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Is the 1040 Legal?

1040 Response

1040 Victory

May 21, 2005

Print

Hard Evidence That Form 1040
Has NO Legal Basis In Law

IRS Withdraws Criminal Allegation,
Tax Convict Walks Free

Although the People's war against the income tax fraud and IRS abuse has been lengthy and daunting and has left many freedom fighters across our nation battered and bankrupt, there are continuing signs that the tide of tyranny may finally be meeting effective resistance.

On April 12^th 2005, William Wallace Lear of Muskegon Michigan appeared in federal District Court in Grand Rapids to face IRS charges claiming Lear had violated the terms of his probation. William Lear had served one year in a federal detention facility in Minnesota following his conviction in 2002 for Willful Failure to File income tax returns (a misdemeanor). His probation began in March, 2004.

The basis for the probation violation hearing was an IRS claim that Lear failed to abide by the strict terms of his probation which included the requirement that he file all his delinquent tax returns and pay all back taxes and penalties owed.

Just as the hearing before Judge Gordon Quist began, the DOJ attorneys moved to dismiss the IRS's probation violation claim against Lear that would have sent him back to prison.

Although Lear had filed his missing returns signing them "under duress" (which IRS does not allow) and failed to pay the taxes owing on those returns, Judge Quist signed an order, completely releasing Lear from federal custody. As of April 12th, Lear has been a free man.

An important question remains: Why? Why would the IRS and DOJ walk away from a golden opportunity to make headlines and send a convicted tax protester back to prison?

Before answering the question, let's review some of the key developments leading up to the April 12, 2005 probation violation hearing.

After serving his 1-year sentence and after his return to his home in Michigan to fulfill his probation, Bill Lear and his wife Rose "dug back in" and continued to review the extensive body of legal research that had originally caused Bill Lear not to file.

During the summer of 2004, they constructed a "Challenge of Authority" document relying on legal material from various sources including comprehensive research posted by WTP in May 2004 and that has since been sent repeatedly by the Foundation (and others) to various officials of the U.S. government, including the President's current Advisory Panel on Federal Tax reform.

This research conclusively documents that IRS has no legal authority to impose taxes on the wages and salaries of ordinary Americans. Particularly damaging in the challenge was recently archived documentation from the government itself clearly showing that IRS Form 1040 is a "proposed" information collection form and that there is no legal authority cited for its use.

On October 4, 2004, during a meeting in the offices of their Congressional Representative Peter Hoekstra, the Lears formally served their Challenge of Authority on three IRS agents and engaged in a significant discussion about the limits of their authority. The IRS agents refused to respond to the Challenge of Authority simply stating that it is not the "practice" of IRS to respond to such requests.

What the agents did not know, however, was that two weeks earlier, on September 24th, the Lears had filed the same document as a formal public legal record in their local county courthouse at office of the Registrar of Deeds.

On February 28, 2005, after additional contacts with IRS officials in which Bill Lear repeatedly asked the IRS to provide specific legal guidance to him so he could know which tax form the law required him to fill out, and thereby comply with the terms of his probation, the Lears again confronted the IRS agents in a meeting in Rep. Hoekstra's office.

At that meeting, and after a heated discussion with IRS agents, confronting them with government documents and evidence clearly showing Form 1040 has no authority in law, IRS ended the discussion by telling Lear that the law required him to use "Form 1040" to file his returns.

Frustrated and agitated with the exchange, IRS Agent J. McWilliams stated that Lear "wasn't cooperating with the IRS", and that Lear was "going back to prison."

On March 2, just days before Lear's probation was due to expire, IRS filed a probation violation complaint with the federal probation office. Lear was promptly served Notice of the hearing that could send him back to prison.

On March 4, the Lears filed a Habeas Corpus regarding the original conviction.

On March 9, Lear filed a pleading answering the alleged violation of probation.

On March 10, Lear also decided to "hedge his bet" and filed the delinquent tax returns, but signed the tax forms "under duress."

On March 14, 2005 - Lear appeared before Magistrate Joseph G. Scoville who found cause for the violation and sent the case to Judge Quist for a formal hearing.

It should be noted that IRS routinely rejects tax returns signed "under duress" due to the obvious due process implications related to the use of force, threat of force, or other intimidation to coerce an individual to swear to a statement made under "penalties of perjury." It should be further noted that although required by the terms of his probation, Lear did not make any payment toward the alleged taxes or penalties due for the returns he was convicted for willfully failing to file.

Finally, on March 21^st, the Lears filed a Motion to Quash the Release Revocation Hearing. Contained within this motion was the formal "Challenge of Authority" document that had been previously recorded in their local county courthouse as a legal public record.

On April 12, Lear and his wife Rose appeared in court for Bill's probation violation hearing.

Instead of publicly confronting the merits of the alleged probation violation and asking the court to send a "recalcitrant tax convict" back to prison, attorneys for the DOJ and IRS withdrew their complaint alleging the probation violation.

WHY?

Because under Rule 902 of the Federal Rules of Evidence, a court cannot deny the admissibility of relevant evidence consisting of certified copies of public legal records as they are presumed to be self-authenticating and valid as evidence.

Here is the text of Rule 902, sub-paragraph (4):

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(4). Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification.

In other words, in facing a public criminal hearing where the contents of Lear's "Challenge of Authority" was, without argument, directly relevant to Lear's alleged violation, and knowing the District Court could not deny its admittance as evidence, the DOJ was faced with two unpleasant alternatives: either produce IRS witnesses to explain away government documentation clearly showing IRS Form 1040 is not a legally authorized form, or walk away from the probation violation hearing.

IRS walked.

Rather than take a potential headline-making opportunity to publicly chastise and send back to prison a convicted tax protester who had dared - even after conviction -- to continue questioning the legal authority of the government, the IRS and DOJ instead withdrew their criminal complaint, thereby avoiding having to confront - on the record - the damning evidence contained in Lear's formal Motion to Quash and its "Challenge of Authority" exhibit. (Note the legal argument regarding the lack of authority for Individual Form 1040 begins on page 4 of the Motion to Quash.)

By withdrawing the IRS complaint against Lear, DOJ avoided having to publicly attempt to rebut Lear's legal research and having to admit that the government could not cite any legal authority requiring the filing of a 1040 Individual tax return.

On April 25^th, despite the facts that Lear had filed defective returns signed "under duress" and also failed to pay the taxes and penalties owed for the returns he was convicted for failing to file, Judge Quist signed a formal order completely freeing Bill Lear from the terms of his probation.

The Sixth Circuit Court of Appeals in Cincinnati, Ohio is currently considering whether to certify Lear's most recent Habeas Corpus motion to vacate his conviction. That motion is also based upon the new legal research contained in his "Challenge of Authority."

The Hard Evidence That
Form 1040 Has No Legal Authority

In their "Challenge of Authority" document, the Lears provide hard documentary evidence that IRS Form 1040 has NO legal authority.

This evidence was presented by contrasting archived government documents that have been filed pursuant to the federal Administrative Procedures Act (APA) and Paperwork Reduction Act (PRA).

Under the PRA, each and every government form that is used to collect information from the general public under law must be linked to its authorizing statutes and implementing regulations and have a valid Office of Management and Budget "OMB" Form number. This requirement of law provides an orderly means to identify which statutes, regulations and forms are related.

As one item of evidence, the Lears produced a stamped copy of a 1987 Treasury Department document entitled, "Request for OMB Review" which is required by the Paperwork Reduction Act. The request was for IRS Form "1040-NR", the tax form used by Non-Resident Aliens to report their "income".

Several things about this document are noteworthy:

1. The form used for the request is OMB Form "83"
2. On line 5 of Form 83, the administrative requester is required to cite the statutes actually authorizing the collection of the information. The authorizing statutes are, in fact, cited.
3. On line 27 of Form 83, the administrative requester is required to cite the regulations actually authorizing the collection of the information. The authorizing regulations are, in fact, cited.

Click Here to See the "OMB Form 83" Treasury request for IRS Form 1040-NR for use by Non-Resident Aliens

Here's where it gets very interesting:

The "Challenge of Authority" document also contains a similar Treasury PRA request from 1996, but this one is for the "regular" IRS Individual Form 1040 that millions of Americans file each year.

This Treasury administrative request is not made on OMB "Form 83" ---- but rather using an alternate OMB form, "83-1" titled, "Paperwork Reduction Act Submission".

Several very important differences between the OMB request forms need to be noted:

1. OMB Form 83-1 does NOT require any specific citation of statutory authority.
2. OMB Form 83-1 does NOT require any specific citation of regulatory authority.
3. In the "Certification" box found on page 2 of Form 83-1, there are specific references to
  both PRA Regulations "5 CFR 1320.9" and "5 CFR 1320.8(b)(3)."
4. The attachments to this OMB Form 83-1 request consist primarily of a list of Title 26 (Income Tax) regulations and statutes that are merely (quoting) "associated" with IRS Form 1040.

Click here to see the Treasury request using OMB Form 83-1 for the IRS Individual "Form 1040"

Here's the punch line:

IRS Form 1040-NR (for Non-Resident Aliens) is certified as complying with the requirements of the PRA found at regulation 5 CFR 1320.8. In its request to the OMB for IRS Form "1040-NR", the Department of Treasury (IRS) clearly cites both the statutory and regulatory authorities authorizing the use of the form to collect information and certifies its request as such.

Click Here to read the Paperwork Reduction Act (PRA) form disclosure requirements found at 5 CFR 1320.8.

Please specifically note that for the Treasury's request using alternative OMB Form 83-1 for IRS Individual Form 1040, the Treasury has formally certified the request under regulation 5 CFR 1320.9, which is explicitly reserved for "PROPOSED" government forms.

Printed just below is the title header for federal regulation "5 CFR 1320.9":

[Code of Federal Regulations]
[Title 5, Volume 3]

[Revised as of January 1, 2005] From the U.S. Government Printing Office via GPO Access [CITE: 5 CFR 1320.9] [Page 155] TITLE 5--ADMINISTRATIVE PERSONNEL CHAPTER III--OFFICE OF MANAGEMENT AND BUDGET PART 1320_CONTROLLING PAPERWORK BURDENS ON THE PUBLIC--

Table of Contents Sec. 1320.9 Agency certifications for proposed collections of

information. As part of the agency submission to OMB of a proposed collection of information, the agency (through the head of the agency, the Senior Official, or their designee) shall certify and provide a record supporting such certification) that the proposed collection of information [...]

In short, if IRS Individual Form 1040 was actually authorized under U.S. law, the Department of Treasury would have submitted it for OMB certification using OMB "Form 83" which requires explicit citation of the Form's authorizing statutes and regulations.

Instead, the IRS used alternative OMB Form "83-1" -- which is designated ONLY for "proposed" government forms - and which does NOT require any formal citation of legal authority allowing its use.

Furthermore, even though an attachment to the Treasury's request for IRS Form 1040 (on OMB Form 83-1) contains a lengthy list of statutes and regulations, and "Box 12" on the form is marked indicating the form is "mandatory", a careful reading of the submission to OMB will make it clear that the Department of Treasury is ONLY certifying that:

Form 1040 is a "proposed form" and that, IF authorized, it would meet the collection criteria established by regulation 5 CFR 1320.9, and
That Form 1040 is only "associated" with the statutes and regulations cited in the 1040 request, and
If Form 1040 were actually authorized by law, it would be "mandatory".

As a final observation, it should be noted that both the 1987 Form 1040-NR request as well as the 1996 Form 1040 request were signed by the same IRS officials, one Garrick R. Shear, the IRS Reports Clearance Officer and one Lois K. Holland as/for the Departmental Reports Management Officer. Lear's pleadings contain additional OMB certifications, also signed by Shear & Holland.

In short, the Department of Treasury's clear and willful intent to use OMB Form 83-1 (rather than OMB Form 83) to legally certify IRS Individual Form 1040 as a valid government document, is compelling proof establishing that IRS Form 1040 is merely a PROPOSED tax form, and that there is NO LEGAL AUTHORITY that authorizes its use.

A Nation of Law?

The documentation presented above is additional evidence weighing against our government, in favor of the People's Petition for Redress of Grievances regarding a system of taxation that is without reasonable question, devoid of constitutional and statutory authority.

In this article we have shown once again, that the government simply refuses to answer legitimate questions regarding its authority to force People to pay a direct, un-apportioned tax on their labor --- questions that are based on compelling documentary evidence establishing that the government is abusing the People by violating its power to tax.

As the government continues its refusal to properly respond to the People's Petitions for Redress, the Petition process has unfortunately reached the point where the People have been forced to begin retaining their money as the means to peacefully enforce their Right to secure proper Redress -- i.e., to obtain answers to the People's legitimate questions regarding an array of substantive violations of the founding principles and abuses of the limited powers delegated to the government by those that created it to serve them.

Thus far, the government has improperly responded to the People by using the People's First Amendment Right to Petition for Redress of Grievances as grounds for still further acts of abuse. The government continues to apply heavy-handed enforcement actions against the sovereign Petitioners who are exercising their Natural Rights and dominion over their servant government.

The actions of the U.S. government are wholly unacceptable for a free People. Under the circumstances, the People are morally, legally and Constitutionally justified in retaining their money until their grievances are redressed and their questions are answered. There is no other non-violent way for the People to hold their government accountable to the Constitution with its guarantee of Individual Rights.

The We The People Foundation is committed to peacefully securing freedom and reestablishing our founding principles -- no matter the cost. It is a sign of hope and the power of Righteousness that in the name of Liberty, a single, dedicated and determined Michigan family has taken just a few tidbits of the body of evidence this Foundation has made publicly available and has made a compelling case in a federal court that the DOJ and IRS chose to walk away from.

Ours is a Nation of Law. The People must not, and cannot, tolerate a government that ignores its own laws -- or the fundamental Rights of those it is intended to serve.

No Answers, NO Taxes.

We ask you again, to support the work of the Foundation and please consider a modest one-time or monthly donation to help us continue our ongoing battles in the courts of law and public opinion against those that would seek to slow our progress or silence our voice as we demand Constitutional Order and reclaim Freedom.

Article related links:

Please note: the documents below are moderately sized, in Adobe .pdf format.
It is suggested you RIGHT-Click on the links below in order to download the
document to your computer before opening it.

The Treasury's OMB request for Form 1040-NR (for Non-Resident Aliens)

The Treasury's OMB request for Form 1040 - (for Individual Returns), and the Attachment

The Motion to Quash the probation violation hearing

The Challenge of Authority exhibit
(Please note: does not contain all the original attachments)

Certificate of Service for the Challenge

IRS's Probation Violation Complaint

Lear's Probation Violation Response

USDC Order Freeing Bill Lear

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