Re: [tips_and_tricks] Re: 26 U.S.C. s 7343 only applies to business entities ...
- It is ALL about duty, and nothing else. Your duty to file returns
is what the IRS bases their case on if they take you to court
for willful failure to file.
So my research centered around how you acquired the duty.
EO 11997, June 15 2003
"Sec 3. The head of each agency shall designate, or provide for the
designation of, the officers or employees whose duty it shall be
to withhold taxes, file required returns, and direct payment of the taxes
withheld, in accordance with this Order, any regulations prescribed
by the Secretary of the Treasury, and the new applicable agreement."
This EO starts out with this statement:
"By virtue of the authority vested in my by Sections 5516, 5517, and 5520
of Title 5 of the United States Code, and Section 301 of Title 3 of
the United States Code, and as President of the United States of
America, in order to authorized the Secretary of the Treasury to provide for
the withholding of county income or employment taxes as authorized by
Section 5520 of Title 5 of the United States Code as amended by
Section 408 of Public Law 95-30, as well as to provide for the withholding of
District of Columbia, State and city income or employment taxes, it
is hereby ordered as follow."
Now look at 31 CFR 215 where the duty to withhold is specifically addressed:
31 CFR 215.4
(a) A State, city or county which does not have an existing agreement and wishes
to enter into a Standard Agreement shall indicate in a letter its agreement to be
bound by the provisions of subpart C. The letter shall be addressed to the Fiscal
Assistant Secretary, Department of the Treasury, Washington, DC 20220, and be signed
by an officer authorized to bind contractually the State, city or county. Copies
of all applicable State laws, city or county ordinances and implementing regulations,
instructions, and forms shall be enclosed. The letter shall also indicate the title and address of the
official whom Federal agencies may contact to obtain forms and other information
necessary to implement withholding.
Sec. 215.7 Parties.
The parties to this agreement are the Secretary and the State, city or county which has
entered into this agreement pursuant to 5 U.S.C. 5516, 5517, or 5520 and
Executive Order 11997 (June 22, 1977).
Notice under Sec 215.4, withholding does not commence until State, city or county
sends a letter, signed by an officer authorized to bind contractually the State,
city or county.
Federal agencies acquired the duty because of EO 11997.
State, city or county entities acquired the duty ONLY after
they send a letter to the Fiscal Assistant Secretary agreeing
to be bound contractually under Subpart C. Subpart C
is the provisions of the Standard Agreement. And each
entity has THEIR OWN SEPARATE AGREEMENT.
Notice any other common thread? Note the reference
to 5 U.S.C. 5516, 5517 or 5520, in both EO 11997
and the Standard agreement.
Now go look at the Collection Authority of the IRS under Delegation
Order 29, under IRM section 184.108.40.206:
"Authority: To certify and approve as accountable officers Internal
Revenue collections in such manner and on such forms as the Financial
Management Service of the Department of the Treasury shall designate
and/or require pursuant to the provisions of the Treasury Financial Manual,
and all amendments and revisions thereof, and to designate in writing
employees of the Internal Revenue Service under their supervision who
have authority to do the same.
The treasury financial manual is available online at www.fms.treas.gov.
The authority of Vol I, part 3 is in section 1015 - Authority
where again referenced is 5 U.S.C. 5516, 5517 and 5520.
Totally lacking is ANY section which provides for or states
the application of duty to any other group.
Also worth noting is this simple fact. If they must
have a letter - IN WRITING to bind contractually
a State, city or county to this duty, how can they bind
you to this duty without your letter in writing? IF YOU
HAVE NEVER SENT THIS LETTER agreeing
to be contractually bound, how can you be bound in
The agreement must come first, then comes the duty to file returns
because of the agreement. Sign the agreement, then you
become liable. Don't sign it, you are not liable. 31 CFR
215 says it is a CONTRACTUAL OBLIGATION.
Puts this privacy act notice in a different light doesn't it?
"They say you must file a return or statement with us for any
tax you are liable for."
hugger8@... wrote:Great information. I believe everyone is missing the most important part of 7343. Where it states, ". . .who as such officer, employee or member is under a duty to perform the function for which the violation occurs."That was from memory. I believe the most important word in that definition is duty, because the only person(s) who have a duty, job description, are subject to 7343 penalties. For example, who is required to file a form 730 for a Nevada casino? The 21 dealers, bartenders, of course not, because it is for reporting sports "wagers" that were accepted by the casino. What form is prescribed by a 21 dealer's job description to be filed with the IRS. NONE, he has no DUTY to file any form. as part of his employment contract..Wally
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