.  Their requests and demands have been met with silence, malicious retaliation, and name-calling such as "frivolous" rather than a truthful exhibition of a statute and regulation making “kind of tax 1040” a lawful tax imposed upon the Citizens of New Mexico, or any other State of the Union for that matter.

The Williamsons have repeatedly requested and demanded that the Appellee exhibit the volume and page of the Federal Register wherein such a tax was made applicable to the general public inhabiting the 50 States of the Union.  See 44 U.S.C. 1501, 1507.

Intervenor United States ex rel. served Treasury with a SUBPOENA for a liability statute for IRC subtitle A, but that SUBPOENA is long overdue and now in default.  Appellee refuses to place into evidence any statute and regulation making the Citizens of the 50 States of the Union specifically “liable” for a direct tax upon their earnings from occupations of common right.

A unapportioned direct tax on earnings from occupations of common Right is unconstitutional, and so the U.S. Supreme Court correctly held in the Pollock [2] decision.

Absolutely NO federal statute exists creating a “kind of tax 1040” and imposing a direct tax upon the earnings of New Mexico State Citizens engaged in occupations of common right.

Absolutely NO federal regulation exists implementing “kind of tax 1040” and making the Williamsons “liable” for a direct tax upon their earnings from occupations of common right.

The government, in violation of the Williamsons’ First Amendment Rights to petition the Government for a Redress of Grievances, fails to answer and exhibit the statutes and regulations supporting their allegations that the Williamsons “owe” some “kind of tax 1040”.  Cf. “Redress” in Bouvier’s Law Dictionary (1856) (the act of receiving satisfaction for an injury sustained).

The government falsely alleges the Williamsons are “taxpayers” thus implying to this and other Courts that the Williamsons are either government employees, “citizens of the United States” or “residents of the United States” and not Citizens of New Mexico (their true status).

When challenged, the government stands silent without evidence supporting its allegation that the Williamsons are “taxpayers” in the sense that they owe some “kind of tax 1040”.  No number of Article IV USDC decrees to the contrary are able to alter the FACTS that the Williamsons are private sector Citizens of New Mexico who have been lawfully engaged in occupations of common Right for the entire period in question.

They are not federal citizens;  they are not resident aliens;  and they are not government “employees”.  See IRC section 3401(c) (term “employee of a corporation” is conspicuously absent from that definition!)  Confer at Inclusio unius est exclusio alterius in Black’s Law Dictionary, Sixth Edition (an irrefutable inference must be drawn that whatever was omitted or excluded from a federal statute was intended to be omitted or excluded by Act of Congress).

For example, IRC section 7701(a)(26) specifically defines “trade or business” as follows:

The term “trade or business” includes the performance of the functions of a public office.

 

No other private sector occupation, trade, craft or business is “included”;  therefore, all others are deliberately excluded by intentional Act of Congress.  Inclusio unius est exclusio alterius!

The Williamsons are NOT now, nor have they ever been, performing any “functions of a public office” as defined above.

The Williamsons have discovered that IRS Form 1040 does not comply with the Paperwork Reduction Act (“PRA”).  Section 3512 of that PRA titled “Public Protection” reads as follows:

 

(a)               Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter {44 USCS Sec. 3500; et seq.} if --

 

(1)               the collection of information does not display a valid control number assigned by the Director in accordance with this subchapter [44 USCS Sec. 3501 et seq.];  or

 

(2)               the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.

 

The Williamsons have also discovered that the IRS does not comply with the Administrative Procedures Act (“APA”).  The APA protects the public at 5 U.S.C. 552(a)(1):

 

... a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.

 

The Williamsons have also discovered that the IRS does not comply with the Federal Register Act either.  The Federal Register Act protects the general public at 44 U.S.C. 1507:

 

A document required to be published in the Federal Register is not valid as against a person who has not had actual knowledge of it until the duplicate originals or certified copies of the document have been filed with the Office of the Federal Register and a copy made available for public inspection.

 

The Williamsons have discovered that the Internal Revenue Service is not a bona fide service, bureau, office or other subdivision within the U.S. Department of the Treasury, as those terms occur at 31 U.S.C. 333.  In Chrysler Corp. v. Brown, 441 U.S. 281, 297 (1979) at footnote 23, the U.S. Supreme Court admitted that no organic Act of Congress creating the IRS could be found, after the high Court searched all the way back to the Civil War for such an organic Act.

The Williamsons have discovered that subtitle A of the IRC is federal “municipal law” applicable only to Washington, D.C., and to the enclaves, territories and possessions over which Congress has exclusive legislative authority.

For example, the federal UCC was enacted expressly for the District of Columbia.  See also the special definition of “State” at IRC 3121(e)(1).

New Mexico is a sovereign State admitted to the Union on an equal footing with the original thirteen States of the Union.  The Congress does not have exclusive legislative authority inside New Mexico State.  Appellee's attorney, Gretchen M. Wolfinger, entirely failed to address this key problem anywhere in her REPLY BRIEF.

Concerning the standing decision of the U.S. Supreme Court in Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 92 (1959), the excellent abstract published in the 1962 edition of American Jurisprudence states:

 

[A]n administrative agency may not create a criminal offense or any liability not sanctioned by the lawmaking authority, especially a liability for a tax or inspection fee.

 

In spite of all these standing decisions of the U.S. Supreme Court, Appellee, Ms. Wolfinger, and others are still unable to produce and place into evidence any proof of a Statute at Large creating a specific liability for federal income taxes imposed by IRC subtitle A and making New Mexico Citizens specifically liable for an unapportioned direct tax upon their earnings from occupations of common Right.

Appellee alleges that IRS Forms 4340 are lawful ASSESSMENT CERTIFICATES, but they are not dated and signed under penalties of perjury by a duly delegated Assessment Officer, as required by IRC section 6065.[3]  See also Brafman v. U.S., 384 F.2d 863 (5th Cir. 1967), 26 CFR 301.6203-1, and all pertinent provisions of the Internal Revenue Manual (“IRM”) which now have the force and effect of law by virtue of the IRS Restructuring and Reform Act of 1998 (“RRA98”).

IRS employees can now be disciplined, or terminated, for violating any provisions of that IRM.

The NOTICES OF FEDERAL TAX LIEN alleged as admissible evidence are likewise not signed under penalties of perjury as required by IRC 6065.

In California Bankers Ass’n v Shultz, 416 U.S. 21 (1974), the Supreme Court specifically held that “without a regulation there are NO civil or criminal penalties for not complying (emphasis added).  Therefore, unless and until the Appellee, Ms. Wolfinger, the USDC below and this Circuit Court can produce a "regulation" and Appellants can see clearly that it is applicable to them, then Appellants are under absolutely NO obligation to comply with a collection of information “Form 1040" that also is in violation of requirements set out in the Paperwork Reduction Act, in the Administrative Procedures Act and in the Federal Register Act.

Appellee, Ms. Wolfinger and others here are effectively urging this Court merely to assume facts not in evidence and to hold in their favor on that hollow and rebuttable assumption.

“It is obvious that these decisions in principle rule the case at bar if the word ‘income’ has the same meaning in the Income Tax Act of 1913 that it had in the Corporation Excise Tax Act of 1909, and that it has the same scope of meaning was in effect decided in Southern Pacific Co. v. Lowe, 247 U.S. 330, 335, where it was assumed for the purposes of decision that there was no difference in its meaning as used in the act of 1909 and in the Income Tax Act of 1913.  There can be no doubt that the word must be given the same meaning and content in the Income Tax Acts of 1916 and 1917 that it had in the Act of 1913.  When to this we add that in Eisner v. Macomber, a case arising under the same Income Tax Act of 1916 which is here involved, the definition of ‘income’ which was applied was adopted from Strattons’ Independence v. Howbert, arising under the Corporation Excise Tax Act of 1909, with the addition that it should include ‘profit gained through sale or conversion of capital assets,’ there would seem to be no room to doubt that the word must be given the same meaning in all Income Tax Acts of Congress that was given to it in the Corporation Excise Tax Act, and that what that meaning is has now become definitely settled by decisions of this Court.  Merchants’ Loan & Trust Co. v. Smietanka, 255 U.S. 509, 519 (1921) (emphases added).

"... [A] statute which imposes a tax upon an assumption of fact which the [presumed] taxpayer is forbidden to controvert is so arbitrary and unreasonable that it cannot stand under the Fourteenth Amendment."  Heiner v. Donnan, 285 U.S. 312, hn. 2 (1932) (emphasis added).

The IRS lacks valid ASSESSMENTS to support NOTICES OF FEDERAL TAX LIEN filed with the Bernalillo County Clerk.  See Brafman v. United States, 384 F.2d 863 (1967);  also Geiselman et al. v. U.S., 92-1 USTC ¶50200.

After willfully initiating an action by filing and recording NOTICES OF FEDERAL TAX LIEN in the public records of the Bernalillo County Clerk, Appellee failed to answer and then failed to prosecute the action which it had initiated.

Said NOTICES OF FEDERAL TAX LIEN are not supported by valid ASSESSMENT CERTIFICATES, and absolutely NO valid NOTICES OF ASSESSMENT AND DEMANDS FOR PAYMENT have ever been served upon Appellants.

See Linwood Blackstone et al. v. United States of America, 778 F.Supp. 244, 247 (USDC D. Md. 1991), quoting:

 

Without a valid notice and demand there can be no tax lien;  without a tax lien, the IRS cannot levy against the taxpayers property .…  This Court concludes, consistent with the views expressed in Berman, Marvel, and Chila that the appropriate ‘sanction’ against the IRS for its failure to comply with the 6303(a) notice and demand requirement is to take away its awesome nonjudicial collection powers.  citing Myrick v. United States, 296 F.2d. 312 (5th Cir. 1961).

 

The USDC below ignored the Appellants’ objection that no valid NOTICE OF ASSESSMENT AND DEMAND FOR PAYMENT was ever admitted into evidence, and Appellee has still failed to produce and place into evidence before this Court a single valid NOTICE OF ASSESSMENT AND DEMAND FOR PAYMENT.

 

In reality, the courts have created a legal fiction in which the submission of Form 4340, which lists a “23C Date,” creates a presumption that a Form 23C was signed.  While the courts have said that this presumption is rebuttable by the “taxpayer”, the IRS concedes that “when the Debtors argue that the 23C Forms were never produced, it is because they probably do not physically exist.”  In other words, the IRS gets the benefit of a presumption that they admit is likely false.  March v. IRS, 335 F.3d 1186 (10th Cir. 2003)

 

The IRS never obtained a WARRANT OF DISTRAINT from any New Mexico Court having jurisdiction, or any other court, before selling the property in question in this action[4].  See United States v. O’Dell, 160 F.2d 304 (6th Cir. 1947), and G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977).

Federal UCC 9-401 requires appearance in a State Court prior to the issuance of a WARRANT OF DISTRAINT.  A denial of this constitutes a denial of due process of law.

Because the IRS agents failed to obtain a proper WARRANT OF DISTRAINT, this sale becomes an illegal conversion in violation of New Mexico State law at NMSA 58-13A-7.  Appellee’s agents have conspired and unlawfully aided and abetted this crime of conversion.

The United States (federal government) can be enjoined to prevent the destruction of a business which might otherwise occur as a direct consequence of enforcing the assessment and/or collection of income taxes.  Specifically, the Anti-injunction Act cannot be enforced to destroy a business.  See John M. Hirst & Co. v. Gentsch, 133 F.2d 247, hn. 4 (6th Cir. 1943);  Midwest Haulers v. Brady, 128 F.2d 496, hn. 3 (6th Cir., 1942);  and, Long v. United States, 148 F. Supp. 758 (1957).


SUMMARY OF THE ARGUMENT

Appellee filed unverified and uncertified NOTICES OF FEDERAL TAX LIEN in the Public Records of the Bernalillo County Clerk, thereby injuring the Williamsons’ Rights to property, good name, good credit and reputation.

Appellee FAILED to issue valid NOTICES OF ASSESSMENT AND DEMANDS FOR PAYMENT before filing NOTICES OF FEDERAL TAX LIEN with the Bernalillo County Clerk.

Appellee has FAILED to pay into the Treasury of the United States any of the money taken from the Appellants and to credit those amounts to the account(s) of Appellants.

Appellee has converted all of the money and property taken from Appellants to the personal use and benefit of Appellee’s agents, in direct violation of the law.  See IRC 7809.

Upon demand, Appellee has refused, failed and/or neglected to provide Appellants with a spreadsheet accounting of the money and property taken from Appellants.

Appellee failed to respond to a single issue contained in APPELLANTS’ INFORMAL OPENING BRIEF.

Appellee lacks lawful authority for its actions and, in that light, its several agents have now become personally liable for the injuries they have caused.  Cf. “Respondeat superior” in Black’s Law Dictionary, Sixth Edition (also known as vicarious liability).

The Appellants have continually relied upon holdings of the U.S. Supreme Court as the proper foundation for their beliefs and their position that the federal government is wrongfully attempting to apply federal municipal "Codes" like “Morse Codes” against Appellants.

If the doctrine of stare decisis has any meaning at all, it requires that People in their everyday affairs be able to rely on decisions of the U.S. Supreme Court and not be needlessly penalized for such reliance.  See U.S. v. Mason, 412 U.S. 391, 399-400 (1973).


CONCLUSIONS

For the foregoing reasons, all "orders" of the United States District Court below should be vacated promptly, and this action should be remanded to a constitutional Article III District Court of the United States (“DCUS”) for a full and meaningful jury trial on the issues.

The Williamsons are entitled to a full refund of all money and property taken from them by the use of illegal liens and levies in absence of NOTICE OF ASSESSMENT AND DEMAND FOR PAYMENT Form 17A[5].  See United States v. Berman, 825 F.2d 1053, 1056-1057 (6th Cir. 1987);  and IRC section 6303(a).  No Form 17A is evident anywhere in the Record.

Eileen J. O’Connor dba Assistant Attorney General, Andrea R. Tebbets dba Attorney, Gretchen M. Wolfinger dba Attorney, and David C. Iglesias dba U.S. Attorney, are all in violation of the McDade Act,[6] and all lack proper powers of attorney and other credentials required to appear legally on behalf of the Appellee UNITED STATES OF AMERICA [sic] in this matter.  See definition of “Union” in Bouvier’s Law Dictionary (1856 Edition).

In this context, please see U.S. v. High Country Broadcasting Co., 3 F.3d 1244 (9th Cir. 1993), because said attorneys’ attempt to appear on behalf of the named Plaintiff assumed powers of attorney that did not exist, as a matter of fact and as a matter of law.

See also 18 U.S.C. 912 (prohibiting impersonation of any officer of the United States), 18 U.S.C. 1341 (prohibiting mail fraud), and 18 U.S.C. 1961 et seq. (prohibiting racketeering).

All claims that Appellants’ pleadings are “frivolous” -- in all of Appellee’s previous pleadings and in its REPLY BRIEF -- are hereby REFUSED FOR CAUSE nunc pro tunc.

The government and the courts know, or should know, that no statute or regulation exists for any “kind of tax 1040”;  they routinely brand pleadings as “frivolous” when that term is really just another deliberately deceptive “CODE” WORD meaning:

“We won't deal with this because it will expose our protection racket.”

The government and the courts know, or should know, that United States District Courts[7] in the past lacked original jurisdiction in all actions brought against the Williamsons.

The government and the courts know, or should know, that United States District Courts are not constitutional Article III federal courts.  Balzac v. Porto Rico, 258 U.S. 298, 312 (1922).

The government and the courts know, or should know, that the U.S. Tax Court is the old Board of Tax Appeals and it is not a true constitutional Article III federal court either.

Appellee alleges on Page 6 of its REPLY BRIEF that -- somehow -- IRC section 1 makes the Williamsons specifically “liable” when no liability clause is evident anywhere in that section.  On this point, please compare IRC section 3403, which demonstrates the language and structure of a clear and unmistakable liability statute for subtitle Cemployment taxes”.

IRC section 1 is implemented by the regulation at 26 CFR 1.1-1, but that regulation is applicable only to federal citizens and resident aliens, which the Williamsons are not.

Furthermore, IRS petitioned the OMB for a control number to implement 26 CFR 1.1-1, and the control number given to the IRS was 1545-0067.  That control number was assigned to IRS Form 2555 entitled “Foreign Earned Income”.  The Williamsons do not have “Foreign Earned Income”;  once again, that term applies only to federal citizens and resident aliens.

Appellee and this Court know, or should know, that the general term “income” is not defined anywhere in the IRC.  See U.S. v. Ballard, 535 F.2d 400, 404, hn. 2 (8th Cir. 1976).

Appellee and this Court are also fully aware that the U.S. Supreme Court has held the definition to mean “corporate profit”[8].  The Williamsons do not have any “corporate profit” and the government is fully aware of this fact.

Appellee UNITED STATES OF AMERICA [sic] is not incorporated in New Mexico and never has been incorporated in New Mexico.

The government continues to perpetrate these acts of malicious economic terrorism against the Williamsons in an effort to induce them and other Citizens into complying, under duress, with their illegal taxing scheme.  That scheme has become a vicious extortion racket just like a Plank in the Communist Manifesto -- punishing “rebels” -- with deliberate intent to retaliate aggressively against anyone who learns these facts and laws, and acts accordingly.

The COUNTERCLAIM by John S. Williamson and Nancy L. Williamson et.al. in this action clearly sets forth valid claims for which the requested relief can be granted by the DCUS.

Under the U.S. Constitution, the fundamental Right to petition the government for a redress of grievances is NOT a Right that is expressly guaranteed there, only to be so circumscribed that it exists in principle but not in fact and not in actual practice.

The Right to petition the Government for a redress of grievances is nothing short of the Capstone Right through which all other Rights are peacefully enforced and the sovereignty of the People is exercised directly by Citizens of the United States of America, like Appellants.

In order for the Government to justify its failure to respond, it must be able to show that its non-responsiveness was caused by something more than a mere desire to avoid discomfort, unpleasantness or practical difficulty.  There must be a clear and present reason for the federal government to trespass upon any fundamental Rights of the Appellants.  No such reason is evident anywhere in the official record before this Court of Appeals.

Wolfinger’s limited response to the OPENING BRIEF is nothing more than a wearisome diatribe of nefarious invective, and inflammatory allegations, abusing the insult "frivolous".  Wolfinger et al. do not support their position with the Constitution, statutes, regulations, Rules of Court or Supreme Court decisions, because they cannot.  They cannot exhibit any powers of attorney to represent UNITED STATES OF AMERICA, because no such powers of attorney exist.  Their BRIEF FOR THE APPELLEE really should be stricken from the record because it is so non-responsive and mostly irrelevant to the facts and laws at bar.  Widespread abuse of the term “frivolous” implies special knowledge of the future, which is a preposterous absurdity.

The Appellee relies in part on unpublished decisions of the Tenth Circuit.  However, unpublished decisions have been held to be unconstitutional by the Eighth Circuit in Anastasoff v. United States of America, No. 99-3917EM, citing Marbury v. Madison, 1 Cranch 137, 177-78 (1803);  James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991);  Cohens v. Virginia, 6 Wheat. 264, 399 (1821);  and, Article III, Section 1, Clause 1 in the U.S. Constitution (the judicial Power of the United States, NOT of the UNITED STATES OF AMERICA).

All decisions of the Tenth Circuit are in jeopardy of being invalid for the very reason that the judges sitting on the Tenth Circuit cannot exhibit and refuse to exhibit the four (4) credentials required of the positions they claim to hold.  See Article VI, Section 3, in chief.

Without all the proper credentials in place and in custody of the Clerk of Court at the time of these decisions, those individuals are not duly commissioned Circuit Judges, and their decisions and pronouncements are consequently criminal and not lawful.  18 U.S.C. 912, 1001.

Appellants have demanded exhibition and proof that all individuals claiming to be Tenth Circuit Judges timely provide certified copies of all four (4) of their required credentials.

 

WHEREFORE, Appellants respectfully request justice(s) or judge(s) who are fully and properly credentialed to preside upon this Tenth Circuit Court, to enter a lawful ORDER:

 

a.                   granting a PRELIMINARY INJUNCTION against the United States (federal government), the Internal Revenue Service, the Department of Justice and any other agency of the United States (federal government) that arguably may act under color of law in this matter, from taking any further retaliatory actions against any named Appellants in this proceeding;

b.                  vacating all “orders’ issued to date by the United States District Court for the District of New Mexico, and remanding this matter to the constitutional Article III District Court of the United States for the Judicial District of New Mexico for a full and meaningful review of the case, including a jury trial (of course);

c.                   granting further relief to the Appellants by commanding the United States (federal government) to meet its obligations under the U.S. Constitution, Laws, Treaties and applicable rules and regulations, by entering into good faith exchanges with the Appellants, to provide Appellants with well documented and specific answers to the reasonable questions they have asked, and to address each of the specific issues they raised in their proper and timely COUNTERCLAIM;

d.                  freezing all assets of the Internal Revenue Service pending final disposition of this case as requested in the pending MOTION FOR PRELIMINARY INJUNCTION;

e.                   directing the United States Postal Service to re-route all incoming U.S. Mail addressed to the Internal Revenue Service to the U.S. Department of the Treasury, for the purpose of depositing all tax receipts daily into the Treasury of the United States as expressly required by the federal statute at IRC section 7809;

f.                    granting any and all other relief to the Appellants as this honorable Court may deem just and proper;  and,

g.                   retaining jurisdiction of this action in order to ensure full compliance with all of the Court’s decisions, orders, opinions and judgments.


STATEMENT REGARDING ORAL ARGUMENT

Defendants/Appellants respectfully inform the Court that they believe oral argument in this case is necessary and that it would be helpful to the Court.


VERIFICATION

Under 28 U.S.C. 1746(1), we declare under penalty of perjury, under the laws of the United States of America (aka 50 States of the Union), without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of our current information, knowledge, and belief, so help us God.  See Supremacy Clause (Constitution, Laws and Treaties of the United States are the supreme Law of the Land).

 

Respectfully submitted:

 

 

Dated:  June 6, 2007

 

 

/s/ John S. Williamson

__________________________

John S. Williamson, in Pro Per

 

/s/ Nancy L. Williamson

__________________________

Nancy L. Williamson, in Pro Per

 

/s/ John G. Williamson

__________________________

John G. Williamson, in Pro Per

 

/s/ David A. Williamson

__________________________

David A. Williamson, in Pro Per

 

/s/ Garrett J. Williamson

__________________________

Garrett J. Williamson, in Pro Per

 

/s/ Deborah Kruhm

__________________________

Deborah Kruhm, in Pro Per

 

1277 Historic Rte. 66E.

Tijeras, [87059]

NEW MEXICO, USA

 

Tel:  (505) 281-5788


CERTIFICATE OF COMPLIANCE

Please complete one of the sections:

 

 

Section 1. Word count

 

As required by Fed. R. App. P. 32(a)(7)(C). I certify that this REPLY BRIEF is proportionally spaced and contains 8991 words.

 

 

Complete one of the following:

 

    X       I relied on my word processor to obtain the count and it is [name word processor software]:  Microsoft Word

 

______  I counted five characters per word, counting all characters including citations and numerals.

 

Section 2.  Line count

 

My REPLY BRIEF was prepared in a mono-spaced typeface and contains 934 lines of text.

 

 

I certify that the information on this form is true and correct to the best of my knowledge and belief formed after reasonable inquiry.

 

 

 

/s/ John S. Williamson, Sui Juris, in Pro Per

____________________________________________________

John S. Williamson, Appellant Sui Juris and In Propria Persona

All Rights Reserved under all forms of law

without prejudice nunc pro tunc

 


CERTIFICATE OF SERVICE

 

It is hereby certified that an original and seven (7) copies of this REPLY BRIEF were mailed to the Clerk by first class mail on this 6th day of June, 2007, and that service of this brief was made upon Appellee’s Counsel, on this 6th day of June, 2007 two paper copies of the REPLY BRIEF in an envelope properly addressed as follows:

 
Gretchen M. Wolfinger, Attorney
Tax Division, Department of Justice

P.O. Box 502

Washington 20044

DISTRICT OF COLUMBIA, USA

 

 

/s/ John S. Williamson, Sui Juris, in Pro Per

____________________________________________________

John S. Williamson, Appellant Sui Juris and In Propria Persona

All Rights Reserved under all forms of law

without prejudice nunc pro tunc



[1]  Refers to the original COMPLAINT.

[2] Pollock v. Farmers' Loan, 157 U.S. 429, 554

[3]  See 34 Am Jur 2d ¶70476, page 678.

[4]  UNITED STATES of America v. John S. Williamson, 1 F.3d 1134-1136, (10th Cir. 1993)

[5]  See Mertins Law of Federal Income Taxation, Vol. 13, July 1987, monthly updates, secs. 49, 187.

[6]  28 U.S.C §§ 530B, 541.

[7]  Balzac v. Porto Rico, 258 U.S.298, 312, (1922);  see also Mookini v. U.S., 303 U.S. 201 (1938)

[8]  Merchants’ Loan & Trust Co. v. Smietanka, 255 U.S. 509 (1921)