Chapter 9:
The Law of Presumption
A nonresident
alien who has filed one or more Forms 1040 in the past is presumed by the IRS to be an individual who was required to file
those forms. The filed forms entitle
the IRS to presume that this individual either was required to file, or elected
to be treated as one who is required
to file. Such a requirement would be
triggered by changing to resident status, changing to citizen status, and/or
opting to derive income from a source inside the federal zone (like federal
employment). Accordingly, the IRS is
entitled to presume that this nonresident alien has "volunteered" to
become a "taxpayer", that is, a person who is subject to any internal
revenue tax.
Quite apart from the day-to-day
assumptions we all make about life in general, the term "presumption"
has a very special meaning in law. A
presumption in law is a logical inference which is made in favor of a
particular fact. The Uniform Commercial
Code ("UCC") defines "presumption" and "presumed"
as follows:
"Presumption" or
"presumed" means that the trier of fact must find the existence of
the fact presumed unless and until evidence is introduced which would support a
finding of its nonexistence.
[UCC 1-201 (31)]
Black's Law Dictionary,
Sixth Edition, defines "presumption" as follows:
A presumption is a rule of law, statutory
or judicial, by which finding of a basic fact gives rise to existence of
presumed fact, until presumption is rebutted. ... A legal device which operates
in the absence of other proof to require that certain inferences be drawn from
the available evidence.
There are, in
law, two different and directly opposite kinds of presumptions: a conclusive
presumption and a rebuttable presumption.
A conclusive presumption is
one for which proof is available to render some fact so "conclusive",
it cannot be rebutted. To
"rebut" a fact is to expose it as false, to disprove it. Thus, a "rebuttable fact" is one
which can be disproven and exposed as false. In other words, a rebuttable fact is a lawyer's way of describing
a fact that is not a fact. (1984
was a long time ago; the book 1984
is even older than that.)
The opposite kind of presumption is a
rebuttable presumption. A rebuttable presumption is a one that can
be overturned or disproven by showing sufficient proof. We are interested primarily in this second
type of presumptions -- rebuttable presumptions -- because the Code of Federal
Regulations makes explicit certain presumptions about nonresident aliens. The regulations have this to say about the
proof of alien residence:
Proof of
residence of aliens.
(a) Rules
of evidence. The following rules of
evidence shall govern in determining whether or not an alien within the United
States** has acquired residence therein for purposes of the income tax.
(b) Nonresidence
presumed. An alien by reason of his alienage, is presumed to be a nonresident
alien.
[26 CFR 1.871-4, emphasis added]
The
regulations are very clear about a key presumption which the IRS does make
about aliens. Because of their
"alienage", that is, because of their status as aliens in the first
place, all aliens are presumed by
Treasury regulations to be nonresident aliens.
This presumption is built into the law, because the Code of Federal
Regulations is considered to have the force of law.
(The CFR is judicially noticed, and
courts have ruled that the CFR is a supplement to the published Federal
Register, which puts the general public on actual notice too.)
This presumption is not a conclusive presumption, however; it is a rebuttable
presumption. The regulations establish
the rules by which this presumption can be rebutted or disproven, as follows:
Other
aliens. In the case of other [not
departing] aliens, the presumption as to the alien's nonresidence may be
overcome by proof --
(i)
That the alien has filed a declaration
of his intention to become a citizen of the United States** under the
naturalization laws; or
(ii)
That the alien has filed Form 1078 or
its equivalent; or
(iii) Of acts and statements of the alien showing a
definite intention to acquire residence in the United States** or showing that
his stay in the United States** has been of such an extended nature as to
constitute him a resident.
[26 CFR 1.871-4]
Filing a
declaration of intent to become a U.S.** citizen
will "rebut the presumption".
Acts or statements by aliens showing a definite intent to acquire residence will also "rebut the
presumption".
Form 1078 is a Certificate of Alien
Claiming Residence in the United States**.
The IRS Printed Product Catalog, Document 7130, describes this
form as follows:
1078 171951 (Each)
Certificate
of Alien Claiming Residence in the United States
Who May File. A resident alien may file the original and one copy of this
certificate with the withholding agent to
claim the benefit of U.S.** residence for income tax purposes. (A withholding agent is responsible for
withholding tax from your income.) D:RF:F
Tax Form or Instruction
[page 10, emphasis added]
Notice, in
particular, the explicit reference to "the benefit of U.S.** residence for income tax purposes". What are the benefits of U.S.** residence
for income tax purposes? Recall, from
the previous chapter, the "benefits" of being under the protection of
Congress and thereby subject to its exclusive jurisdiction. The actual scope of Social Security, for
example, is limited to the federal zone, except for those outside the zone who
wish to partake of its "benefits" voluntarily. Under the law of presumption, your use of a
Social Security Number can be seen by the federal government as proof that you
have opted to obtain benefits from the federal zone. Form 1078 is likewise ready-made for those who begin as nonresident aliens, but later
opt to declare themselves "resident" in the United States** in order
to claim the benefit of that "residence". Simply stated, Form 1078 declares a nonresident alien to be a
"resident" for income tax purposes.
It moves nonresident aliens out of the square at row 2/column 2 in The Matrix, and into the square at row
1/column 2.
There are
other ways by which the presumed nonresidence of aliens can be rebutted, or
disproven, thereby moving their four-square checkers into a square that is
within the federal zone. The
regulations make reference to Form 1078 or
its equivalent. (Try to find a
definition of the term "equivalent" in the statute or its
regulations.) If nonresident aliens
sign a Form W-4, for example, they are presumed to be government employees with
income from a source inside the
federal zone. Employers are to treat
all employees as "residents" and to withhold pay as if the employers
have not been instructed otherwise.
Notice how
the presumption has shifted. Contrary to
the regulations at 26 CFR 1.871-4 (quoted above), employers are told by the IRS
to make the opposite "presumption" about the residence of their
employees, even if they are not true "employees" as that term is
defined in the IRC. If individuals have
W-4 and W-2 forms, the presumption is that they were either required to sign
these forms, or they have made elections to be treated as residents. Recall that the instructions for Form 1040NR
describe the "election to be taxed as a resident alien". This is accomplished by filing an income tax
return on Form 1040 or 1040A, and attaching a statement confirming the
"election".
An extremely
subtle indicator of one's status is the perjury oath which is found on IRS
forms. Under Title 28 of the U.S. Code,
Section 1746, there are two different perjury oaths to which penalties
attach: one within the United States**, and one without the United States** (see Appendix R
for the precise wording of 28 U.S.C. 1746).
If an oath is executed without
the United States**, it reads as follows:
I declare ... under the laws of the United States of America that the foregoing
is true and correct.
[emphasis added]
If an oath is executed within the United States**, it reads as follows:
I declare ...
that the foregoing is true and correct.
Thus, your signature under the latter oath can be
presumed to mean that you are already subject
to the jurisdiction of the United States**.
This latter oath is the one found on IRS Form 1040.
Federal
courts now appear to be proceeding on the basis of the presumption that we are
all "citizens of the United States**" because the courts have
shifted onto defendants the burden of proving that they are not "citizens
of the United States**". Despite
the obvious logical problem that arises from trying to prove a negative, the
United States District Court in Delaware ruled as follows when it granted an
IRS petition to enforce a summons:
Defendant's protestations to effect that he
derived no benefit from United States government had no bearing on his legal
obligation to pay income taxes; unless he could establish that he was
not a citizen of the United States, IRS possessed authority to attempt to
determine his federal tax liability.
U.S.C.A. Const. Art. 1, Sec. 8, Cl. 1;
Amend. 16; 26 U.S.C.A. Sec. 1. [!!]
[United States v. Slater, 545 F.Supp. 179 (1982)]
[emphasis added]
It should be
clear by now that the IRS may well be making presumptions about your status
which are, in fact, not correct.
If an original presumption of nonresidence has been rebutted, for
example, because a nonresident alien filed one or more 1040 forms in the past,
the filed forms do not cast the situation into concrete. The IRS is entitled to formulate a
presumption from these filed forms, but this presumption is also rebuttable. If you filed under the mistaken belief that you were required to file, that mistaken
belief, in and of itself, does not suddenly turn you into a person who is required to file. Tax liability is not a matter of
belief; it is a matter that arises from
status and jurisdiction.
The best
approach is to "clean the slate".
In other words, clear the administrative record of any written documents
which may have been filed in error, or in the mistaken belief that the filer
was required. In Appendix
F of this book, there is an Affidavit of Rescission which can be used to
clean the slate. This affidavit is not
meant to be a document with universal application, because everyone's situation
is different. For example, the
affidavit makes certain statements about the laws and regulations which have
been studied by the individual who signs it.
Not everyone has read these same laws and regulations.
The affidavit does, however, cover a
wide range of factual matters which will serve to educate the reader about the
constructive fraud which Congress and other federal officials have perpetrated
on the American people. Various
qualified organizations are now available to assist individuals with the
procedure for executing this affidavit, filing it with a County Recorder, and
serving it on the appropriate government officials. The State Citizen Service Center in Canoga Park, California
Republic, is one such organization.
Their mailing location is found in the list of organizations in Appendix M of this book.
Now, let's
have a little fun with this law of presumption, as it is called. The law works both ways. This means that you can use it to your
advantage as well as anyone else can.
One of the most surprising and fascinating discoveries made by the
freedom movement in America concerns the bank signature card. If you have a checking or savings account at
a bank, you may remember being asked by the bank officer to sign your name on
several documents when you opened that account. One of these documents was the bank signature card. You may have been told that the bank needed
your signature in order to compare it with the signatures that would be found
on the checks you write, to detect forgeries.
That explanation sounded reasonable, so you signed your name on the
card.
What the bank
officer probably did not tell you was that you signed your name on a contract
whereby you agreed to abide by all rules and regulations of the Secretary of
the Treasury. You see, bank signature
cards typically contain such a clause in the fine print. These rules and regulations include, but are
not limited to the IRC (all 2,000 pages of it) and the Code of Federal
Regulations for the IRC (all 10,000 pages of it). These rules may also include every last word of the Federal
Reserve Act, another gigantic statute.
Now, did the bank have all 12,000 pages of the IRC and its regulations
on exhibit for you to examine upon request, before you signed the card? Your bank should be willing, at the very
least, to identify clearly what rules and regulations adhere to your signature.
You are
presumed to be a person who knows how to read, and who knows how to read a
contract before signing your name to it.
Once your signature is on the contract, the federal government is
entitled to presume that you knew what you were doing when you signed this
contract. Their presumption is that you entered into this contract knowingly, intentionally, and voluntarily. Why?
Because your signature is on the contract. That's why. Is this
presumption rebuttable? You bet it
is. Here's why:
Instead of
telling you that the bank needed your signature to catch forgeries, imagine
that the bank officer described the signature card as follows:
Your signature on this card will
create a contract relationship between you and the Secretary of the
Treasury. This Secretary is not the U.S. Secretary of the Treasury,
because the U.S. Treasury Department was bankrupted in the year 1933. The Treasury Department referred to on this
card is a private entity which has been set up to enforce private rules and
regulations. These rules and regulations
have been established to discharge the bankruptcy of the federal government. Your signature on this card will be
understood to mean that you are volunteering to subject yourself to a foreign
jurisdiction, a municipal corporation known as the District of Columbia and its
private offspring, the Federal Reserve system.
You accept the benefits of limited liability offered to you by this
corporation for using their commercial paper, Federal Reserve Notes, to
discharge your own debts without the need for gold or silver.
By accepting these benefits, you are
admitting to the waiver of all rights guaranteed to you by the Constitution for
the United States of America, because that Constitution cannot impair any
obligations in the contract you will enter by signing this card. Your waiver of these rights will be presumed
to be voluntary and as a result of knowingly intelligent acts done with
sufficient awareness of the relevant circumstances and likely consequences, as
explained by the Supreme Court in the case of Brady v. U.S. With your signature on this card, the
Internal Revenue Service, a collection agency for the Federal Reserve system,
will be authorized to attach levies against any and all of your account
balances in order to satisfy any unpaid liabilities which the IRS determines to
exist. You will waive all rights
against self-incrimination. You will
not be entitled to due process in federal administrative tribunals, where the
U.S. Constitution cannot be invoked to protect you. Your home, papers and effects will not be secured against search
and seizure. Now, please sign this
card.
How does the
law of presumption help you in this situation?
First of all, you presumed
that your signature was required, to compare it with the signatures on checks
you planned to write. This was a reasonable
presumption, because that's what the bank officer told you, but it is also a
rebuttable presumption, because of what the fine print says. That fine print can be used to rebut, or
disprove, your presumption when push comes to shove in a court of law. The federal government is entitled to
presume that you knew what you were doing when you signed this contract. Well, did you? Did the
bank officer explain all the terms
and conditions attached thereto, as explained above? Did you read all 12,000 pages of law and regulations before
deciding to sign this contract? Did you
even know they existed? Was your
signature on this contract a voluntary, intentional and knowingly intelligent
act done with sufficient awareness of all
its relevant consequences and likely circumstances? The Supreme Court has stated clearly that:
Waivers of Constitutional Rights not only
must be voluntary, but must be knowingly intelligent acts done with sufficient
awareness of the relevant circumstances and likely consequences.
[Brady v. United States, 397 U.S. 742, 748
(1970)]
Fortunately,
the federal government's presumption about you is also rebuttable. Why?
Because the feds are guilty of fraud, among other reasons, by not
disclosing the nature of the bankruptcy which they are using to envelope the
American people, like an octopus with a suction tentacle in everybody's wallet,
adults and children alike. The banks
became unwitting parties to this fraud because the Congress has obtained a
controlling interest in the banks through the Federal Deposit Insurance
Corporation and their traffic in Federal Reserve Notes and other commercial
paper issued by the Federal Reserve banks, with the help of their agent, the
private Treasury Department. For
further details, read "Return to Constitutional Money" by Dr. Edwin
Vieira, Jr., in the Supreme Law Library on the Internet.
Because this
fraud can attach to bank accounts without your knowledge or consent, it is
generally a good idea to notify your bank(s), in writing, that the IRS cannot
inspect any of your bank records unless you have specifically authorized such inspections by executing IRS Form
6014. The IRS Printed Products
Catalog describes this form as follows:
6014 42996R (Each)
Authorization
‑‑ Access to Third Party Records for Internal Revenue Service
Employees
Authorization from Taxpayer to third party for IRS
employees to examine records.
Re-numbered as a 4-digit form from Letter 995(DO) (7/77). Changes suggested per IRM Section 4082.1 to
help secure the correct information from the third party. EX:E:D Tax Related Public Use
[IRS Printed Product Catalog]
[Document 7130, Rev. 6-89, p. 49]
Make explicit
reference to this Form in a routine letter to your bank(s). Inform the appropriate bank officers that
they must have a completed Form 6014 on file, with your authorized signature, before they can legally
allow any IRS employees to examine
your records. Then state, discretely,
that you hereby reserve your fundamental right to withhold your authorized
signature from Form 6014, because it might otherwise constitute a waiver of
your 4th Amendment Rights, and no agency of government can compel you to waive any
of your fundamental Rights such as those explicitly guaranteed by the 4th
Amendment in the Constitution for the United States of America. (Banks are chartered by the States in which
they do business, and as such they are "agencies" of State
government.)
For good measure, you might also cite
pertinent sections in your State Constitution, particularly where it mandates
that the U.S. Constitution is the supreme Law of the Land, as it does in the
California Constitution of 1879.
Finally, you may wish to state that Form 6014 is not applicable to you anyway, because you are not a
"Taxpayer" as that term is defined by Section 7701(a)(14) of the
Internal Revenue Code. Therefore, the
bank is simply not authorized to release information about you to IRS
employees, period!
Social Security
is another example of a fraudulent contract with built-in presumptions. Your signature on the original application
for Social Security, the SS-5 Form, is presumed by the federal government to
mean that you knew what you were getting into, namely, that you knew it was
voluntary, that you knew it wasn't a true insurance program, that you knew it
was a tax, that you knew Congress reserved to itself the authority to change
the rules at any time, and that you
knew it would render you a subject
of the Congress because you knowingly, intentionally, and voluntarily chose to
accept the "benefits" of this government program.
Now ask yourself the 64,000 dollar
questions: How could you have known any of these things, if nobody told
you? How could you have known, if the
real truth was systematically kept from you?
How could you have known, if all applicable terms and conditions were
not disclosed to you before you
joined the program? And how could you
have made a capable, adult decision in this matter when you signed the form as
a minor, or your parents signed it for you?
The answers to these questions are all the same: there is just no way. For the record, Black's Sixth Edition
defines "fraud" as follows:
An intentional perversion of truth for the
purpose of inducing another in reliance upon it to part with some valuable
thing belonging to him or to surrender a legal right. A false representation of
a matter of fact, whether by words or by conduct, by false or misleading
allegations, or by concealment of that
which should have been disclosed, which deceives and is intended to deceive
another so that he shall act upon it to his legal injury.
[emphasis added]
The case law with respect to fraud is crystal clear:
Constructive fraud as well as actual fraud
may be the basis of cancellation of an instrument.
[El Paso Natural Gas Co. v. Kysar
Insurance Co.]
[605 Pacific 2d. 240 (1979)]
How do you
reverse these ominous presumptions which the federal government is entitled to
make about the "contract" you signed at your friendly local bank, or
the "contract" you signed to apply for Social Security? Spend some time to read carefully the
Affidavit found in Appendix F of this book. This Affidavit is normally served on the
Secretary of the Treasury. You might
also be motivated to obtain and study some of the other books listed in the
Bibliography (Appendix N) and/or to join some of the
organizations listed in Appendix M. The situation is a serious one, but
knowledge can help to set you free. It
is better to light a candle than to curse the darkness. And light always drives out darkness; darkness never drives out light.
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Reader's Notes: