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Fw: THE VICTORY THAT WASN'T

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  • Tom Kearse
    ... From: To: Undisclosed-Recipient:; Sent: Sunday, March 30, 2003 9:56 AM Subject: Fw: THE VICTORY THAT WASN T ... From: dmeador To: DanMeador Sent: Sunday,
    Message 1 of 1 , Mar 30, 2003
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      ----- Original Message -----
      From:
      Sent: Sunday, March 30, 2003 9:56 AM
      Subject: Fw: THE VICTORY THAT WASN'T

       
      ----- Original Message -----
      From: dmeador
      Sent: Sunday, March 30, 2003 09:14
      Subject: THE VICTORY THAT WASN'T

      I need to apologize for playing catfish. In case you didn’t know, a catfish gets caught when he opens his mouth. Once he opens his mouth, he can’t see or hear. That was my grandfather’s theory on the subject.

      The Ken Evans “press release” appeared to claim a judicial victory. I wouldn’t have used the press release format to make the announcement had I won a case, but someone else might so I took what was written for what I thought was face value where in fact Evans lost his case at the district court level and was rebuffed by an appeals court. In other words, he won nothing.

      Fortunately, others took Evans to the task so I don’t have to worry about further background. I copied a series of posts from the ICE Bucket discussion group, beginning with the Evans “press release” and ending with his confession that he lost at the district & appellate court levels. ICE, Dave Champion, Evans & an anonymous contributor participated in the email dialogue. The posts follow my comments.

      The Evans press release was useful for analytical purposes, and if litigated properly I believe the basic posture behind what appeared to be a judicial victory claim will be successful, but the announcement was at best misleading, and in retrospect, appears to be outright dishonest.

      As a rule I don’t engage in Internet disputes and don’t intend to rail against Mr. Evans, either, but the kind of misleading announcement he made is an example of what we don’t need in the tax honesty movement. Unfortunately, it isn’t particularly unusual.

      I owe DanMeador list subscribers an apology. I took the bait. I’m doing what I can to correct the error. But Mr. Evans’ credibility suffered considerable injury. My disposition is somewhat like my grandfather used to claim: If you do me wrong once, shame on you. If you do me wrong twice, shame on me. Hereafter when I see something Mr. Evans posts, there will be a red light. I won’t share what he has to say unless or until I can verify his claims.

      Tax law, the judicial system … these are all complex subjects that require considerable investigation to understand. There is more than an even chance that everybody will occasionally be wrong. God knows I’ve been wrong – I’ve been at it for ten years and still don’t know answers to many of the mysteries. But there is no legitimate excuse for advancing illegitimate claims and intentionally misleading people.

      In the last eighteen months we’ve successfully stopped numerous garnishments and other levies, removed several liens and have assisted with successful litigation. But we don’t publish each success because we don’t have silver and gold bullets – we aren’t 100% successful. What works in one case or one jurisdiction might not work in the next. There are currently too many variables, most of which have to do with the people involved. One judge, appeals officer, revenue officer or whatever might acknowledge and comply with the law where the next will completely ignore it.

      Elements of the Evans theory are legitimate. He allegedly asked for a liability determination, and in the event there was no liability, he wanted what he previously paid refunded. Liability for federal tax rests on burden of proof requirements framed in ยง 6001 of the Internal Revenue Code; there must be implementing regulations applicable to the fact circumstance, and informal claim doctrine accommodates the kind of claim Evans allegedly made. So far as the law is concerned, the Secretary of the Treasury bears the burden of establishing liability by publishing regulations or providing direct written notice. Until the Secretary fulfills his duty, there is no liability.

      But did Evans understand his position and his litigation options? Whether he did or not, his suit wasn’t successful.

      Did IRS personnel and DOJ attorneys engage in dirty tricks? It would be more surprising if they didn’t than if they did. But regardless of what the adversary does, misleading people about the case outcome isn’t warranted.

      Dan Meador

       

       

      For release: March 7, 2003

      IRS MAKES 'TIME BARRED' ASSESSMENT -

      REQUIRED TO ISSUE TOTAL REFUND TO TAX HONESTY ADVOCATE

      Kennett Square, Pennsylvania -

      After over two years of litigation, the IRS is required by law to refund approximately $13,000.00 to Tax Honesty Advocate and Libertarian activist, Ken Evans. "This is a huge victory," said Evans, "and demonstrates once again that the misapplication of the federal income tax is the single greatest financial fraud in world history."

      In the spring of 2000, Evans sent a letter to the IRS asking how much, if anything, he owed for the tax year 1999 and further asked for a refund of anything in excess of what the law said he owed. The IRS did not respond. Nine months later and in accordance with federal law, Evans filed a refund lawsuit in Federal District Court in an attempt to require the IRS to refund his money or provide evidence to the contrary.

      Shockingly, throughout the entire lawsuit, the Department of Justice, which represented the IRS, did not at any time make the argument that Evans actually owed income tax. The DOJ simply claimed that Evans was 'required to file a return.' However, in direct contradiction to the DOJ's position, an IRS Supervisor informed Mr. Evans on tape that he was not required to file an income tax return. This was later reinforced further by IRS internal computer documentation, which confirmed Evans' lack of a requirement to file a return.

      Yet, in June, 2001, the District Court dismissed Evans refund claim and stated in its opinion, "...this Court rejects all of Evans' arguments concerning his income tax liability for the 1999 tax year."

      So how much did the Court say that Evans owed? Well, the Court didn't actually say that Evans owed anything. In fact, the Court couldn't because the Department of Justice did not provide any evidence of Evans' liability. So, what now? Well, there are specific procedures that the IRS is required to follow in order to establish liability. In Evans' case, however, the IRS seems to have thrown those procedures out the window.

      "In my case, the evidence is so overwhelming that IRS and DOJ employees see the law more as a hindrance than as something they are required to obey," Evans comments, "Even though the statutes and regulations of federal law themselves do not say that I owe income tax, the IRS tried to illegally create a record of assessment, which is considered prima facie evidence of liability. These procedures, which the IRS has been engaging in for decades, are now being exposed for the fraudulent activity that they are. This is due, in part, to the IRS Reform and Restructuring Act of 1998. This act made public the internal
      codes that the IRS uses in the computer files that it keeps on Americans."

      Evans continues, "Every step of the way, the IRS has violated the law. In June of 2002, the IRS sent me a Notice of Deficiency in relation to 1999. This specific action was illegal because the IRS is required to provide me with an Appeals conference prior to its issuance, yet they did not. They went so far as to lie about the reason that they denied the conference. But, their crowning fraudulent achievement was the recordation of a time barred assessment on November 18, 2002."

      The law requires the IRS to make assessments within specific time periods in order to be valid. Yet, in Evans' case, internal IRS documentation proves that an IRS agent illegally recorded a time barred assessment in Evans' computer file. Further, federal law requires the IRS to notify individuals of assessments within sixty days. But, the IRS has not yet sent Evans a 'Notice and Demand for Payment,' even though the assessment was recorded over one hundred days ago.

      "This doesn't surprise me in the slightest," said Evans, "The IRS will go to almost any length to hide this fraud. The only reason that I am even aware of the time barred assessment is because I contacted the IRS of my own volition and asked a random IRS employee for a printout of their computer file on me. The agent that made the assessment obviously didn't send me a Notice and Demand for Payment because he knows that the assessment is illegal."

      Victoria Osborne, a Forensic Accountant of TPI Associates (
      http://www.tpirsrelief.com ), has confirmed that the IRS is required to issue a complete refund plus interest to Evans. Your use of Yahoo! Groups is subject to
      http://docs.yahoo.com/info/terms/

       

       

      Mr. Evans may or may not ever see the money, but his win appears to be a great precedent that seems likely to make judicial cover-up for the IRS all that much more messy and embarrassing. ICE

       

      List member provides these cases for consideration with regard to the "time-barred assessment" issue as it relates to "non-filers". The
      contributor does not have time to engage in discussion of this matter.
      However, other list members who wish to contribute to a fuller
      understanding of the issue should feel free to post info/opinions, etc.
      ICE

      Sent: Saturday, March 08, 2003 4:31 PM
      Subject: Re: IRS MAKES TIME BARRED ASSESSMENT - REQUIRED TO ISSUE
      COMPLETE REFUND

      Hey ICE,

      ... assessments are provided for in statute, and masterfile codes have
      no bearing on assessment; "Court not persuaded by defendant's assertion
      that assessment statute expiration dates are set forth in IMF, finds
      that assessment statute is established in IRC, not in IRS computer
      files;" United States v. Boyce et al., 87 AFTR2d Par. 2001-957, 2001 TNT 101-16

      A litigant had better have more foundation regarding issues of material
      fact that just the IMF; "Transaction code missing from IMF does not
      prove Notice of Deficiency was not sent to plaintiff; plaintiff fails to prove defect in IRS assessment or levy;" Wiley, v. United States, et al,Docket No. C2-91-667, November 24, 1992, 1993 TNT 13-26.

      Furthermore, there is no such thing as a "time barred" assessment for a
      nonfiler. Time barred assessments are only relevant to those who file
      income tax returns. Assessment can be made against nonfilers at any
      time.

      (anonymous contributor)

       

      From: "Dave Champion"
      Sent: Monday, March 10, 2003 8:10 AM
      Subject: RE: IRS MAKES TIME BARRED ASSESSMENT - REQUIRED TO ISSUE
      COMPLETE REFUND

      I may be crazy but in reading the article below I do not see anything
      that says any federal court awarded Ken Evans anything. Here's what I
      see:

      1) Ken creating his own press release.
      2) Ken discussing his own point of view on the law.
      3) The US District Court dismissing Ken's case.
      4) Continuing discussion by Ken of the merits/demerits of the dismissed
      case.
      5) A statement that "TPI Associates has confirmed that the IRS is
      required to issue a complete refund plus interest to Evans".

      What I do not see anywhere is any statement or wording that says that
      any court agreed with Ken on anything, no less any evidence that any
      court granted a judgment in his favor. Unless I'm missing something, I
      think the "press release" is nothing but a way to generate positive hype for a court case that was a 100% loser.

      Re-read it and tell me if I'm missing something.

      Dave

       

      From: ice [mailto:ice@i...]
      Sent: Monday, March 10, 2003 3:40 PM
      To: kevans@d...
      Subject: Fw: IRS MAKES TIME BARRED ASSESSMENT - REQUIRED TO ISSUE
      COMPLETE REFUND

      Ken,

      Very interesting case. Was there a final court ruling in your favor? If
      so, it would be very helpful if you would post or otherwise make
      available a date-stamped copy of the final ruling. This would provide a
      more firm basis for others to follow in similar actions.

      Remarks of Mr. Champion are typical of the reactions we have been
      receiving since posting your story.

      ICE

       

      From: "Ken Evans" <kevans@d...>
      Sent: Monday, March 10, 2003 1:06 PM
      Subject: RE: IRS MAKES TIME BARRED ASSESSMENT - REQUIRED TO ISSUE
      COMPLETE REFUND


      No, there was no final court ruling in my favor. Mr. Champion is
      entirely correct that the District Court dismissed my refund and this
      was affirmed by the 3rd Circuit.

      What my press release relates to is the IRS' illegal attempt and
      complete failure to establish a record of liability.

      Remember, you can't owe income tax unless and until a lawful assessment
      is made.

      As stated in the press release, the IRS sent me a Stat Notice last June.

      There was a 60 day window in which the IRS was supposed to make an
      assessment (based on the Stat Notice, of course), but they DID NOT DO
      THAT.

      I'll be filing a Request for Abatement to receive my refund WITHOUT
      having to pay it. Because the assessment is time barred by statute,
      Victoria Osborne is supremely confident that the IRS will refund every
      penny plus interest. She said that she has never seen a single instance
      that a time barred assessment was brought to their attention that they
      did not abate (declare null and void).

      If the IRS EVER did get around to sending me a "Notice and Demand"
      (which they were required to within 60 days, but didn't) I would then
      pay the assessment and file a new lawsuit for the same tax year.

      Hope this helps. If you get more questions, let me know. And please
      feel free to pass this on to Mr. Champion. If he'd like to discuss it
      with me personally, he's got my email.

      BTW, even though the District Court DID dismiss my refund claim, the
      whole point of the lawsuit was to get the IRS to argue that I owed some
      particular amount of money. My whole argument was my lack of liability.

      THEY NEVER DID THAT, because in order to do that they need an
      assessment WHICH OF COURSE they have now demonstrated their inability
      to do. This continues to illustrate the corruption in the court system.

      (I am willing to bet that the IRS lackeys will argue that this was
      nothing more than bureacratic inefficency - but considering my history
      in relation to this particular tax year - that attempt at justifying the IRS' time barred assessment is COMPLETELY IRRATIONAL).

      Oh, one last point. Mr. Champion is entirely incorrect in his belief
      that my press release is nothing but a way to generate hype for my court case.

      This press release is about how, EVEN though I did not file a return for 1999, EVEN though I filed a lawsuit demanding the IRS show me my
      liability .... After ALL THAT (and then some), the IRS has demonstrated
      that they cannot lawfully make an assessment against me.

      Ken

       

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