FW: DECLARATION OF FACT & MEMORANDUM 0F LAW on Notice of Tax lien
From B. Burgess:
DECLARATION OF FACT & MEMORANDUM 0F LAW
Notice of Lien
(1) Notices of Liens are being filed in violation of the Federal Tax Lien Act of 1966. Public Law 89--719, 80 Stat. 1125, Exhibit A, in conjunction with the Legislative History, Senate Report No. 1708, which states, in part, at the very beginning of the Senate Report:
"Since the adoption of the Federal income tax in 1913, the nature of commercial financial transactions has changed appreciably. * * * In an attempt to take into account these changed commercial transactions, and to secure greater uniformity among the several states, a Uniform Commercial Code was promulgated somewhat over 10 years ago by the American Law Institute and the national Conference of Commissioners on Uniform State laws. * * * This bill is in part an attempt to conform the lien provisions of the internal revenue laws to the concepts developed in this Uniform Commercial Code. It represents an effort to adjust the provisions in the internal revenue laws relating to the collection of taxes of delinquent persons to the more recent developments in commercial practice (permitted and protected under State law) and to deal with a multitude of technical problems which have arisen over the past 50 years."
(2) Any Liens filed by the Internal Revenue Service agent or officer must meet the Uniform commercial Code practices, hereinafter UCC, in Section 9. Within Section 9 there are three criteria that have to be met when filing a Notice of Lien. If the three criteria are not met, there is a violation of the statute law. Filing false and fraudulent documents violates Title 18 USC 1001 and the various companion State laws. The Senate Report and the Public Law listed above, makes it clear the matter has to be contested in the State where the situs of the property lies, both Real and personal property, as it does not lie in the venue of the United States, 28 USC 3002 (15).
(3) The three required criteria are:
(1) There must be a valid UCC-l Form filed, upon which is shown the alleged debtor's signature and the creditor's signature. Without these two signatures on this instrument, there is an invalid Notice of Lien filed.
(2) There must be a financing statement/security agreement signed by the alleged debtor and the secured party, the IRS agent, as specified in Section 9--402 of the UCC. This financing statement is also mentioned in Section 9--403 of the UCC. Without this any Notice of Lien filed, is invalid and a dolus.
(3) There must be a valid court order, based on a court judgment wherein the alleged debtor has had due process opportunity to contest the alleged debt. Without this instrument and due process, there is no lawful authority and the Notice of Lien is invalid.
(4) Lack of any one of the above is sufficient cause for the recording officer to immediately reject any attempt to file a Notice of Lien by any IRS agent. There is no actual Lien placed upon any debtor until a court hearing and due process is afforded, otherwise it is an attempt of taking of property in violation of the 5th amendment as stated in 26 CFR Part 600 at Section 601.106 (f) (1) I,.
(5) One of the main and least understood problems is that the IRS has authority only over certain distinct class of people, which is those involved in Alcohol Tobacco Firearm (ATF) Mfg., Government employees, Law enforcement, Law enforcement officers and those private people who have a contract with any Federal or State government to do business with those legal entities, to actually place a Notice of Lien and not an actual Lien, provided they follow the UCC procedures meeting the three criteria above. This is found in the Federal Register. The Federal Register of Wednesday, November 14, 1990, Vol. 55. No 220 reveals proof of the only people the IRS has the authority to Lien/Levy upon.
(6) Noting on page 47604, under BACKGROUND, the IRS has the power as the collecting agent for the Alcohol, Tobacco and Firearms (ATF), since all of these provisions under 26 CFR were transferred to Title 27 CFR part 70. Notice in the Administrative Procedure Act it was not necessary to publish this Decision as it was a mere transfer within the Bureau of Internal Revenue as agents of the IRS can still collect for other agencies but not for their agency itself.
(7) One might think that this is the only class of people that the IRS has authority to place a Notice of Lien/of Levy upon. This is not the case. In column 3 of page 47604, please note the list of subjects in 27 CFR Part 70. There you will find subjects listed which also includes Government employees, Law enforcement and Law enforcement officers. If you continue to read all the parts which continue on to page 47605, you will not find the private man listed, as he is not in the list of subjects, to which any Notice of Lien or Notice of Levy applies.
(8) Please look in column 3 on page 47605 and observe the amended Part 70. The authority is listed as Title 5 USC 301 and 552 and then the parts of Title 26 that were moved to Part 70. Title 5 Sections concerns itself with Government Employees only and the penalties, criminal sections, lien and levy sections in 26 USC that apply to this class of "persons" and the AFT "persons" who are the "taxpayers." No private man is listed.
(9) We now have to move to page 47622 to section 70.161, to see "to whom' the entire Part 70 will apply. Section 70.161 continues to page 47623 under (4) (i) (A) & (B), (ii) & (iii). Please note when reading (4) (i) that the employee is only a federal government employee... The last sentence of (i) states, "As used in this paragraph, the term "employer" means: And then it lists the U.S. Government Only. (ii) Then lists State and Municipal employees only and finally, (iii) lists Seamen only, with the attendant section of 26 USC.
(10) Moving to page 47624 to column 3, Section 70.163 (d), to see to whom the designation in tax law that the term "person" applies only to those Government employees and Law enforcement officers, listed as "subjects" because the "person" is the "taxpayer." Please note that at the beginning it states, "In addition to the definition given in Section 70.11 of this part, * * *." Part 70.11 is only the definition of person found in 26 USC 7701(a) (1) and 26 USC 7343 which supports the fact that only "legal entities" having a contract with the Federal or State governments, such as Law enforcement officers and Law enforcement found on page 47604 who are the "individuals", List of subjects, are the subject of Part 70, Notices of Liens and Levy. The provisions for these "persons" of Section 70.11 and 70.163 are related to "subtitle E and (and subtitle F as relates to subtitle E)." Section 70.163 (d) also refers to Section 70.161(a) (4) (i) defining who is the "employee."
(11) The law states very clearly the "subjects" to whom the Notice of Lien/Levy apply. There is not one mention of the private sector man, unless that private sector man has a contract with any State or United States government in doing a "Trade or Business" with the governments. The Lien process must follow Section 70.143 (as found on page 47616. This is one of the three criteria and that is the Financing Statement/security agreement, which is explained. Very clearly it states "contract." There must be a "holder of a security interest" at (a) (4). At (d) it defines "security."
(12) This means that the IRS agent must produce the supporting document when filing a Notice of Lien under the UCC, adopted by the Congress to allow the IRS to file. This is to prove the validity of the Notice of Lien because the alleged debtor's signature MUST be on the document. A mere statement, even certified, that the alleged debtor owes a certain amount is not sufficient to overcome the requisites of the UCC and the Pub. Law mentioned, much less the requirement of due process
(13) Page 47619 at section 70.148 (a) (i) (ii), (2) and (3) ((b) (1) & (2), states where the Notice of Liens/Levy are to be filed. Within the same section at (c), is the absolute proof that the private man cannot have a Notice of Lien Filed upon him under the UCC by the IRS agent.
(14) (c) Is stated here to clearly show the IRS agents are using a discontinued Form of a Notice of Lien in violation of promulgated regulations. (c) Specifically states that, "The notice referred to in Section 70.145 of this part SHALL be filed on ATF Form 5651.24 "Notice of federal Tax Lien under Internal revenue Laws…" Such notice is valid NOTWITHSTANDING any provision of law regarding the form or content of a notice of lien. * * *." (Emphasis added.) The Notice is also referenced in section 70.205.
(15) ATF F 5651.2 (2—91) , available from the Office of Management and Budget when requesting a copy of the 668 '1 Notice of Lien, notes on page three at F 668 (Y): "See explanation #23." On page four it states at #23, "The item you requested is a computer generated form and is not available to the public from the Internal Revenue Service." Mr. Johnson also stated, Forms 668Y, 4340, and 4907 are not mentioned in IRS' list of administrative forms currently in use." It is not available because the Office of Management and Budget did not approve the Form for use against the public, therefore, it cannot be used on the public as it does not meet the requirements of Title 44 USC for a Form to be used. Plus the fact that the OMB office has no idea what IRS is using the 668Y Form otherwise they would not have asked for a copy. Therefore, it can be used only on those subject in Part 70 of 27 CFR that are not the public, and that is "Government employees and Law enforcement officers," as they are not subject to the public Notice requirements of Title 44 as it is an in house Form and cannot be used on the people in general they are "Not properly subject to lien." Please note that the Form ATF 5651.2 was received marked numerous times with canceled so nobody could use it.
(16) Proceeding, page 47644 Section 70.232, confirms the validation that the IRS agent needs in filing a Notice of Lien, in that, it mentions two of the criteria, the court ordered judgment and the security interest document as it refers to 70.148, 70.143 (a), (e) & (g). The IRS MUST follow this because the IRS is not exempted from UCC Section 9-302 and must comply with Section 9--303, and all other sections of the UCC as dictated by the Public Law 89-719.
(17) The officer recording any Notice of Lien, MUST require of, regardless whether it is a private man, private corporation or any State or Federal government agency, as it is mandatory under the UCC, as adopted by Congress in 1963, P.L. 88--243 and put under the Federal Tax Lien Act of 1966, to have one of the three instruments to validate that the Notice of Lien is not bogus. Without this safeguard the IRS officer can freely, wantonly, and with no regards for the truth create a bogus Notice of Lien with no authorizing document, other than his word that a debt is due and owing on a "computer generated notice" as quoted by the OMB.
(18) Since only those involved in ATF, Government employees, Law enforcement and Law enforcement officers are subjects to the Lien/Levy under Part 70 and as stated in 26 USC 6321,6322,6323, & 6331 (a), those provisions of the USC do not pertain to private people, in respect of any Notice of Lien/Levy. Thus a lien on a private person by the IRS constitutes dolus by omission, by the agent signing the bogus Notice of Lien-or Levy, as 26 USC 6331 (a), which states that it applies only to federal employees, is missing. This would alert any recorder that the one lien or levied must be a federal or state employee as listed in 27 CFR Part 70. One must remember the word "taxpayer," and "person" in the legal context of this process is NOT the private man or private corporation, because neither is involved with a "trade or business" as defined in 26 USC 162 and 26 USC 7701 (a) 26 nor the "person" as defined in 26 USC 7343, who are all 26 USC 7701(a) (14) Taxpayers.
(19) Clearly, no "IRS agent" may file a lien, nor has he the authorization. This evidence is found on page 4760e at 70.11, meaning of terms. Laced throughout the entire Federal Register is the reference that only BATF officers from the Chief, Tax Processing Center are authorized to file liens and their signatures must be on the Notice of Lien, Sale, Seizure and so forth i.e. sections, but not limited to, 70.34, 70.42, 70.64, 70.71, 70.144c, 70.150, 70.161, 70.165, 70.182, 70.204, 70.211, 70.231, 70.232, 70.242 and continuing to the end at 70.487. These sections are all highlighted for your edification. Further evidence is on page 47633 at 70.191, wherein it states that no action of any kind will take place without the authorization of the Director Bureau of ATF or the Chief Counsel for the BATF. Not one mention of an IRS agent is found to have authorization to initiate or participate in a Lien/Levy process.
(20) This Notice is produced with the intent to inform those officials and offices that are recording Notices of Lien, that certain procedures of the law are not being followed by agents of the Internal Revenue Service. Failure to follow the required procedures would be cause for concern that damages are occurring because the IRS agent/official is in willful violation of 26 USC 6103, 7213, and 7214 and Title 18 USC 1001, 241, 872, 1341, 1962, 1963 and a variety of State criminal laws as well. The IRS agent is filing unsubstantiated Notices of Liens and levies in the county recorder's office and the Secretary of States office or the Clerk of the Court, within each of the several States. The unverified Notices are filed by custom rather than by following the law.
(21) The IRS is not above the law and is not exempted from the procedures laid out by the Public Law of Congress. That is an irrefutable fact. The recorders or takers of property (credit is the same as property if it is destroyed), should carefully look at Section 70.167, Page 47624 wherein it states at (c), "Any person who mistakenly surrenders to the United States property or rights to property not properly subject to levy is NOT relieved from liability to a third party that owns the property." Emphasis added. This is also substantiated at page 3750 wherein the District Directors of the IRS can be sued. So can any other person aiding in the illegally placed invalid Notice of liens.
(22) It appears the phrase "Not properly subject to levy" is meant to be, two things, One is the lack of any of the three criteria to file a lien/levy. Secondly, there is never a fact presented that the one being lien is one who is the "subject" defined in Part 70 of 27 CFR on page 47604 as a "government employee" (State or Federal), "Law enforcement officer," or engaged in the business of "Alcohol, Tobacco or Firearms" or a "Seaman" defined in Title 46. Therefore, it is clear exhibits A through G, ONLY pertain to those "subject to Lien/Levy" as defined to be those people mentioned above and not the private sector man/woman. Those who aid and abet in this, even innocently, are supposed to have superior knowledge of the law, be well trained to use it, or should have known the law regulations, Rules, Statutes and procedures of the UCC, that they deal in everyday. Failure to follow these requirements means they could suffer tort damages and criminal damages. Especially after reading the revision notes Title 18 USC Sections 4, then 3 and finally 2 in that order.
(23) This Notice is to provide notice and prevent those in the filing and recording of these Notices of Liens, from being enmeshed into these violations of the law that are routinely being done by IRS agents everyday. It is very easily to be misled when reading the P.L. 89-719 and the Senate Report 1708, into thinking that the Federal Tax Lien laws apply to the private sector people because of the fraud by omission of certain key factors, namely, those "not properly subject to Lien/Levy)." The law requires an agency that uses this Public Law to promulgate regulations and they are required to be published in the Federal Register. This Bureau of Alcohol Tobacco and Firearms promulgated the regulation so that it becomes clear as to whom the Lien/Levy process applies, thereby taking the private sector man and corporation out of the "taxpayer" status as they are "NOT PROPERLY SUBJECT TO LIEN."
A caveat for those who want to use this is the wording in all the 27 CFR Part 70 Regulations has been amended to read "the appropriate ATF officer".
PART 301_PROCEDURE AND ADMINISTRATION
--Table of Contents
Sec. 301.6323(h)-1 Definitions
(a) Security interest--(1) in general. The term ``security interest'' means any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time-- (i) If, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien (as provided in subparagraph (2) of this paragraph (a) arising out of an unsecured obligation; and (ii) To the extent that, at such time, the holder has parted with money or money's worth (as defined in subparagraph (3) of this paragraph (a).
For purposes of this subparagraph, a contract right (as defined in paragraph (c) (2) (i) of Sec. 301.6323(c)-1) is in existence when the contract is made. An account receivable (as defined in paragraph (c)(2)(ii) of Sec. 301.6323(c)-1) is in existence when, and to the extent, a right to payment is earned by performance.
A security interest must be in existence, within the meaning of this paragraph, at ... For example, to be afforded priority under the provisions of paragraph (a) of Sec. 301.6323(a)-1 a security interest must be in existence within the meaning of this paragraph before a notice of lien is filed.
__________ Information from ESET Smart Security, version of virus signature database 5349 (20100807) __________
The message was checked by ESET Smart Security.