UNITED STATES DISTRICT COURT
BACKWARD DISTRICT OF ANYWHERE
UNITED STATES OF AMERICA
V. NO. RX-010YC
IVE B. PERSECUTED
MOTION TO DISMISS CHARGES
(Lack of Essential Element)
COMES NOW the Accused, by special appearance in challenge of
jurisdiction, pursuant Rule 12(b)(2), to state:
A. The charging instrument, an Information, presents five counts of failure
type of offenses punishable under §7203.
B. In order to comply with constitutional safeguards concerning due
process of law and the right to be informed of the nature and cause of the
accusation rules of procedure have been promulgated to regulate and
simplify as well as to “standardize” the process which is due.
C. FRCrP Rule 7 specifies the content of an Indictment, or an Information,
and portions relevant here are:
“The indictment or the information shall be a plain, concise and
definite written
statement of the essential facts constituting the offense charged.”
“The indictment or information shall state for each count the
official or customary citation of the statute, rule, regulation or other provision
of law which the defendant Is alleged therein to have violated.”
D. The Information fails to state in each count the official citation to a
statute or code section which allegedly has been violated, as expressly
required by the Rule. Additionally, the Information fails to specify in a
written form in plain, concise and definite statement all of the essential facts
in substantial allegations so as to inform the defendant and the court exactly
of the nature of the offense intended to be charged.
1) At two places within each count the wording of, “to make an income tax
return” appears. And from that one can glean that the nature of the
complaint has something to do with income tax returns, that is, not a return
in regard to some other tax, such as a distiller’s tax. That the Information
specified INCOME TAX returns helped to narrow the field to that particular
species of return.
2) Because of the allegations about making an INCOME TAX return in each
count one can determine that the missing citation of the provision
supposedly violated must be located within Sub-Title A of the tax code. In
order to be sufficient within the context of this Information one can discern
that the nature of the text, if any there be, as relates to the or those missing
statute section(s) would impose a requirement or duty to make (and file?) a
return; an income tax return. The non-cited and missing statute section(s),
if any, would be the one or more section(s) that supposedly were
violated, not section 7203!
3) In addition to the omission of citation of statute section(s) supposedly
violated, there is no written statement of the essential facts concerning a
duty or requirement to make an income tax return. In lieu of any substantial
allegation(s) the Pleader substitutes the phrase, “he was required by law”,
which is merely a conclusion of law, if such law actually exists. And if there
is no portion of the income tax law which expressly and clearly imposes a
duty and requirement to make an INCOME TAX return then the above
quoted pleader’s conclusion is not a conclusion concerning something that a
statute supposedly says. Instead, the quoted phrase represents a blatant
fraud in pleading.
This Accused challenges, and this court should insist that the government
attorney(s) shall cite and produce copies of the section(s) of the income tax
statute which imposes a duty to make an income tax return.
4) A duty and requirement to make a return is an essential element to
constitute an offense under section 7203, and must be plainly, concisely and
definitely alleged in an Indictment or an Information as required by Rule 7(c)
FRCrP. And then, later, must be proved at trial. It is suggested that the only
means of evidencing such a proof is to produce copies of the statute
section(s) which impose the duty to make the particular type of tax return at
issue.
5) In the instance of this Information, the duty and requirement to make a
return is not alleged conformably with the Rule 7(c). Indeed, not at all
because a Pleader’s conclusion is not a substantial allegation of fact and
emphatically not of an essential fact. Such a conclusion should be treated as
not being an allegation at all.
6) The failure to allege an essential fact, as required by the Rule, yields a
defective and insufficient charge, one which, in this instance, is fatally
defective and cannot be resurrected.
THEREFORE: The effort at the charges in the Information, all five
counts, must be dismissed. Be it so ordered.
Dated this ______of April, 2009.
_______________________
;
IVE B. PERSECUTED, Accused
{Add Certificate of Service – directed to U.S. Attorney by way of U.S.
Mail. Get address from Clerk of court }
NOTE - - - [NOT to be appended to the above paper! This is info for you.
“It is now a well established fact that Congress never enacted any
Statute(s) at Large creating a specific liability for taxes imposed by Subtitle
A of the Internal Revenue Code. By comparison, Congress has enacted
Statute(s) at Large creating specific liabilities for taxes imposed by Subtitles
B and C of the
Internal Revenue Code. On this key point, see 26 CFR 1.1-1(b) and
Commissioner v. Acker, 361 U.S. 87,
4 L. Ed.2d 127, 80 S. Ct. 144 (1959), quoting in pertinent part:
But the section contains nothing to that effect, and, therefore, to
uphold this addition to the tax would be to hold that it may be imposed by
regulation, which, of course,the law does not permit. United States v.
Calamaro, 354 U.S. 351, 359; Koshland v. Helvering, 298 U.S. 441, 446-
447; Manhattan Co. v. Commissioner, 297 U.S. 129, 134. [Bold emphasis
added]
UNITED STATES DISTRICT COURT
BACKWARD DISTRICT COURT OF ANYWHERE
UNITED STATES OF AMERICA )
v. ) Case No. RX-
010YC
IVE B. PERSECUTED )
MOTION TO DISMISS INFORMATION
Comes now the Accused, by special appearance, in challenge of
jurisdiction, and without waiver of improper plaintiff, to state:
1.) It has long been recognized that the federal United States has not
been granted any common law authorities or jurisdictions. This was
emphatically confirmed in 1938 when the U.S. Supreme Court
overturned the Tyson doctrine in Erie Railroad v. Tompkins, 304 US 64.
2.) That the federal United States lacked any common law jurisdiction
was early-on recognized in U.S. v. Worrall, (1798) 2 US 384 Fed. Case.
2 Dall. 384, and also ruled in the U. S. Supreme court in U. S. v. Hudson
and Goodwin (1812) 7 Cranch 32.
3.) In U.S v. Cruikshank (1875) 93 US 542, the U.S. Supreme Court
explained, “The government of the United States is one of delegated
powers alone. Its authority is defined and limited by the
Constitution. All powers not granted to it by the instrument are
reserved to the States or the people. No rights can be acquired under
the constitution or laws of the United States, except such as the
government of the United States has the authority to grant or
secure. All that cannot be so granted or secured are left under the
protection of the States.” (Emphasis added) 92 US, at 551. Obviously
the U.S. Congress has not been granted or delegated any power to
adopt a common law and therefore cannot lawfully authorize a
criminal mode of procedure by way of a Information in the U.S. District
Courts.
4.) This Accused is aware of the ruling in DUKE v. UNITED STATES, 301
US 492 which was decided in May of 1937, almost one year prior the
Erie Railroad decision above cited and wherein the court ruled in these
words, “There is no federal general common law. Congress has no
power to declare substantive rules of common law applicable in a state
whether they be local in their nature or ‘general,’ be they commercial
law or a part of the law of torts. And no clause in the Constitution
purports to confer such a power upon the federal courts.” 304 US 78.
5.) From the above, this Accused contends that the Erie decision
necessarily overturned the Duke ruling and in effect postulates that
the statute of December, 1930 which led to the questions in Duke is
also unconstitutional.
6.) A re-view of history shows that the origin of a criminal procedure
by way of an Information was a device concockted in the infamous Star
Chamber by the excessively ambitious Empson and Dudley after the
statute of 1495, 11 Henry VII, Chap. 3 (Offenses against Statutes) had
further extended the jurisdiction of the Star Chamber so as to include a
criminal jurisdiction.
When the Star Chamber as a court was abolished by statute in
1640, 16 Car. I, Chap. 10 (Star Chamber), the procedural device which
originated there was also abolished. But its use was revived in the
King’s Bench despite its unlawfulness. And it continues - - - -.
7.) Criminal procedure by way of an Information is of British origin and
has not and cannot be adopted by the Congress, despite that the
language of some statutes seem to suggest otherwise.
8.) The procedural method being pursued here in this alleged case is
that of an Information, a method which is absolutely unlawful.
ACCORDINGLY: This Information must be dismissed. Be it so ordered.
_________________
_____
Ive B. Persecuted, Accused
UNITED STATES DISTRICT COURT
BACKWARD DISTRICT OF ANYWHERE
UNITED STATES OF AMERICA
v. No. RX-
010YC
IVE B. PERSECUTED
4th MOTION TO DISMISS
(No Charge)
COMES NOW the Accused, by special appearance in challenge of
jurisdiction, pursuant Rule 12(b) (2), to state,
This Accused contends:
1) The government attorney has used a typical “pattern” charge in
each count in the Information.
2) In each count all of the wordage up to the words, “he did willfully
fail ---“ is unnecessary to any charge intended, is only preliminary data
that goes to describe a WHO that may be charged with
an offense made penal by section 7203. Such unnecessary data
may be struck and disregarded because it is not pertinent to the
charge.
3) The actual charge intended in each count begins with the words,
“he did willfully fail ---“, and thereafter the government attorney musty
allege all the essential elements to constitute the offense.
4) In the instance of an offense under §7203, which is a generic
penalty section, there are only five distinct acts of failure that have
been made penal, and they are:
(a) Failure to pay an estimated tax;
(b) Failure to pay a tax;
(c) Failure to make a return;
(d) Failure to keep records;
(e) Failure to supply information.
And a so-called “failure to file” (a return) is not within the
express provisions of the section.
5.) In this Information the only charge element which has been alleged
is failure to make a return.
Whether the allegedly not made return is an income tax return
is not a core element of a charge here.
6.) But, for all that the paragraph of each count does excessively say,
it nevertheless remains that an essential element has not been
alleged. Namely, the “charge” portion of §7203 requires that for each
count of the five failure acts, as specified above, there must be an
accompanying allegation asserting that they were not done at a time (or
times) as required by law (or
regulation).
7.) The failures of allegation in this Information is that the Accused has
not been charged in the charging portion of each count with having failed
to make a return at the time (or times) as required in an unspecified
statute, or regulation.
THEREFORE: No charge has been presented before this court and the case
or cases must be dismissed. Be it so ordered.
Dated this ___ April, 2009
___________________________
Ive B. Persecuted, Accused
Add certificate of Service
UNITED STATES DISTRICT COURT
BACKWARD DISTRICT OF ANYWHERE
UNITED STATES OF AMERICA
V. No. RX-010YC
IVE B. PERSECUTED
FIRST MOTION TO DISMISS
Improper Plaintiff
COMES NOW the Accused, by special
appearance in challenge of jurisdiction, to show the court a lack of
authority, as follows:
1) The Information names “UNITED STATES OF AMERICA” as
being the Plaintiff without explaining or more particularly
describing who or what that “UNITED STATES OF AMERICA” is.
2) The nature of the Information as presented seems to
deliberately utilize an implication to the end that the unaware will
assume that the “UNITED STATES OF AMERICA” is or refers to the
federal government; and the gullible won’t question the
subterfuge.
3) The facts are that as generally used the United States of
America is an abstraction which refers to the fifty states which
collectively comprise the union of States known by that name. The
United States of America has not been constituted by law as a
government in a sense of federal government; there is no
government entity by that name. That which is referred to sub-
nominee “United States of America” is not an entity competent to
sue, or be sued, and it cannot be a real party in interest.
4) Because there is no government entity by the name of
United States of America or UNITED STATES OF AMERICA, there is
no Plaintiff before the court which this court can recognize as an
entity competent to proceed.
THEREFORE: Because of the lack of a legally
cognizable plaintiff this Information must be dismissed. Be it so
ordered.
Dated _____ of April, 2009.
____________________
Ive B. Persecuted, Accused
CERTIFICATE OF SERVICE
The undersigned certifies that the above document was
served on all parties in the above cause by depositing one copy
each in the U.S. mail postage prepaid, in an envelope addressed
to _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ on
this _____ day of April 2009.
______________________
Ive B. Persecuted
NOTE - - - - GET, Read, and STUDY NORTON v. SHELBY COUNTY
(1886) 118 US 425
UNITED STATES DISTRICT COURT
BACKWARD DISTRICT OF ANYWHERE
UNITED STATES OF AMERICA
V. NO. RX-010YC
IVE B. PERSECUTED
MOTION TO STRIKE
COMES NOW the Accused, by special appearance in challenge of
jurisdiction, pursuant Rule 12(b)(2) and Rule 7(d), to state:
A. The portions of Rule 7 FRCrP which are relevant to this motion are:
(c) Nature and Contents.
The indictment or the information shall be a
plain, concise and
definite written statement of the essential facts constituting the offense
charged.
The indictment or information shall state for
each count the official or Customary citation of the statute,
rule, regulation or other provision of law which the defendant is alleged
therein to have violated.
(d) Surplusage. The court on motion of the defendant
may strike surplusage from the indictment or information.
B. Under the Rule the Pleader is required to state for each count the
official or customary citation of the statute, rule, regulation or other provision
of law which the defendant allegedly violated. Immediately below each
count in the Information it is expressly alleged in these words, “In violation of
Title 26, United States Code, Section 7203”. This statement is the only
citation to any statute or rule etc. in the Information, and this motion is
based on that fact.
Treating the content of section 7203 as being the only substantive
portion of a statute which was violated as expressly alleged, all wording or
language as used in the Information which is not contained within section
7203, or is not fairly inferable from the context thereof is herein contended
to be surplusage and should be struck and deleted from the Information, as
follows in specific detail:
1. The words, “During the calendar year”, and the year date as in
each count should be struck from each count because there is no equal
wordage or dates within section 7203.
2. The words, “had and received gross income in excess of”, and the
amount, (of 56,400.) as inserted into the Information should be struck
from each count because there is no equivalency of wordage or
relevancy of amounts in section 7203.
3. The words, “that by reason of such gross income he was required
by law”, as inserted into the Information should be struck from each
count because there is no equivalency of wordage in section 7203, and
further, because this entire phrase constitutes a pleader’s conclusion
about something which supposedly exists somewhere in some
unspecified law or statute, and at best this phrase expresses only what
the pleader might believe some law supposedly requires. It is not,
emphatically not a substantial allegation of fact as clearly required by
the pleading rule, Rule 7(c).
4. The words, ”following the close of the calendar year” and the date
as inserted into the Information should be struck from each count
because there is no equivalency of wordage, or relevancy of dates
within section 7203.
5. The words, ”and on or before April 15, 2003” and the date as
inserted into the Information should be struck from each count
because there is no equivalency of wordage, or relevancy of dates
contained within section 7203.
6. The words, “to make an income tax return”, include wordage which
is not contained within section 7203, and because those extra words,
specifically the words, “income tax”, are not contained within section
7203, the words “income tax” should be struck from each count in the
Information, An additional aspect applicable to this point of contention
is that the Pleader apparently has inferred and concluded that the
Accused is one upon which some undisclosed and/or unspecified
statute has imposed a duty of making a thing called a “return” in
regard to some tax concerning some undefined thing called
“income”. To the extent that the Pleader had inferred and/or merely
concluded that the Accused is one who is burdened with a statutorialy
imposed duty in regard to making “an income tax” return without
specifying the statute which imposes such a so-called duty, the Pleader
has failed to present a substantial allegation of fact as required by the
rule of pleading, Rule 7(c) and for that reason the words of, “an income
tax” where they appear at two places in each count in the Information
should be struck from each count in the Information.
7. The words, “to the District Director of the Internal Revenue
Service for the Internal Revenue District of Louisville, at Louisville,
Kentucky, in the Western District of Kentucky, or to the Director,
Internal Revenue Service Center, at Covington, Kentucky, or other
proper officer of the United States” as inserted into the Information
should be struck from each count because there is no equivalency of
wordage or relevancy for them in section 7203.
8. The words, “stating specifically the items of his gross income and
any deductions and credits to which he was entitled,” as inserted into
the Information should be struck from each count because there is no
equivalency of wordage or relevancy for them in section 7203.
9. The words, “that well-knowing and believing all of the
foregoing,” as inserted into the Information should be struck from
each count because there is no equivalency of wordage or relevancy
for them in section 7203.
10. The words, “to said District Director of the Internal Revenue
Service, to said Director of the Internal Revenue Service Center, or to
any other proper officer of the United States.” As inserted into the
Information should be struck from each count because there is no
equivalency of wordage or relevancy for them in section 7203.
The final line under each count in the Information asserts that the
foregoing is “In violation of Title 26, United States Code, Section
7203”, which is simply not true!
THEREFORE: Because all of the wordage as detailed above is
surplusage and impertinent all of the above specified wordage should
be struck form each count in the Information. Be it so ordered.
Dated _______ April, 2009.
___
__________________________
IVE B. PERSECUTED, Accused
Add Certificate of Service
&nb
sp;
UNITED STATES DISTRICT COURT
BACKWARD DISTRICT OF ANYWHERE
UNITED STATES OF AMERICA
V. NO. RX-010YC
IVE B. PERSECUTED
MOTION TO STRIKE
COMES NOW the Accused, by special appearance in challenge of
jurisdiction, pursuant Rule 12(b)(2) and Rule 7(d), to state:
A. The portions of Rule 7 FRCrP which are relevant to this motion are:
(c) Nature and Contents.
The indictment or the information shall be a
plain, concise and
definite written statement of the essential facts constituting the offense
charged.
The indictment or information shall state for
each count the official or Customary citation of the statute,
rule, regulation or other provision of law which the defendant is alleged
therein to have violated.
(d) Surplusage. The court on motion of the defendant
may strike surplusage from the indictment or information.
B. Under the Rule the Pleader is required to state for each count the
official or customary citation of the statute, rule, regulation or other provision
of law which the defendant allegedly violated. Immediately below each
count in the Information it is expressly alleged in these words, “In violation of
Title 26, United States Code, Section 7203”. This statement is the only
citation to any statute or rule etc. in the Information, and this motion is
based on that fact.
Treating the content of section 7203 as being the only substantive
portion of a statute which was violated as expressly alleged, all wording or
language as used in the Information which is not contained within section
7203, or is not fairly inferable from the context thereof is herein contended
to be surplusage and should be struck and deleted from the Information, as
follows in specific detail:
1. The words, “During the calendar year”, and the year date as in
each count should be struck from each count because there is no equal
wordage or dates within section 7203.
2. The words, “had and received gross income in excess of”, and the
amount, (of 56,400.) as inserted into the Information should be struck
from each count because there is no equivalency of wordage or
relevancy of amounts in section 7203.
3. The words, “that by reason of such gross income he was required
by law”, as inserted into the Information should be struck from each
count because there is no equivalency of wordage in section 7203, and
further, because this entire phrase constitutes a pleader’s conclusion
about something which supposedly exists somewhere in some
unspecified law or statute, and at best this phrase expresses only what
the pleader might believe some law supposedly requires. It is not,
emphatically not a substantial allegation of fact as clearly required by
the pleading rule, Rule 7(c).
4. The words, ”following the close of the calendar year” and the date
as inserted into the Information should be struck from each count
because there is no equivalency of wordage, or relevancy of dates
within section 7203.
5. The words, ”and on or before April 15, 2003” and the date as
inserted into the Information should be struck from each count
because there is no equivalency of wordage, or relevancy of dates
contained within section 7203.
6. The words, “to make an income tax return”, include wordage which
is not contained within section 7203, and because those extra words,
specifically the words, “income tax”, are not contained within section
7203, the words “income tax” should be struck from each count in the
Information, An additional aspect applicable to this point of contention
is that the Pleader apparently has inferred and concluded that the
Accused is one upon which some undisclosed and/or unspecified
statute has imposed a duty of making a thing called a “return” in
regard to some tax concerning some undefined thing called
“income”. To the extent that the Pleader had inferred and/or merely
concluded that the Accused is one who is burdened with a statutorialy
imposed duty in regard to making “an income tax” return without
specifying the statute which imposes such a so-called duty, the Pleader
has failed to present a substantial allegation of fact as required by the
rule of pleading, Rule 7(c) and for that reason the words of, “an income
tax” where they appear at two places in each count in the Information
should be struck from each count in the Information.
7. The words, “to the District Director of the Internal Revenue
Service for the Internal Revenue District of Louisville, at Louisville,
Kentucky, in the Western District of Kentucky, or to the Director,
Internal Revenue Service Center, at Covington, Kentucky, or other
proper officer of the United States” as inserted into the Information
should be struck from each count because there is no equivalency of
wordage or relevancy for them in section 7203.
8. The words, “stating specifically the items of his gross income and
any deductions and credits to which he was entitled,” as inserted into
the Information should be struck from each count because there is no
equivalency of wordage or relevancy for them in section 7203.
9. The words, “that well-knowing and believing all of the
foregoing,” as inserted into the Information should be struck from
each count because there is no equivalency of wordage or relevancy
for them in section 7203.
10. The words, “to said District Director of the Internal Revenue
Service, to said Director of the Internal Revenue Service Center, or to
any other proper officer of the United States.” As inserted into the
Information should be struck from each count because there is no
equivalency of wordage or relevancy for them in section 7203.
The final line under each count in the Information asserts that the
foregoing is “In violation of Title 26, United States Code, Section
7203”, which is simply not true!
THEREFORE: Because all of the wordage as detailed above is
surplusage and impertinent all of the above specified wordage should
be struck form each count in the Information. Be it so ordered.
Dated _______ April, 2009.
___
__________________________
IVE B. PERSECUTED, Accused
Add Certificate of Service
UNITED STATES DISTRICT COURT
BACKWARD DISTRICT COURT OF ANYWHERE
UNITED STATES OF AMERICA )
v. ) Case No. RX-
010YC
IVE B. PERSECUTED )
MOTION TO DISMISS INFORMATION
Comes now the Accused, by special appearance, in challenge of
jurisdiction, and without
waiver of improper plaintiff, to state:
1.) It has long been recognized that the federal United States has not
been granted any common law authorities or jurisdictions. This was
emphatically confirmed in 1938 when the U.S. Supreme Court
overturned the Tyson doctrine in Erie Railroad v. Tompkins, 304 US 64.
2.) That the federal United States lacked any common law jurisdiction
was early-on recognized in U.S. v. Worrall, (1798) 2 US 384 Fed. Case.
2 Dall. 384, and also ruled in the U. S. Supreme court in U. S. v. Hudson
and Goodwin (1812) 7 Cranch 32.
3.) In U.S v. Cruikshank (1875) 93 US 542, the U.S. Supreme Court
explained,
“The government of the United States is one of delegated
powers alone. Its authority is defined and limited by the
Constitution. All powers not granted to it by the instrument are
reserved to the States or the people. No rights can be acquired under
the constitution or laws of the United States, except such as the
government of the United States has the authority to grant or
secure. All that cannot be so granted or secured are left under the
protection of the States.” (Emphasis added) 92 US, at 551.
Obviously the U.S. Congress has not been granted or delegated any
power to adopt a common law and therefore cannot lawfully authorize
a criminal mode of procedure by way of a Information in the U.S.
District Courts.
4.) This Accused is aware of the ruling in DUKE v. UNITED STATES, 301
US 492 which was decided in May of 1937, almost one year prior the
Erie Railroad decision above cited and wherein the court ruled in these
words, “There is no federal general common law. Congress has no
power to declare substantive rules of common law applicable in a state
whether they be local in their nature or ‘general,’ be they commercial
law or a part of the law of torts. And no clause in the Constitution
purports to confer such a power upon the federal courts.” 304 US 78.
5.) From the above, this Accused contends that the Erie decision
necessarily overturned the Duke ruling and in effect postulates that
the statute of December, 1930 which led to the questions in Duke is
also unconstitutional.
6.) A re-view of history shows that the origin of a criminal procedure
by way of an Information was a device concockted in the infamous Star
Chamber by the excessively ambitious Empson and Dudley after the
statute of 1495, 11 Henry VII, Chap. 3 (Offenses against Statutes) had
further extended the jurisdiction of the Star Chamber so as to include a
criminal jurisdiction.
When the Star Chamber as a court was abolished by statute in
1640, 16 Car. I, Chap. 10 (Star Chamber), the procedural device which
originated there was also abolished. But its use was revived in the
King’s Bench despite its unlawfulness. And it continues - - - -.
7.) Criminal procedure by way of an Information is of British origin and
has not and cannot be adopted by the Congress, despite that the
language of some statutes seem to suggest otherwise.
8.) The procedural method being pursued here in this alleged case is
that of an Information, a method which is absolutely unlawful.
ACCORDINGLY: This Information must be dismissed. Be it so ordered.
_________________
_____
Ive B. Persecuted, Accused
UNITED STATES DISTRICT COURT
BACKWARD DISTRICT OF ANYWHERE
UNITED STATES OF AMERICA
V. NO. RX-010YC
IVE B. PERSECUTED
MOTION for BILL of PARTICULARS
COMES NOW the Accused, by special appearance only and
without waiver of challenges to jurisdiction, pursuant Rule 7(f)
FRCrP, to state:
1) This Accused comprehends that a Bill of Particulars
cannot “cure” a
defective or insufficient indictment or information,
nevertheless because
the Information here does not properly comply with Rule
7(c) FRCrP in
that the Information does not cite or otherwise specify the
particular
statute, or section thereof, allegedly violated, nor cite or
identify a
particular administrative regulation (if any) supposedly
violated, this
Accused is extremely handicapped and cannot understand
how or even if
an unspecified statute or regulation might have been
violated.
2) In particular, this Accused needs to know the following
specific things:
(a) What statute, or section thereof, imposes a duty or
requirement “to
make an income tax return”?
(b) IF a duty or requirement “to make an income tax
return” was or has
been imposed by an administrative rule or regulation, this
Accused
needs a copy of the applicable rule or regulation.
(c) What statute, or section thereof, imposes a duty or
requirement “to
make an income tax return TO said District Director of the
Internal
Revenue Service”? (emphasis added to clarify this point)
(d) IF a duty or requirement “to make an income tax
return TO said District Director of the Internal Revenue
Service” was or has been imposed by an administrative rule
or regulation, this Accused needs a copy of the applicable
rule or regulation.
(e) What statute, or section thereof, imposes a duty or
requirement “to make an income tax return TO said Director
of the Internal Revenue Service Center” ? (emphasis added
for clarification)
(f) IF a duty or requirement “to make an income tax
return TO said Director of the Internal Revenue Service
Center” was or has been imposed by an administrative rule
or regulation, this Accused needs a copy of the applicable
rule or regulation.
(g) What statute, or section thereof, imposes a duty or
requirement “to make an income tax return TO any other
proper officer of the UnitedStates.”? (emphasis added to
clarify this point).
(h) IF a duty or requirement “to make an income tax
return TO any other proper officer of the United States” was
or has been imposed by an administrative rule or regulation,
this Accused needs a copy of the applicable rule or
regulation.
(i) Please define the phrase “any other proper officer of
the United States” as used in the Information. Does this
phrase refer to a de jure officer of the United States as
appointed by the President of the U.S. pursuant Article II, §2
of the Constitution? Or does it refer to some other
claimed to be “officer of the United States”? Specify the
WHO that “other proper officer” is!
(j) Is the language of “fail to make an income tax return”
a cryptic euphemism used in lieu of a direct and positive
statement of “fail to file an income tax return”?
This Accused cannot understand a so-called “charge”
not made nor can a defense be effective.
THEREFORE: The government attorney(s) should be
required to reply and respond to all of the above. Be it so
ordered.
Dated ______ April
_______________
_________
IVE B.
PERSECUTED, Accused
Add Certificate of Service
UNITED STATES DISTRICT COURT
BACKWARD DISTRICT OF ANYWHERE
UNITED STATES OF AMERICA
V. NO. RX-010YC
IVE B. PERSECUTED
MOTION TO DISMISS CHARGES
(Lack of Essential Element)
COMES NOW the Accused, by special appearance in challenge of
jurisdiction, pursuant Rule 12(b)(2), to state:
A. The charging instrument, an Information, presents five counts of failure
type of offenses punishable under §7203.
B. In order to comply with constitutional safeguards concerning due
process of law and the right to be informed of the nature and cause of the
accusation rules of procedure have been promulgated to regulate and
simplify as well as to “standardize” the process which is due.
C. FRCrP Rule 7 specifies the content of an Indictment, or an Information,
and portions relevant here are:
“The indictment or the information shall be a plain, concise and
definite written
statement of the essential facts constituting the offense charged.”
“The indictment or information shall state for each count the
official or customary citation of the statute, rule, regulation or other provision
of law which the defendant is alleged therein to have violated.”
D. The Information fails to state in each count the official citation to a
statute or code section which allegedly has been violated, as expressly
required by the Rule. Additionally, the Information fails to specify in a
written form in plain, concise and definite statement all of the essential facts
in substantial allegations so as to inform the defendant and the court exactly
of the nature of the offense intended to be charged.
1) At two places within each count the wording of, “to make an income tax
return” appears. And from that one can glean that the nature of the
complaint has something to do with income tax returns, that is, not a return
in regard to some other tax, such as a distiller’s tax. That the Information
specified INCOME TAX returns helped to narrow the field to that particular
species of return.
2) Because of the allegations about making an INCOME TAX return in each
count one can determine that the missing citation of the provision
supposedly violated must be located within Sub-Title A of the tax code. In
order to be sufficient within the context of this Information one can discern
that the nature of the text, if any there be, as relates to the or those missing
statute section(s) would impose a requirement or duty to make (and file?) a
return; an income tax return. The non-cited and missing statute section(s),
if any, would be the one or more section(s) that supposedly were
violated, not section 7203!
3) In addition to the omission of citation of statute section(s) supposedly
violated, there is no written statement of the essential facts concerning a
duty or requirement to make an income tax return. In lieu of any substantial
allegation(s) the Pleader substitutes the phrase, “he was required by law”,
which is merely a conclusion of law, if such law actually exists. And if there
is no portion of the income tax law which expressly and clearly imposes a
duty and requirement to make an INCOME TAX return then the above
quoted pleader’s conclusion is not a conclusion concerning something that a
statute supposedly says. Instead, the quoted phrase represents a blatant
fraud in pleading.
This Accused challenges, and this court should insist that the government
attorney(s) shall cite and produce copies of the section(s) of the income tax
statute which imposes a duty to make an income tax return.
4) A duty and requirement to make a return is an essential element to
constitute an offense under section 7203, and must be plainly, concisely and
definitely alleged in an Indictment or an Information as required by Rule 7(c)
FRCrP. And then, later, must be proved at trial. It is suggested that the only
means of evidencing such a proof is to produce copies of the statute
section(s) which impose the duty to make the particular type of tax return at
issue.
5) In the instance of this Information, the duty and requirement to make a
return is not alleged conformably with the Rule 7(c). Indeed, not at all
because a Pleader’s conclusion is not a substantial allegation of fact and
emphatically not of an essential fact. Such a conclusion should be treated as
not being an allegation at all.
6) The failure to allege an essential fact, as required by the Rule, yields a
defective and insufficient charge, one which, in this instance, is fatally
defective and cannot be resurrected.
THEREFORE: The effort at the charges in the Information, all five
counts, must be dismissed. Be it so ordered.
Dated this ______of April, 2009.
_______________________
;
IVE B. PERSECUTED, Accused
{Add Certificate of Service – directed to U.S. Attorney by way of U.S.
Mail. Get address from Clerk of court }
NOTE - - - [NOT to be appended to the above paper! This is info for you.
“It is now a well established fact that Congress never enacted any
Statute(s) at Large creating a specific liability for taxes imposed by Subtitle
A of the Internal Revenue Code. By comparison, Congress has enacted
Statute(s) at Large creating specific liabilities for taxes imposed by Subtitles
B and C of the
Internal Revenue Code. On this key point, see 26 CFR 1.1-1(b) and
Commissioner v. Acker, 361 U.S. 87, 4 L. Ed.2d 127, 80 S. Ct. 144 (1959),
quoting in pertinent part:
But the section contains nothing to that effect, and, therefore, to
uphold this addition to the tax would be to hold that it may be imposed by
regulation, which, of course,the law does not permit. United States v.
Calamaro, 354 U.S. 351, 359; Koshland v. Helvering, 298 U.S. 441, 446-
447; Manhattan Co. v. Commissioner, 297 U.S. 129, 134. [Bold emphasis
added]
UNITED STATES DISTRICT COURT
BACKWARD DISTRICT OF ANYWHERE
UNITED STATES OF AMERICA
v. No. RX-010YC
IVE B. PERSECUTED
MOTION FOR ACQUITTAL
COMES NOW the Accused, after the government has
rested from its presentation, to remind the court of lack of
evidence(s) or proof(s) of the government’s claims as alleged, as
follows:
1) This Accused renews the previously filed “MOTION TO
DISMISS CHARGES”, especially at point 3 & 4, and herein contends
that the government has not adduced evidence such as to show and
prove that this Accused is a “person” who is “required under this
title” - - to make a return; an income tax return. This applies to all
counts.
2) Additionally, the Information asserts that this Accused failed “to
make an income tax return”. The Information does not allege in
any plain, concise and definite language that this Accused failed to
FILE any return document so made. Perhaps the lack of such an
allegation can be explained by the fact that a failure to FILE an
income tax return has not been made an offense within section
7203.
3) Beyond doubt the government has not adduced any
evidence so as to prove that this Accused has failed “to make a
return”; an income tax return. The mere fact that some supposedly
government official or employee did not receive a return is not a
proof of a failure “to make a return”; an income tax return. This
applies to all counts.
4) This Accused renews the previously filed “4th MOTION TO
DISMISS”, especially at points 6 & 7, and herein contends that the
government has not adduced evidence such as to show when such
a return must be made; not the when that such a “return”
supposedly must be “filed” because that has not been alleged, nor
has a “failure to supply information” been alleged. This applies to
all counts.
5) The Information directly and specifically states that the
Accused failed “to make an income tax return TO a District Director
of the Internal Revenue Service”, or, as in an alternative, “TO a
Director of an Internal Revenue Service Center”, or, as another
alternative, “TO any other proper officer of the United States”. The
first two alternatives of this allegation have been and are impossible
of performance and proof for the reason that the supposedly
existing offices and officers specified as “District Director” as well
as “Director” (of a service center) ceased to exist by the year 2000
because of an IRS Reorganization Plan as mandated by Title I of the
“Internal Revenue Service Restructuring and Reform Act of 1998”,
P.L. 105 – 206, §1001, 112 Stat. 685, at 689.
6) In this case there is no proof that this Accused did not send
(file?) a copy of a “return” TO such non-existent
personnel.
Accordingly, upon a lack of proof as above indicated, this
court should rule an acquittal. Be it so ordered.
Dated _____________
__________________________
&n bsp; & lt;
/SPAN> __________________
_______
IVE B. PERSECUTED, Accused
Cert of Service not needed.
Footnote --- This paper is to be “motioned-up” verbally at the close
of the government’s case, that is, immediately after the
government “rests”. Provide a copy of this paper to the judge and
to the government attorney right after you have motioned it up.
&nbs p;
