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IRS Substitute For Return authority

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  • Dan Rezac
    I hope this helps a bit to show you the fraud that the IRS commits when it makes up a dummy tax return. No Statute at large nor session law has been shown
    Message 1 of 22 , Nov 24, 2010
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      I hope this helps a bit to show you the fraud that the IRS commits when it makes up a 'dummy' tax return.

      No Statute at large nor session law has been shown which would abrogate the rights to govern oneself, to earn a living, to acquire, possess and control property, to be secure in property, to be free of Bills of Pains and Penalties and slow corruption of blood, and to be left alone.

      IRS proceeds by first Substituting a return for a case where no return is filed using uncertified information returns to establish a color of claim, then fraudulently makes a "dummy return" on 1040 form without authority as 1040 is conspicuously absent as evidenced by their own *Internal Revenue Manual (IRM).*

      *IRM* [5.1] 11.9 (05-27-1999)

      *IRC* 6020(b) Authority

      The following returns may be prepared, signed and assessed under the

      authority of IRC 6020(b):

      Form 940, Employer's Annual Federal Unemployment Tax Return

      Form 941, Employer's Quarterly Federal Tax Return

      Form 942, Employer's Quarterly Tax Return for Household Employees

      Form 943, Employer's Annual Tax Return for Agricultural Employees

      Form 720, Quarterly Federal Excise Tax Return

      Form 2290, Heavy Vehicle Use Tax Return

      Form CT-1, Employer's Annual Railroad Retirement Tax Return

      Form 1065, U.S. Partnership Return of Income

      The following are authorized to execute returns under IRC 6020(b):

      Revenue officers.

      Automated Collection System (ACS) and Collection Support function

      (CSf) managers GS-9 and above.



      Thus without authority, in a secret default upon the people if they don't take the "proposal" to tax court, at the final determination which is made as if the people defaulted and the party takes the matter to the tax court thereafter, every argument is termed frivolous because only the IRS and court knows of an assumed default. There is never any competent foundational evidence of a debt owed the government which could meet the rules of evidence, jurisdiction, or venue in any court of the land, yet the IRS moves to collection ignoring any paper rebuttal by the People and without any notorious default being made, thus a secret process that denies due process and equal treatment under the law.

      *IRM* 25.6.5.4.8.6 (10-01-2001) Statutory Notice Of Deficiency (90 Day Letter) Statutory Notices Of Deficiency are proposed deficiency notices issued by Examination, Collection, Deferred Adverse Tax Consequence (DATC/ASTA) and the Underreporter functions..

      If the taxpayer does not petition the Tax Court, and does not agree to the deficiency, then the case is closed as unagreed and the deficiency can be assessed because the taxpayer defaulted.

      The pertinent part of the Internal Revenue Manual quoted above, show the secret default which is not unlike �Heads IRS Wins, Tails you Lose�� or getting a bill you don't owe, and if you complain it is assessed and collected because the party didn't further injure himself in expending time and property to take the matter to court and is considered in default. Such is blatant lack of due process and unequal treatment, as the People are blocked from their First Amendment Redress right to object to a false proposal, where the IRS has the burden of proof to a lawful claim. If any complaint is made it is deemed frivolous because you didn't go to tax court, a blatant denial of due process because it denies notorious default and opportunity to set the default aside. 1st, 4th, 5th, 7th, 9th, 10th amendment rights are completely ignored, as well as the rights to be left alone, to acquire property, to control property, to not be offended by bills of pains and penalties, corruption of blood, not be destroyed by your creation and among others to earn a living, as commanded by the Creator of the People.

      Study of the Internal Revenue Manual or IRM shows the procedure used on the People, where the IRS uses information returns which are not certified nor meet the rules of evidence so can't be used in any court of law, which arbitrarily name compensation for labor as "taxable income" and the employee as "taxpayer" hereafter meaning "alleged taxpayer", without any authority or delegation in law to do so, to create a "proposal" which is sent to the "taxpayer" for his consideration in a "*Statutory Notice of Deficiency*" (* IRM* 25.6.5.4.8.6 (10-01-2001)) or "SNOD". The *IRM* calls "*Substitute For Returns*" or "SFR" (*IRM* [5.1] 11.9 (05-27-1999) for forms 940-3, 720, 2290, CT-1 and 1065) as justification for the SNOD, but the manual does not contain any authority for making a "dummy" of the 1040 form, nor is it mentioned in the statute or code. The IRS then takes the uncertified hearsay evidence information returns to "dummy" a SFR, then creates a form 4340 which is certified and used as evidence of an assessment if the "taxpayer" doesn't petition the tax court for appeal of the administrative "proposal". While Congress gives a remedy for a "dummy" "proposal" which is not with any lawful foundation, either in fact or law but upon hearsay, the remedy defies the due process standards of the 4th, 5th, 6th, 7th, 8th, 9th, and 10th amendments. The IRS calls the statement part of the SNOD a "bill of particulars" which is more like a Bill of Pains and Penalties, but which evidently gives it a criminal flavor, so that the 7th amendment may not be applicable, but either the 6th or 7th is for sure. The lack of due process is evident by differential standard for the burden of proof, intentional irreparable injury to the Petitioner in tax court to have to hire an attorney or labor, pay a fee, and exchange liberty in making the suit in the tax court. The burden of proof is upon the IRS at law for it is their assertion and should not be borne by the People, unless the law is turned upside down, which abrogation of the common law burden upon the party making the assertion has not been done with clear intent in any statute at large, but merely given by Congress to give some fake sense of due process to the scheme, that by all reasonable and long established standards of law would violate Constitutional principles. Thus a trial by jury for either the bill of particulars, be it criminal, or for a controversy over $20 in case of civil, being denied in the process lacks fundamental fairness, Constitutional restraint and due process. Further, it encourages a form of barratry in that every year the "taxpayer" would have bring the same or similar process in the tax court to his punishment in life, in liberty and property, thus discouraging and chilling the exercise of the First Amendment.

      If the "taxpayer" doesn't petition the tax court or protests the administrative fabrication of an excess jurisdictional/venue "bill of particulars" the SNOD is assessed as a "default" at law, quoting from the IRM, "If the taxpayer does not petition the Tax Court, and does not agree to the deficiency, then the case is closed as unagreed and the deficiency can be assessed because the taxpayer defaulted." This fabricated default, virtually changing �unagreed�� to �agreed�, is not notorious in any way and if the "taxpayer" doesn't injure himself by petition, he is held in default and no one is going to tell him, so upon the situation where a lien and levy naturally follows and the petitioner files for a Collection Due Process hearing, the IRS ignores everything but how the "taxpayer" is going to pay, much to the frustration of the "taxpayer" as he doesn't know he is in default and should be moving to set aside the default, to get back to the liability issue. Upon a "Final Determination" of the IRS the petitioner is then forced to petition the tax court who denies him due process as well by not telling him remedy is to move to set aside the default and dismissing his cause. Ironically, it is evident reading tax manuals written by attorneys that they don't even know what is going on. Thus anything brought by the "Petitioner" is deemed "Frivolous" and sustained by the court in the secret default, such that precedent is established for almost every argument even if it is valid. The whole process amounts to one large constructive fraud when the Congress, IRS, the DOJ IRS attorney, the Tax court judge, and virtually everyone but the Petitioner knows or should know because of their superior knowledge of law, that "taxpayer petitioner" is in default. The lack of due process lies not only with constructive fraud and excess of jurisdiction but the non notorious "default" at law, which is an absolute void in law, as all law is notorious and no remedy is provided by Congress that doesn't irreparably arbitrarily and capriciously injure the so called "taxpayer" by differential standard outside well established law. Convenient to Congress perhaps is the lack of a remedy at the "proposal" stage as any protest is viewed as a nullity actually chilling and voiding the First Amendment right at that stage and denying any meaning opportunity to be heard, thus assuring a certified assessment on the "dummy" return or SFR. Ironically, it isn't only 1040 forms that are "dummy", IRS* IFM* use "dummy TINs", and even "dummy NFTL" to make the computer apply "dummy" process. Most "taxpayers" are not aware of the dummy processes by IRS dummies, they just know that if they don't pay when told to and what amount, that they will be sorry when their bank accounts and compensation for labor ends up in seizure by executive branch summary procedure and irreparable harm results, even though there is no revealed nexus for jurisdiction/venue and they exist at all times outside the venue of Congressional code as this Man and others complain of.

      As shown there is no competent evidence upon the record because it is all �dummied�� by admission as shown by the policy and custom prescribed by the * IRM*.

      And certainly we cannot conclude, in the absence of language admitting of no other construction, that Congress intended that penalties for crime should be enforced through the secret findings and summary action of executive officers. The guaranties of due process of law and trial by jury are not be forgotten or disregarded. See *Fontenot v. Accardo* (C. C. A.) 278 Fed. 871. A preliminary injunction should have been granted.� *Lipke v. Lederer*, 259 U.S. 557 (1922).
    • esenter
      Sorry, but the income tax system is totally dependent on the voluntary disclosure of your income. The IRS can not make up a return for you -dummy or
      Message 2 of 22 , Nov 25, 2010
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        Sorry, but the income tax system is totally dependent on the voluntary disclosure of your income.  The IRS can not make up a return for you -dummy or otherwise- without your consent.  See Bull v. U.S., 295 U.S. 247 (1935).
         
        Now if the IRS discovers through other sources that you engaged in some income producing activity, they must first issue a notice of difficiency and give you an opportunity to contest their findings.  Tax Court is your only remedy unless you want to pay the tax first and file for a refund then.  See Flora v. U.S.,
        362 U.S. 145 (1960).
         
        If you go to Tax Court, the IRS will subpoena the witnesses who paid you the alleged income and they will testify at your trial.
         
        That is not fraud.
         
         
        ----- Original Message -----
        From: Dan Rezac
        Sent: Thursday, November 25, 2010 12:18 AM
        Subject: [tips_and_tricks] IRS Substitute For Return authority

         



        I hope this helps a bit to show you the fraud that the IRS commits when it makes up a 'dummy' tax return.


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      • lawfulzone
        Substitute or not, there is no income. The alleged $FRN received IS for the exchange of your time and your labor. The issues is; that the IRS states that
        Message 3 of 22 , Nov 26, 2010
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          Substitute or not, there is no income.

          The alleged $FRN received IS for the "exchange" of your time and your labor.

          The issues is; that the IRS states that your labor has a value of zero, nothing, zilch. So any $FRN that you receive as a result of your labor is income.
        • esenter
          ... While here the money was taken through mistake without any element of fraud, the unjust retention is immoral and amounts in law to a fraud on the
          Message 4 of 22 , Nov 26, 2010
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            ----- Original Message -----
            Sent: Friday, November 26, 2010 9:55 AM
            Subject: [tips_and_tricks] IRS Substitute For Return authority

             

            On Fri, 26 Nov 2010 00:35:07 -0600, "esenter" <esenter@...> wrote:
            > 
            >Sorry, but the income tax system is totally dependent on the voluntary
            disclosure of your income. The IRS >can not make up a return for you
            -dummy or otherwise- without your consent. See Bull v. U.S., 295 U.S. 247
            >(1935).

            "While here the money was taken through mistake without any element of fraud, the unjust retention is immoral and amounts in law to a fraud on the taxpayer's rights."Bull v. U.S., 295 U.S. 247 (1935).

            Please note that the taxpayer prevailed in that case.


            >Now if the IRS discovers through other sources that you engaged in some income producing activity, they must >first issue a notice of difficiency and give you an opportunity to contest their findings.

            This is the start of the fraud. "Income Producing Activity" is NOT legally equivalent to "Revenue Taxable Activity", but the IRS makes a presumption that it is just that. Revenue Producing Activity is clearly outlined in the Liability provisions of 26 USC. e.g. Alcohol, Tobacco, Firearms, Witholding Agent.

            I never said they were equivalent, nor does it matter.  The foundation of any case the IRS brings regarding the receipt of unreported income is that the alleged taxpayer engaged in some 'income producing activity'.  The only factual issue left to decide is the amount of income he was paid.


            >Tax Court is your only remedy unless you want to pay the tax first and file for a refund then. See Flora v. >U.S.,362 U.S. 145 (1960).

            Tax Court is not your only remedy. CDPH hearing per 26 U.S.C. 6330(c)(2)(B) Underlyinjg Liability http://www.law.cornell.edu/uscode/26/usc_sec_26_00006330----000-.html

            Please note that you may challenge the 'underlying liability' only IF you did not receive the statutory notice of deficiency.  Then, if you wish to appeal any adverse decision at the CDPH, that appeal is taken to the Tax Court.

            So, as I said, Tax Court is your only remedy unless you want to pay first and file for a refund.


            >If you go to Tax Court, the IRS will subpoena the witnesses who paid you the alleged income and they will >testify at your trial.

            IRS operates(with the approval of Congress) under what is known as a "rebuttable presumption of liability" They then proceed with everything in their power to make sure you can never rebut the presumption. This elevates their activity to that of a "conclusive presumption of liability" which is a DIRECT violation of Due Process of law and a felony in violation of 18 USC 241,242

            No, the NOD is given the 'presumption of correctness' which is rebuttable.  If you have taxable income, you are "liable" by definition.  You can even shift the burden of proof to the IRS if the IRS fails to show you engaged in some type of income producing activity.


            “Due Process is denied if any question of liability or fact is conclusively presumed against person” Cleveland Board of Education v. Loudermill 470 U.S. 572

            The IRS operates just like the Mafia. The Mafia says if you don't pay up, we break your legs. The IRS says if you don't pay up, we break your financial legs. One operates outside the law, the other operates under the "color of law"

            >That is not fraud.

            That IS FELONY FRAUD

            What you have failed to show is where there is anything that has been "conclusively presumed".


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          • Jake
            Note that the IRS uses § 6020(b) as their authority to do an SFR, but never mentions § 6020(a), although they do use it in one way.  As someone recently
            Message 5 of 22 , Nov 26, 2010
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              Note that the IRS uses § 6020(b) as their authority to do an SFR, but never mentions § 6020(a), although they do use it in one way.  As someone recently showed, § 6020(b) is applicable to a few types of business returns (940, 941, etc.), a heavy vehicle use tax, but NO "individual" return (1040, etc.) is on the list.

              In most cases, the IRS 1st sends out a "fishing expedition" letter asking for information & for you to sign the form & return it.  If you do give the info & sign the form, you GIVE the IRS the authority to do an SFR under § 6020(a), which states (emphasis added):

                 
              If any person shall fail to make a return required by this title or by regulations prescribed thereunder, but shall consent to disclose all information necessary for the preparation thereof, then, and in that case, the Secretary may prepare such return, which, being signed by such person, may be received by the Secretary as the return of such person.

              But if you do not fill out / sign the form, § 6020(a) no longer applies & they move on to the blatantly illegal "SFR Program". I have not seen a anyone compare the 2 parts of § 6020, show that they never gave "consent" under § 6020(a) & that no activity they're engaged in could possibly require any of the returns § 6020(b) applies to, but it would be a good argument to make & we have in a few situations that aren't far enough up the ladder yet to get a court ruling on.

              And a major point to me is that now you're not talking about any legal theory you have, you're talking about what the statutes actually say, so that should rule out any "frivolous argument" decision - we'll see. Probably be a year or so before we get far enough along for a court ruling, but in the meantime I think that would be a good issue to study for yourself.

              ~ ~ ~
















            • Cliff Bass
              Jake 6020(b) is a statute.  Can the IRS enforce or use a statute? In the Congressional Record of Administrative Procedure Act of 1946, (“APA of 1946”) 92
              Message 6 of 22 , Nov 27, 2010
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                Jake

                6020(b) is a statute.  Can the IRS enforce or use a statute?

                In
                the Congressional Record of Administrative Procedure Act of 1946,

                (“APA of 1946”) 92 Pt. 5. Cong.
                Rec. Rep. pg 5656 we find the following Congressional Intent presented by
                Representative Gwynne of Iowa stating, for the non-lawyers in Congress,that:


                After a law
                has been passed by the Congress, before it applies to the individual citizen there are about three steps that must be taken First, the bureau having charge of enforcement must write rules and regulations
                to amplify, interpret, or expand the statute that we passed; rule
                making, we call it.
                It
                was held Chevron v. Natural Resources
                Defense Council, 467 U.S. 837, 842, 843 (1984) that:

                When a court reviews an
                agency's construction of the statute which it administers, it is confronted with
                two questions. First, always, is the question whether Congress has directly
                spoken to the precise question at issue. If the intent of Congress is clear,
                that is the end of the matter; for the court, as well as the
                agency, must give effect to the unambiguously expressed intent of Congress. [FN9] The judiciary is the final authority on
                issues of statutory construction and must reject administrative
                constructions which are contrary to clear congressional intent (Sup.Ct.
                of US cites omitted) If a court, employing traditional tools of statutory construction, ascertains
                that Congress had an intention on the precise question at issue, that intention
                is the law and must be given effect.]The Congress says the IRS must promulgate, publish regulations.Congress created the 1935 Federal Register Act to govern runaway agencies in the making of some regulations called substantive regulations.  And force the courts to do what was the Congressional intent.Can the IRS assess you for the individual income tax?  (The reason I say individual income tax is because they do want you to file a 1040 or a 1040A which is titled individual income tax.)  Congress addresses that in 26 USC 6203 .  The assessment is required to be by regulation.26
                U.S.C. § 6203 – Method of assessment
                – “The assessment shall be made by
                recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations
                prescribed by the Secretary. 
                Upon request of the taxpayer, the Secretary shall furnish the taxpayer a
                copy of the record of the assessment.”
                Is there a 26 CFR 1.6203-xx regulation which complies with the requirements of Congress and the Federal Register Act of 1935?And while you are at it check out 26 CFR 1.6020-xx?
              • Ed Siceloff
                Do these cites from the law (statute and regulation) help anyone: Title 44 at 1501-1510 makes it necessary to publish implementing regulations to the exercise
                Message 7 of 22 , Nov 27, 2010
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                  Do these cites from the law (statute and regulation) help anyone:

                   

                  Title 44 at 1501-1510 makes it necessary to publish implementing regulations to the exercise of statutory authority when it has a general effect upon the public.  At 1507 it says that the content of the Federal Register, and thus the Code of Federal Regulations “shall be judicially noticed”. 

                    My interpretation of this is that the statute at 1507 demands judicial notice independent of a victim bringing it up. 

                   

                          Section 1505 says this:

                       “For the purposes of this chapter every document or order which prescribes a penalty has general applicability and legal effect.”

                   

                  We find the same legal facts verified by the Administrative Procedures Act, I think that is what it is called, at 5 USC 552.  It says at (A):

                      

                  (A)   descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

                   

                  Going with the same section of the statute, each amendment, each repeal, everything must be reflected in the CFR.  AND, it says the same thing, in 552, as it says in the CFR for title 26.  5 USC 552 says 

                      

                  “Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.”

                   

                  Then the cite from the IRS' own regulations 26 CFR:

                   

                   

                  And 26 CFR 601.702 says, a little more extensively:

                   

                        “(ii) Effect of failure to publish. Except to the extent that a person has actual and timely notice of the terms of any matter referred to in paragraph (a)(1) of this section which is required to be published in theFederal Register,such person is not required in any manner to resort to, or be adversely affected by, such matter if it is not so published or is not incorporated by reference therein pursuant to paragraph (a)(2)(i) of this section. Thus, for example, any such matter which imposes an obligation and which is not so published or incorporated by reference shall not adversely change or affect a person's rights”  My emphasis.

                   

                       The penalty sections starting at 7201, title 26, do not have implementing regulations.  The demand for a return, at 6012, involved in the IRS’ own citation noted on its forms sent to any of us, as the law giving them their right to demand information, has no implementing regulation.  One can check that out on the GPO site, in the Parallel Tables of Authority and Rules, pages 823 and 822 respectively.

                   

                    If the Statutes that govern the process of making a statute applicable to people demands the implementing regulation, as an announcement of the law to the specific people involved, and the courts proceed anyways, with all their successful prosecutions, are they not the criminals?  When the judge announces his sentence, is he not acting criminally.  How can a judge ever charge contempt when he has most of the time just demonstrated for all the world to see, at least those who have eyes, that he has no respect for the actual law, from the bench. He/she in collusion with the DOJ, are criminals.   

                   

                  Jake

                   

                  6020(b) is a statute.  Can the IRS enforce or use a statute?

                   

                  In

                  the Congressional Record of Administrative Procedure Act of 1946,

                   

                  (“APA of 1946”) 92 Pt. 5. Cong.

                  Rec. Rep. pg 5656 we find the following Congressional Intent presented by

                  Representative Gwynne of Iowa stating, for the non-lawyers in Congress,that:

                   

                   

                • MadDogMarine
                  ... accordance with rules or regulations prescribed by the Secretary. The real issue is LIABILITY,NOT ASSESSMENT(emphasis mine) 26 USC § 7491. Burden of
                  Message 8 of 22 , Nov 27, 2010
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                  >U.S.C. § 6203 – Method of assessment
                  >– “The assessment shall be made by
                  >recording the liability of the taxpayer in the office of the Secretary in
                  accordance with rules or >regulations prescribed by the Secretary.

                  The real issue is LIABILITY,NOT ASSESSMENT(emphasis mine)

                  26 USC § 7491. Burden of proof

                  (a) Burden shifts where taxpayer produces credible evidence
                  (1) General rule
                  If, in any court proceeding, a taxpayer introduces credible evidence with
                  respect to any factual issue relevant to ascertaining the LIABILITY of the
                  taxpayer for any tax imposed by subtitle A or B, the Secretary shall have
                  the burden of proof with respect to such issue.

                  http://www.law.cornell.edu/uscode/26/usc_sec_26_00007491----000-.html

                  There are no liability provisions in 26 USC for most Americans unless you
                  are involved in Alcohol,
                  Tobacco,Firearms etc.
                  The attached legal opinion is accurate and correct.
                  To avoid the complications this legal opinion raises, the IRS indulges in
                  what is known as
                  "a conclusive presumption of liability" as I previously indicated in
                  another post.
                  That is a direct violation of due process and law and raises to the level
                  of felony fraud.
                • Jake
                        6020(b) is a statute.  Can the IRS enforce or use a statute?  Enforce, if the statute gives the agency enforcement authority; use, as in act
                  Message 9 of 22 , Nov 28, 2010
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                         > 6020(b) is a statute.  Can the IRS enforce or use a statute? 
                    Enforce, if the statute gives the agency enforcement authority; use, as in act pursuant to, of course.
                       > The Congress says the IRS must promulgate, publish regulations.Congress created the 1935 Federal Register Act . . .
                    Don't fall for the argument that all statutes must have implementing regulations 'cause that's not true.  If a statute states that the Secretary (of the Treasury) shall promulgate regulations to carry out the provision of the statute then regulations are required, but if the statute does not state that regulations are to be promulgated, none are required.
                    But when a regulation(s) is required, the statute & regulation(s) must be read together to have any force of law.  Case in point: U.S. v. Mersky, 361 U.S. 431 (1960).  Excerpts:
                       An information filed in a Federal District Court charged appellees with having violated 19 U.S.C. § 1304 by removing from ten violins imported from the Soviet Zone of Germany, after their importation but prior to their sale to ultimate purchasers, labels reading "Germany/USSR Occupied," with intent to conceal the identity of the country of origin. The District Court dismissed the information on the ground that removal of the labels did not violate § 1304, because the applicable regulation appeared to require the Soviet Zone marking for tariff purposes only, rather than to apprise the ultimate purchasers of the place of origin, and also that the regulation was not sufficiently clear and unambiguous to justify a criminal prosecution.
                    * * *
                       Held:
                        1. The charges in the information are founded on § 1304 and the regulations thereunder; the information was dismissed solely because its allegations did not state an offense under § 1304, as amplified by the regulations; the statute and regulations are so inextricably intertwined that an interpretation of the regulations necessarily is a construction of the statute . . .

                       2. The regulation here involved appears to be aimed at the collection of duties, rather than the protection of ultimate purchasers in the United States; it is not sufficiently clear and unambiguous to furnish a basis for a criminal prosecution for violation of 19 U.S.C. § 1304; and the information was properly dismissed.
                    * * *
                       An administrative regulation, of course, is not a "statute." While, in practical effect, regulations may be called "little laws," they are, at most, but offspring of statutes. 
                    * * *
                       Here the statute is not complete by itself, since it merely declares the range of its operation, and leaves to its progeny the means to be utilized in the effectuation of its command.
                    * * *
                       Once promulgated, these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language. The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other.
                    And in that respect, the IRS fails miserably - they cite a portion of a statute or a regulation, but I have never seen where they apply the statute & regulation together as required.
                    Does § 6020 have implementing regulations?  Yep - in Parts 53 & 70 of Title 27 of the Code of Federal Regulations (Alcohol, Tobacco & Firearms) & 26 CFR § 301.6020-1.  However, I have never seen the IRS refer to or even acknowledge the existence of those regulations - they only cite § 6020(b).  And the regulations specify to whom/what 6020(b) applies - it's not a blanket they can throw over ever situation where no return has been filed, but they use it as if it was.
                       > Is there a 26 CFR 1.6203-xx regulation which complies with the requirements of Congress and the Federal Register Act of 1935?
                    The regulation applicable to IRC (26 U.S.C.) § 6203 is 26 found @ 26 CFR § 301.6203-1 & 301 is always a good place to start looking, as that's the Procedure & Administration section.  The Parallel Table of Authorities & Rules is a helpful cross-reference to find which regulation(s) (if any) apply to any given statute, but it is not "exhaustive" & there are regulations which are not listed in that Table.  
                    So don't make the mistake as others have of arguing that if there's no regulation listed in the Table there isn't one & regarding the Infernal Revenue Code, there are several that aren't in 26 or 27 CFR, they're in other sections like Title 31.  Yes, the IRS (actually the Sec. of the Treasury) intentionally makes regulations hard to find - for Titles of the U.S. Code other than 26 & 27, whatever regulations there are will be found in the same Title of the CFR.
                    ~ ~ ~   
                  • Jake
                        Section 1505 says this:     “For the purposes of this chapter every document or order which prescribes a penalty has general applicability and
                    Message 10 of 22 , Nov 28, 2010
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                         > Section 1505 says this:

                         > “For the purposes of this chapter every document or order which prescribes a penalty has general applicability and legal effect.”


                      The penalty aspect is a very important point & is the reason that the Form W-4 is not published in the F.R. - there's no penalty attached to it - i.e., there's no penalty for not filling one out.  But obviously, very few employers know that.


                      The issue came up quite some time ago & verified when a guy I know wrote the Chief Counsel for the IRS about the W-4 & the response he got, although worded in a round-about way, said you're right, the W-4 is not in the F.R. pursuant to 44 U.S.C. § 1505(a), but it doesn't need to be published because there's no penalty attached to it.


                      ~ ~ ~


                    • BOB GREGORY
                      *Not all regulations have the force of law. Only substantive (or legislative) regulations do. No regulation in Part 301 of Title 26 CFR has the force of law.
                      Message 11 of 22 , Nov 28, 2010
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                        Not all regulations have the force of law.  Only substantive (or legislative) regulations do. No regulation in Part 301 of Title 26 CFR has the force of law.  Even some regulations in Part 1 of Title 26 CFR (which supposedly contains only substantive regulations)  do not have the force and effect of law.  You need to read carefully the Authority section of the Electronic Code of Federal Regulations for the part in which you are interested. (ecfr.gpoaccess.gov)  One authority for all regulations is 26 CFR 7805, but that does not make them substantive.  Only the authority of a section of the United States Code or of a Statute at Large can make a regulation substantive. (See 1 CFR)

                        As an important example, 26 CFR 1.1-1, even though it is listed in Part 1 of 26 CFR has only one minor part which is substantive [1.1(h)-1].  All the rest is interpretive.  Consequently there is no force of law in that dreaded subparagraph 1.1-1(b), which reads as follows: 

                        (b) Citizens or residents of the United States liable to tax. In general, all citizens of the United States, wherever resident, and all resident alien individuals are liable to the income taxes imposed by the Code whether the income is received from sources within or without the United States. Pursuant to section 876, a nonresident alien individual who is a bona fide resident of a section 931 possession (as defined in §1.931–1(c)(1) of this chapter) or Puerto Rico during the entire taxable year is, except as provided in section 931 or 933 with respect to income from sources within such possessions, subject to taxation in the same manner as a resident alien individual. As to tax on nonresident alien individuals, see sections 871 and 877.

                        The reason it cannot be substantive is that there is no provision in section 26 USC 1 which creates any liability.  Thus any regulation which expanded upon that section in a purportedly substantive regulation would be expanding on the law passed by Congress.  That is a major no-no.  So the conniving Secretary of the Treasury and his IRS goons put the liability into a regulation which APPEARS to be substantive since it is in Part 1 of 26 CFR, but they did so with their fingers crossed behind their backs and only made one little part of that regulation substantive so that it would qualify to be in Part 1.  Is that sneaky or what?

                        Interpretive regulations are for the guidance of IRS/Treasury employees.  Though most are published in the Federal Register, they do not apply to most people.  But it is a good idea to know what they say, because they guide (or are supposed to guide) the IRS employees in their quest to screw you. 

                        Administrative/interpretive regulations are not required to have a public commentary period, though sometimes I believe  they do.

                        26 USC 6020(b) does not require a substantive regulation because it is a part of the law which give the Secretary authority do do something.  It imposes no requirement on the people.  Here is what it says.

                        Authority of Secretary to execute return
                        If any person fails to make any return required by any internal revenue law or regulation made thereunder at the time prescribed therefor, or makes, willfully or otherwise, a false or fraudulent return, the Secretary shall make such return from his own knowledge and from such information as he can obtain through testimony or otherwise.

                        There is an implementing interpretive regulation for 26 USC 6020 in 26 CFR part 301.  It is 26 CFR 301.6020-1.   Note, however, that a SUBSTITUTE FOR RETURN is apparently NOT a return, or it would just be called a RETURN.  The only authority in 6020(b) is for the Secretary to make a return.  I do not believe there is any authority in law for a substitute for return.  It is a paperwork artificiality that someone came up with in order to open an entry in an Individual Master File so that the IRS can PRETEND you submitted a return and then proceed to "examine" it and change the amount you owe.                       

                        ======================================================
                      • Patrick McKEE
                        According to the IRS regulations, the income tax is IMPOSED upon the “taxable income” of certain INDIVIDUALS. 26 CFR 1.1-1 Income tax on individuals. (a)
                        Message 12 of 22 , Nov 28, 2010
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                          According to the IRS regulations, the income tax is IMPOSED upon the “taxable income” of certain INDIVIDUALS.

                           

                          26 CFR 1.1-1  Income tax on individuals.

                          (a) General rule. (1) Section 1 of the Code imposes an income tax on the income of every individual who is a citizen or resident of the United States and, to the extent provided by section 871(b) or 877(b), on the income of a nonresident alien individual. For optional tax in the case of taxpayers with adjusted gross income of less than $10,000 (less than $5,000 for taxable years beginning before January 1, 1970) see section 3. The tax imposed is upon taxable income (determined by subtracting the allowable deductions from gross income). The tax is determined in accordance with the table contained in section 1. See subparagraph (2) of this paragraph for reference guides to the appropriate table for taxable years beginning on or after January 1, 1964, and before January 1, 1965, taxable years beginning after December 31, 1964, and before January 1, 1971, and taxable years beginning after December 31, 1970. In certain cases credits are allowed against the amount of the tax. See part IV (section 31 and following), subchapter A, chapter 1 of the Code. In general, the tax is payable upon the basis of returns rendered by persons liable therefor (subchapter A (sections 6001 and following), chapter 61 of the Code) or at the source of the income by withholding. For the computation of tax in the case of a joint return of a husband and wife, or a return of a surviving spouse, for taxable years beginning before January 1, 1971, see section 2. The computation of tax in such a case for taxable years beginning after December 31, 1970, is determined in accordance with the table contained in section 1(a) as amended by the Tax Reform Act of 1969. For other rates of tax on individuals, see section 5(a). For the imposition of an additional tax for the calendar years 1968, 1969, and 1970, see section 51(a).

                          http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div8&view=text&node=26:1.0.1.1.1.0.1.2&idno=26 

                           

                          Here are the DEFININTIONS of some words that people may want to keep in mind.

                           

                          INDIVIDUAL - 1 obsolete : INSEPARABLE, 2 a : of, relating to, or distinctively associated with an individual <an individual effort> b : being an individual or existing as an indivisible whole c : intended for one person <an individual serving>, 3 : existing as a distinct entity : SEPARATE, 4 : having marked individuality <an individual style>, synonyms see SPECIAL, CHARACTERISTIC

                          http://www.merriam-webster.com/dictionary/INDIVIDUAL

                           

                           

                          LIABLE - 1 a : obligated according to law or equity : responsible b : subject to appropriation or attachment, 2 a : being in a position to incur —used with to <liable to a fine> b : exposed or subject to some usually adverse contingency or action <watch out or you're liable to fall>

                          http://www.merriam-webster.com/dictionary/liable

                           

                          NOTICE - 1 a  : a notification or communication of a fact, claim, demand, or proceeding, see also process service;  The requirements of when, how, and what notice must be given to a person are often prescribed by a statute, rule, or contract. b  : awareness of such a fact, claim, demand, or proceeding

                          http://research.lawyers.com/glossary/notice.html

                           

                          REQUIREMENT - something required: a : something wanted or needed : necessity <production was not sufficient to satisfy military requirements> b : something essential to the existence or occurrence of something else : condition <failed to meet the school's requirements for graduation>

                          http://www.merriam-webster.com/dictionary/requirement

                           

                          REQUIRE - 1 a : to claim or ask for by right and authority b archaic : request, 2 a : to call for as suitable or appropriate <the occasion requires formal dress> b : to demand as necessary or essential : have a compelling need for <all living beings require food>, 3 : to impose a compulsion or command on : compel, 4 chiefly British : to feel or be obliged —used with a following infinitive <one does not require to be a specialist — Elizabeth Bowen>

                          http://www.merriam-webster.com/dictionary/required

                           

                          So WHO are those INDIVIDUALS that are LIABLE for INCOME TAX & thus are REQUIRED to file a return?

                           

                          26 USC 6001. Notice or regulations requiring records, statements, and special returns

                          Every person liable for any tax imposed by this title, or for the collection thereof, shall keep such records, render such statements, make such returns, and comply with such rules and regulations as the Secretary may from time to time prescribe. Whenever in the judgment of the Secretary it is necessary, he may require any person, by notice served upon such person or by regulations, to make such returns, render such statements, or keep such records, as the Secretary deems sufficient to show whether or not such person is liable for tax under this title. The only records which an employer shall be required to keep under this section in connection with charged tips shall be charge receipts, records necessary to comply with section 6053 (c), and copies of statements furnished by employees under section 6053 (a).

                          http://www.law.cornell.edu/uscode/26/usc_sec_26_00006001----000-.html

                           

                          26 USC 6011. General requirement of return, statement, or list

                          (a) General rule

                          When required by regulations prescribed by the Secretary any person made liable for any tax imposed by this title, or with respect to the collection thereof, shall make a return or statement according to the forms and regulations prescribed by the Secretary. Every person required to make a return or statement shall include therein the information required by such forms or regulations.

                          [REST OMITTED]

                          http://www.law.cornell.edu/uscode/26/usc_sec_26_00006011----000-.html

                           

                          Did the IRS INITIALLY give us NOTICE that we were an INDIVIDUAL REQUIRED to either FILE a RETURN or otherwise make a DETIRMINATION that we are LIABLE for INCOME TAX & thus SUBJECT to WITHHOLDING?

                           

                          26 CFR 31.6001-6   Notice by district director requiring returns, statements, or the keeping of records.

                          The district director may require any person, by notice served upon him, to make such returns, render such statements, or keep such specific records as will enable the district director to determine whether or not such person is liable for any of the taxes to which the regulations in this part have application.

                          http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=de87314e866de9fe6728f4c7589924f1&rgn=div8&view=text&node=26:15.0.1.1.1.7.16.6&idno=26

                           

                           

                          31.0-1   Introduction.

                          (a) In general. The regulations in this part relate to the employment taxes imposed by subtitle C (chapters 21 to 25, inclusive) of the Internal Revenue Code of 1954, as amended. References in the regulations to the “Internal Revenue Code” or the “Code” are references to the Internal Revenue Code of 1954, as amended, unless otherwise indicated.

                          ...

                          (b) Division of regulations. The regulations in this part are divided into 7 subparts. Subpart A contains provisions relating to general definitions and use of terms, the division and scope of the regulations in this part, and the extent to which the regulations in this part supersede prior regulations relating to employment taxes...Subpart E relates to the collection of income tax at source on wages under chapter 24 of the Code. Subpart F relates to the provisions of chapter 25 of the Code which are applicable in respect of the taxes imposed by chapters 21 to 24, inclusive, of the Code. Subpart G relates to selected provisions of subtitle F of the Code, relating to procedure and administration, which have special application in respect of the taxes imposed by subtitle C of the Code. Inasmuch as these regulations constitute Part 31 of Title 26 of the Code of Federal Regulations, each section of the regulations is preceded by a section symbol and 31 followed by a decimal point (§31.). Sections of law or references thereto are preceded by “Sec.” or the word “section”.

                           

                          [T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 8723, 62 FR 37492, July 14, 1997]

                           

                          Or did people merely ASSUME that they were LIABLE FOR INCOME TAX IMPOSED UNDER SUBTITLE A & either FILE a return and/or ask for WITHHOLDING which is for LIABILITY FOR INCOME TAX IMPOSED UNDER SUBTITLE A & it is collected at the source?

                           

                          26 USC 3402. Income tax collected at source

                          (a) Requirement of withholding

                          (1) In general

                          Except as otherwise provided in this section, every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with tables or computational procedures prescribed by the Secretary. [REST OMITTED]

                          n) Employees incurring no income tax liability

                          Notwithstanding any other provision of this section, an employer shall not be required to deduct and withhold any tax under this chapter upon a payment of wages to an employee if there is in effect with respect to such payment a withholding exemption certificate (in such form and containing such other information as the Secretary may prescribe) furnished to the employer by the employee certifying that the employee—

                          (1) incurred no liability for income tax imposed under subtitle A for his preceding taxable year, and

                          (2) anticipates that he will incur no liability for income tax imposed under subtitle A for his current taxable year.

                          The Secretary shall by regulations provide for the coordination of the provisions of this subsection with the provisions of subsection (f).

                          http://www4.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00003402----000-.html

                           

                           

                          26 CFR 31.0-2 General definitions and use of.

                          (a) In general. As used in the regulations in this part, unless otherwise expressly indicated--
                          (1) The defined in the provisions of law contained in the regulations in this part shall have the meanings so assigned to them.

                          (e) Subpart E. As used in Subpart E of this part, unless otherwise expressly indicated, tax means the tax required to be deducted and withheld from wages under section 3402 of the Code.

                          [T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6606, 27 FR 8516, Aug. 25, 1962; T.D. 6658, 28 FR 6631, June 27, 1963; T.D. 6983, 33 FR 18013, Dec. 4, 1968; T.D. 7280, 38 FR 18369, July 10, 1973]

                          http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=b37a99717d09637361325eef106cc520&rgn=div8&view=text&node=26:15.0.1.1.2.1.8.2&idno=26

                           

                           

                          31.0-3   Scope of regulations.

                          ...

                          (d) Subpart E. The regulations in Subpart E of this part relate to the withholding under chapter 24 of the Code of income tax at source on wages paid after 1954, regardless of when such wages were earned. The regulations in Subpart E of this part include provisions relating to the definition of terms applicable in the determination of the tax under chapter 24 of the Code, such as “employee”, “employer”, and “wages”. (For prior regulations on similar subject matter, see 26 CFR (1939) Part 406 (Regulations 120).)

                          ...

                          [T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 8305, July 2, 1964; T.D. 8723, 62 FR 37493, July 14, 1997]

                           

                          http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=4ce6a68d01f01af644b339bee6ee6d44;rgn=div5;view=text;node=26%3A15.0.1.1.2;idno=26;cc=ecfr#26:15.0.1.1.2.1.8.3

                           

                           

                          Exemption from federal income tax withholding. Generally, an employee may claim exemption from federal income tax withholding because he or she had no income tax liability last year and expects none this year. See the Form W-4 instructions for more information. However, the wages are still subject to social security and Medicare taxes. See also Invalid Forms W-4 on page 17.  IRS Publication 15, (Circular E), Employer’s Tax Guide, page 15

                          http://www.irs.gov/pub/irs-pdf/p15.pdf

                           

                          Patrick in California

                           

                          Founder, ALLIANCE for PEACE & PROSPERITY

                          http://groups.yahoo.com/group/alliancepeaceprosperity/

                           

                          "It ain't what ya don't know that hurts ya. What really puts a hurtin' on ya is what ya knows for sure, that just ain't so." -- Uncle Remus

                        • BOB GREGORY
                          *See comments interspersed in the text below.* On Sun, Nov 28, 2010 at 6:27 PM, Patrick McKEE ... *The Secretary has made no substantive regulation in Part 1
                          Message 13 of 22 , Nov 29, 2010
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                            See comments interspersed in the text below.

                            On Sun, Nov 28, 2010 at 6:27 PM, Patrick McKEE <paradoxmagnus@...> wrote:
                             

                            According to the IRS regulations, the income tax is IMPOSED upon the “taxable income” of certain INDIVIDUALS.

                             

                            26 CFR 1.1-1  Income tax on individuals.

                            (a) General rule. (1) Section 1 of the Code imposes an income tax on the income of every individual who is a citizen or resident of the United States and, to the extent provided by section 871(b) or 877(b), on the income of a nonresident alien individual. For optional tax in the case of taxpayers with adjusted gross income of less than $10,000 (less than $5,000 for taxable years beginning before January 1, 1970) see section 3. The tax imposed is upon taxable income (determined by subtracting the allowable deductions from gross income). The tax is determined in accordance with the table contained in section 1. See subparagraph (2) of this paragraph for reference guides to the appropriate table for taxable years beginning on or after January 1, 1964, and before January 1, 1965, taxable years beginning after December 31, 1964, and before January 1, 1971, and taxable years beginning after December 31, 1970. In certain cases credits are allowed against the amount of the tax. See part IV (section 31 and following), subchapter A, chapter 1 of the Code. In general, the tax is payable upon the basis of returns rendered by persons liable therefor (subchapter A (sections 6001 and following), chapter 61 of the Code) or at the source of the income by withholding. For the computation of tax in the case of a joint return of a husband and wife, or a return of a surviving spouse, for taxable years beginning before January 1, 1971, see section 2. The computation of tax in such a case for taxable years beginning after December 31, 1970, is determined in accordance with the table contained in section 1(a) as amended by the Tax Reform Act of 1969. For other rates of tax on individuals, see section 5(a). For the imposition of an additional tax for the calendar years 1968, 1969, and 1970, see section 51(a).

                            http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div8&view=text&node=26:1.0.1.1.1.0.1.2&idno=26 

                             

                            Here are the DEFININTIONS of some words that people may want to keep in mind.

                             

                            INDIVIDUAL - 1 obsolete : INSEPARABLE, 2 a : of, relating to, or distinctively associated with an individual <an individual effort> b : being an individual or existing as an indivisible whole c : intended for one person <an individual serving>, 3 : existing as a distinct entity : SEPARATE, 4 : having marked individuality <an individual style>, synonyms see SPECIAL, CHARACTERISTIC

                            http://www.merriam-webster.com/dictionary/INDIVIDUAL

                             

                             

                            LIABLE - 1 a : obligated according to law or equity : responsible b : subject to appropriation or attachment, 2 a : being in a position to incur —used with to <liable to a fine> b : exposed or subject to some usually adverse contingency or action <watch out or you're liable to fall>

                            http://www.merriam-webster.com/dictionary/liable

                             

                            NOTICE - 1 a  : a notification or communication of a fact, claim, demand, or proceeding, see also process service;  The requirements of when, how, and what notice must be given to a person are often prescribed by a statute, rule, or contract. b  : awareness of such a fact, claim, demand, or proceeding

                            http://research.lawyers.com/glossary/notice.html

                             

                            REQUIREMENT - something required: a : something wanted or needed : necessity <production was not sufficient to satisfy military requirements> b : something essential to the existence or occurrence of something else : condition <failed to meet the school's requirements for graduation>

                            http://www.merriam-webster.com/dictionary/requirement

                             

                            REQUIRE - 1 a : to claim or ask for by right and authority b archaic : request, 2 a : to call for as suitable or appropriate <the occasion requires formal dress> b : to demand as necessary or essential : have a compelling need for <all living beings require food>, 3 : to impose a compulsion or command on : compel, 4 chiefly British : to feel or be obliged —used with a following infinitive <one does not require to be a specialist — Elizabeth Bowen>

                            http://www.merriam-webster.com/dictionary/required

                             

                            So WHO are those INDIVIDUALS that are LIABLE for INCOME TAX & thus are REQUIRED to file a return?

                             

                            26 USC 6001. Notice or regulations requiring records, statements, and special returns

                            Every person liable for any tax imposed by this title, or for the collection thereof, shall keep such records, render such statements, make such returns, and comply with such rules and regulations as the Secretary may from time to time prescribe. Whenever in the judgment of the Secretary it is necessary, he may require any person, by notice served upon such person or by regulations, to make such returns, render such statements, or keep such records, as the Secretary deems sufficient to show whether or not such person is liable for tax under this title. The only records which an employer shall be required to keep under this section in connection with charged tips shall be charge receipts, records necessary to comply with section 6053 (c), and copies of statements furnished by employees under section 6053 (a).

                            http://www.law.cornell.edu/uscode/26/usc_sec_26_00006001----000-.html

                             

                            26 USC 6011. General requirement of return, statement, or list

                            (a) General rule

                            When required by regulations prescribed by the Secretary any person made liable for any tax imposed by this title, or with respect to the collection thereof, shall make a return or statement according to the forms and regulations prescribed by the Secretary. Every person required to make a return or statement shall include therein the information required by such forms or regulations.

                            [REST OMITTED]

                            http://www.law.cornell.edu/uscode/26/usc_sec_26_00006011----000-.html

                             


                            The Secretary has made no substantive regulation in Part 1 of 26 CFR requiring anyone to make a return. 
                             

                            Did the IRS INITIALLY give us NOTICE that we were an INDIVIDUAL REQUIRED to either FILE a RETURN or otherwise make a DETIRMINATION that we are LIABLE for INCOME TAX & thus SUBJECT to WITHHOLDING?

                             

                            26 CFR 31.6001-6   Notice by district director requiring returns, statements, or the keeping of records.

                            The district director may require any person, by notice served upon him, to make such returns, render such statements, or keep such specific records as will enable the district director to determine whether or not such person is liable for any of the taxes to which the regulations in this part have application.

                             

                            http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=de87314e866de9fe6728f4c7589924f1&rgn=div8&view=text&node=26:15.0.1.1.1.7.16.6&idno=26

                             

                             

                            31.0-1   Introduction.

                            (a) In general. The regulations in this part relate to the employment taxes imposed by subtitle C (chapters 21 to 25, inclusive) of the Internal Revenue Code of 1954, as amended. References in the regulations to the “Internal Revenue Code” or the “Code” are references to the Internal Revenue Code of 1954, as amended, unless otherwise indicated.

                            ...

                            (b) Division of regulations. The regulations in this part are divided into 7 subparts. Subpart A contains provisions relating to general definitions and use of terms, the division and scope of the regulations in this part, and the extent to which the regulations in this part supersede prior regulations relating to employment taxes...Subpart E relates to the collection of income tax at source on wages under chapter 24 of the Code. Subpart F relates to the provisions of chapter 25 of the Code which are applicable in respect of the taxes imposed by chapters 21 to 24, inclusive, of the Code. Subpart G relates to selected provisions of subtitle F of the Code, relating to procedure and administration, which have special application in respect of the taxes imposed by subtitle C of the Code. Inasmuch as these regulations constitute Part 31 of Title 26 of the Code of Federal Regulations, each section of the regulations is preceded by a section symbol and 31 followed by a decimal point (§31.). Sections of law or references thereto are preceded by “Sec.” or the word “section”.

                             

                            [T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 8723, 62 FR 37492, July 14, 1997]

                             

                            Or did people merely ASSUME that they were LIABLE FOR INCOME TAX IMPOSED UNDER SUBTITLE A & either FILE a return and/or ask for WITHHOLDING which is for LIABILITY FOR INCOME TAX IMPOSED UNDER SUBTITLE A & it is collected at the source?


                               Correct.  26 CFR Part 31 deals only with Employment Taxes and Collection of Taxes at the Source.  It does not relate in any way to Income Tax considered in the ordinary sense.  There is no statement of liability for the income tax per se except in 26 CFR 1.1-1, but, as I explained in a post yesterday, that regulation is not substantive and does not have the force of law.  Moreover, there is no district directory anywhere who can perform the function.  All district directors and their districts were disestablished back in 2001.                   

                             

                            26 USC 3402. Income tax collected at source

                            (a) Requirement of withholding

                            (1) In general

                            Except as otherwise provided in this section, every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with tables or computational procedures prescribed by the Secretary. [REST OMITTED]

                            …Definition of wages for COLLECTION OF INCOME TAX AT SOURCE

                            3401. Definitions

                            (a) Wages
                            For purposes of this chapter, the term “wages” means all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash

                              But what is an employee?

                                          
                                           (c) Employee
                            For purposes of this chapter, the term “employee” includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.

                              What does "includes" or "including" mean when used in Title 26?  This definition is from 26 USC 7701, which applies to all parts of Title 26:

                            (c) Includes and including
                            The terms “includes” and “including” when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.

                            How are those terms defined in the well-known Black's Law Dictionary?

                            Expressio unius est exclusio alterius.A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another.Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325; Newblock v. Bowles, 170 Okl. 487, 40 P.2d 1097, 1100.Mention of one thing implies exclusion of another.When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred.Under this maxim, if statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded.”

                            What have courts said about "includes" and "including?"

                            Includes is a word of limitation.Where a general term in Statute is followed by the word, ‘including’ the primary import of the specific words following the quoted words is to indicate restriction rather than enlargement.” [Powers ex re. Covon v. Charron R.I., 135 A. 2nd 829, 832 ]

                            "It is axiomatic that the statutory definition of the term excludes unstated meanings of that term.  Colautti v. Franklin, 439 U.S. 379

                            "Include or the participial form thereof, is defined to comprise within’; ‘to hold’; ‘to contain’; ‘to shut up’; and synonyms are  ‘contain’; ‘enclose’; ‘comprehend’; ‘embrace’.”  [U.S. Supreme Court, Montello Salt co. v. Utah, 221 U.S. 452, at 455, 466.]

                            “This fact only underscores our duty to refrain from reading a phrase into the statute when Congress has left it out. " '[W]here Congress includes particular language in one section of a statute but omits it in another ..., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.' " Russello v United States, 464 US 16, 23, 78 L Ed 2d 17, 104 S Ct. 296 (1983)

                            Rules of Statutory Construction for tax laws:  "expressio unius, exclusio alterius":  if one or more items is specifically listed, omitted items are purposely excluded.  See Becker v. United States, 451 U.S. 1306 (1981)

                            [Federal Tax Research: Guide to Materials and Techniques, Copyright 1990, Fifth Edition

                            “In the interpretation of statutes levying taxes, it is the established rule not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out.  In case of doubt they are construed most strongly against the government and in favor of the citizen.”

                            [Gould v. Gould, 245 U.S. 151, at 153 (1917)]

                            And what is an employer?


                              (d) Employer
                            For purposes of this chapter, the term “employer” means the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person

                            Consequently, if "employees" are officers, employees or elected officials, etc. as defined above and "includes" is a restrictive term as the Supreme Court has repeatedly ruled, and if "wages" means remuneration paid to employees, apparently the vast majority of people do not earn "wages."  And if an "employer" is the person for whom "employees" perform services, then "employers" are by necessity the federal government, state governments, county governments, city governments and any of their agencies or instrumentalities.  Consequently, though various businesses are commonly called employers, they are not "employers" in the sense of the legally defined term, and they do not pay "wages."

                            n) Employees incurring no income tax liability

                            Notwithstanding any other provision of this section, an employer shall not be required to deduct and withhold any tax under this chapter upon a payment of wages to an employee if there is in effect with respect to such payment a withholding exemption certificate (in such form and containing such other information as the Secretary may prescribe) furnished to the employer by the employee certifying that the employee—

                            (1) incurred no liability for income tax imposed under subtitle A for his preceding taxable year, and

                            (2) anticipates that he will incur no liability for income tax imposed under subtitle A for his current taxable year.

                            The Secretary shall by regulations provide for the coordination of the provisions of this subsection with the provisions of subsection (f).

                            http://www4.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00003402----000-.html

                             

                             

                            26 CFR 31.0-2 General definitions and use of.

                            (a) In general. As used in the regulations in this part, unless otherwise expressly indicated--
                            (1) The defined in the provisions of law contained in the regulations in this part shall have the meanings so assigned to them.

                            (e) Subpart E. As used in Subpart E of this part, unless otherwise expressly indicated, tax means the tax required to be deducted and withheld from wages under section 3402 of the Code.

                            [T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6606, 27 FR 8516, Aug. 25, 1962; T.D. 6658, 28 FR 6631, June 27, 1963; T.D. 6983, 33 FR 18013, Dec. 4, 1968; T.D. 7280, 38 FR 18369, July 10, 1973]

                            http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=b37a99717d09637361325eef106cc520&rgn=div8&view=text&node=26:15.0.1.1.2.1.8.2&idno=26

                             

                             

                            31.0-3   Scope of regulations.

                            ...

                            (d) Subpart E. The regulations in Subpart E of this part relate to the withholding under chapter 24 of the Code of income tax at source on wages paid after 1954, regardless of when such wages were earned. The regulations in Subpart E of this part include provisions relating to the definition of terms applicable in the determination of the tax under chapter 24 of the Code, such as “employee”, “employer”, and “wages”. (For prior regulations on similar subject matter, see 26 CFR (1939) Part 406 (Regulations 120).)

                            ...

                            [T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 8305, July 2, 1964; T.D. 8723, 62 FR 37493, July 14, 1997]

                             

                            http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=4ce6a68d01f01af644b339bee6ee6d44;rgn=div5;view=text;node=26%3A15.0.1.1.2;idno=26;cc=ecfr#26:15.0.1.1.2.1.8.3

                             

                             

                            Exemption from federal income tax withholding. Generally, an employee may claim exemption from federal income tax withholding because he or she had no income tax liability last year and expects none this year. See the Form W-4 instructions for more information. However, the wages are still subject to social security and Medicare taxes. See also Invalid Forms W-4 on page 17.  IRS Publication 15, (Circular E), Employer’s Tax Guide, page 15

                            http://www.irs.gov/pub/irs-pdf/p15.pdf


                             

                             

                            Patrick in California


                          • Jake
                                Not all regulations have the force of law.  Only substantive (or legislative) regulations do. No regulation in Part 301 of Title 26 CFR has the force
                            Message 14 of 22 , Nov 29, 2010
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                                 > Not all regulations have the force of law.  Only substantive (or legislative) regulations do. No regulation in Part 301 of Title 26 CFR has the force of law.


                              The U.S. courts of appeals don't agree & regarding Part 301 in particular (Procedure & Administration), have applied the regulations since the statute doesn't say how it is to be applied. A perfect example being 26 U.S.C. & 26 CFR 301.6302-1 (emphasis added):


                              26 U.S.C. § 6203. Method of assessment

                              The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the assessment.


                              26 U.S.C. § 301.6203-1 Method of assessment.


                              The district director and the director of the regional service 
                              center shall appoint one or more assessment officers. The district director shall also appoint assessment officers in a Service Center servicing his district.
                              The assessment shall be made by an assessment officer signing the summary record of assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, 
                              if applicable, and the amount of the assessment. The amount of the assessment shall, in the case of tax shown on a return by the taxpayer, be the amount so shown, and in all other cases the amount of the assessment shall be the amount shown on the supporting list or record. The date of the assessment is the date the summary record is signed by 
                              an assessment officer. If the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.


                              Brafman v. U.S., 384 F.2d 863 (5th Cir. 1967).  Excerpts (emphasis added):


                              The threshold issue of the validity of the assessment is crucial. We reverse on the ground that a valid assessment against the transferor’s estate was not made, because of an assessment officer’s failure to sign the certificate of assessment.


                              * * *


                              We are not moved by the Government’s argument that the assessment was valid and effective on July 23rd because it is certified for authenticity under the seal of the United States Treasury. There is no question as to the authenticity of the document or its admissibility into evidence. But authenticity of the certificate cannot be equated with validity of the assessment on the alleged date: a seal establishes the former, a signature of the assessment officer — as required by the Treasury Regulations — establishes the latter.


                              We find section 301.6203-1 of the Treasury Regulations reasonably adapted to carry out the intent of Congress as reflected in 6203 of the Code. We therefore adhere to our pronouncement in United States v. Fisher, 5 Cir. 1965, 353 F.2d 396, 398-399, that:

                                     In the absence of any better test, we give effect to the generally recognized rule that Regulations issued by the Secretary of the Treasury, pursuant to statutory authority, and when necessary to make a statute effective, although not a statute, may have the force of law. Fawcus Machine Co. v. United States, 282 U.S. 375, 51 S.Ct. 144, 75 L.Ed. 397; Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831.


                              * * *


                              We recognize that in sustaining Mrs. Brafman’s contention regarding lack of proper assessment within the limitations period we are disposing of this case on what could be termed a ‘technical defense’. As the district court said in United States v. Lehigh, W.D.Ark.1961, 201 F.Supp. 224, 234, this is both true and immaterial:
                                     Any procedural defense is in a sense ‘technical.’ The procedures set forth in the Internal Revenue Code were prescribed for the protection of both Government and taxpayer. Neglect to comply with those procedures may entail consequences which the neglecting party must be prepared to face, whether such party be the taxpayer or the Government.


                              See also, March v. IRS, 335 F.3d 1186 (10th Cir. 2003).  Excerpts (emphasis added):


                              In response to Appellants’ request for a proof of claim for unpaid taxes, the IRS provided Certificates of Assessments and Payments on Form 4340. Appellants assert that Form 4340 does not meet the requirements of the regulations.
                                   Title 26 U.S.C. § 6203 simply provides that [t]he assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon
                              request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the assessment.


                              The regulations accompanying this statute provide that “[t]he assessment shall be made by an assessment
                              officer signing the summary record of assessment.” 26 C.F.R. 301.6203-1 (2002). The regulations further provide that the summary record of assessment shall include certain information and that upon a taxpayer’s request, “he shall be furnished a copy of the pertinent parts of the assessment which set forth [certain information].” Id.


                              As Appellants note, the IRS has historically used Form 23C as the “Summary Record of Assessments” or “Assessment Certificate,” as explained in the Internal Revenue Service Manual.  As Appellants concede, however, the Service Manual is not binding on this court. Furthermore, no regulation or statute requires that the “copy of the record of the assessment” mentioned in 26 U.S.C. § 6203 be made on Form 23C.


                              Nevertheless, regardless of the form used, the IRS must comply with the regulations governing the assessment process. The purpose of these regulations is to ensure both the efficiency and the accuracy of the assessment process. The signature requirement in 26 C.F.R. § 301.6203-1 appears to serve multiple purposes. The requirement ensures that an assessment officer reviews the assessment before it is sent to the taxpayer, and the placing of the officer’s signature establishes an effective date of the assessment that is relevant for certain timing requirements.


                              There are several other cases which deal with the same issues, but the point is that (as stated in U.S. v. Mersky I posted previously) the statute is not complete without the regulation & only together do they have the force of law.  And if the regulation is worded clearly enough that there's no room for interpretation, the it cannot be called an "interpretive" regulation.


                              I can't count the number of claims I've seen / heard about regulations & the effects of them, but all were irrelevant to the real world.  What matters is what the higher courts have ruled & on the 301.6203-1 issue, the rulings have been consistent since @ least 1967 - the Brafman case being the oldest one I happen to have on the issue.


                              And remember that the CFR is the same as the U.S. Code in this respect - it's just a compilation of Regulations into categories; just as 26 U.S.C. is not "positive law", but the Public Laws / Statutes @ Large listed therein are, using the CFR citation just tells you where Regulation can be found - the CFR cite isn't "law", it's the Regulation itself (listed @ the end of the Reg. in the CFR) which authority stems from. 


                              ~ ~ ~




                            • Michael
                              ... Carry out the intent of Congress? Here are a few paragraphs from an article Dan Meador published, written by William Cooper, entitled BATF/IRS - -
                              Message 15 of 22 , Nov 30, 2010
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                                --- In tips_and_tricks@yahoogroups.com, Jake <jake_28079@...> wrote:
                                >
                                > Brafman v. U.S., 384 F.2d 863 (5th Cir. 1967).  Excerpts (emphasis added):
                                > We find section 301.6203-1 of the Treasury Regulations reasonably adapted to carry out the intent of Congress as reflected in 6203 of the Code. We therefore adhere to our pronouncement in United States v. Fisher, 5 Cir. 1965, 353 F.2d 396, 398-399, that:       In the absence of any better test, we give effect to the generally recognized rule that Regulations
                                > issued by the Secretary of the Treasury, pursuant to statutory authority, and when necessary to make a statute effective, although not a statute, may have the force of law. Fawcus Machine Co. v. United States, 282 U.S. 375, 51 S.Ct. 144, 75 L.Ed. 397; Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831.


                                Carry out the intent of Congress? Here are a few paragraphs
                                from an article Dan Meador published, written by William
                                Cooper, entitled "BATF/IRS - - Criminal Fraud:"

                                " Not Created by Congress

                                The Bureau of Internal Revenue, and the alleged Internal
                                Revenue Service, were not created by Congress. These are not
                                organizations or agencies of the Department of the Treasury, or
                                of the federal government. They appear to be operated through
                                pure trusts administered by the Secretary of the Treasury (the
                                Trustee). The Settler of the trusts and the Beneficiary or
                                Beneficiaries are unknown. According to the law governing
                                trusts, the information does not have to be revealed.


                                Not Found in 31 U.S.C.

                                The organization of the Department of the Treasury can be
                                found in 31 United States Code, Chapter 3, beginning on page 7.
                                You will not find the Bureau of Internal Revenue, the Internal
                                Revenue Service, the Secret Service, or the Bureau of Alcohol
                                Tobacco and Firearms listed. We learned that the Bureau of
                                Internal Revenue, Internal Revenue, internal revenue, Internal
                                Revenue Service, the Bureau of Internal Revenue Service, internal
                                revenue service, Official Internal Revenue Service, the Federal
                                Alcohol Administration, Director Alcohol Tobacco and Firearms
                                Division, and the Bureau of Alcohol Tobacco and Firearms are all
                                one organization. We found this obfuscated."
                              • Jake
                                Michael, referring to Brafman v. U.S. decision I quoted from, sez:     Carry out the intent of Congress? Here are a few paragraphs from an article Dan
                                Message 16 of 22 , Nov 30, 2010
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                                Michael, referring to Brafman v. U.S. decision I quoted from, sez:
                                   > Carry out the intent of Congress? Here are a few paragraphs from an article Dan Meador published, written by William Cooper, entitled "BATF/IRS - - Criminal Fraud:" 
                                I often quote from "legal precedent" decisions because in a real world case it matters not what you or anyone else thinks about any issue already settled by the courts, right or wrong - the court rulings are what we have to live with, like it or not.
                                   > The organization of the Department of the Treasury can be found in 31 United States Code, Chapter 3, beginning on page 7.

                                Incomplete citations slow even people who know what they're looking for down & I'm assuming you mean Title 31, Subtitle I, Chapter 3 (Dept. of the Treasury), Subchapter I (Organization), (§§ 301 - 313), or simply 31 U.S.C §§ 301 - 313.
                                   > The Bureau of Internal Revenue, and the alleged Internal Revenue Service, were not created by Congress. These are not organizations or agencies of the Department of the Treasury, or of the federal government.
                                The 1st statement is true; the 2nd is false.  One of the best pieces of evidence is the "Andrews Memo" I posted quite some time ago & have attached again, which proposed a name change from Bureau of Internal Revenue to Internal Revenue Service.  That Memo was from the Commissioner of Internal Revenue to the Secretary of the Treasury & the Secretary signed the order.  Quoting from the Memo,
                                   The proposed Treasury Department order, which is submitted for your signature, has been prepared for the purpose of changing the name of the Bureau of Internal Revenue to the Internal Revenue Service.  It seems to me that there is some real practical psychological value to be derived from the substitution of the word "Service" for "Bureau."  (emphasis added)   The name "Bureau of Internal Revenue" is not a name created by statute, but has been adopted by usage.  Our organization is referred to frequently in our official documents as "The Internal Revenue Service" and in my opinion is the preferable designation. 
                                Then Mr. Andrews, who blasted the IRS & it's operation after he left his short stint as Commissioner of Internal Revenue, went on to explain the statutory origin of his office, citing The Act of July 1, 1862 (12 Stat. 432), The Act of December 24, 1872 (17 Stat. 401), and he closes by saying, ". . . there has been no substantial change in the statutory position of the Commissioner and his office from The Act of December 24, 1872 to the present day.
                                In simple terms, the IRS, the BATF, etc. are merely bureaucracies which extend from the Office of Commissioner of Internal Revenue, which WAS created by Congress, although the individual sub-agencies & the bureaucracy as a whole was not.  The Office of Commissioner, like just about any other dept. of the gov't, it just got bigger & bigger, adding more subdivisions & personnel as the country & the population grew.
                                Certainly the beast grew out of control long ago & officers/agents/employees of the subdivisions break the law every day, but replacing the statutory origin of the office of Commissioner of Internal Revenue with any number of speculative theories steers people away from the facts.  I don't like those "Civil War" & "Reconstruction Acts" any better than you do, but they are what they are - the Commissioner is a position created by CONgress within the Treasury Dept. & the IRS, BATF, etc. are under the Commissioner.
                                ~ ~ ~  
                              • BOB GREGORY
                                *I did not just make up that statement out of some part of my anatomy. It ... I did not just make up that statement out of some part of my anatomy.  It is in
                                Message 17 of 22 , Dec 1, 2010
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                                  I did not just make up that statement out of some part of my anatomy.  It is in the Administrative Procedure Act.  It is implemented by regulations in 1 CFR.

                                  Note that 26 USC 6203 and its implementing regulation at 26 CFR 1.6203-1 do not require the people (taxpayers) to DO anything.  They place responsibility on the Secretary.  Consequently 6203 does not need a substantive regulation.  Yet in this case the Congress TOLD the Secretary he would need to prescribe rules or regulations, so he did in Part 301, with contains interpretive and administrative regulations for running the Department of the Treasury.

                                  It is entirely logical that the court should rule that the Treasury Department must follow its own regulations, particularly when, according to Congress, regulations would be needed to flesh out the details or their requirement in the law.

                                  I do not disagree with the Fawcus Machine Co. case cited below, but it was about a corporate excess profits tax and had nothing to do with 301.6302-1.  Since the case was in 1918, it pre-dated the Administrative Procedure Act and its clear differentiation of substantive and interpretive regulations and the codification of those regulations into different parts of the CFR depending on whether or not they were substantive or administrative/interpretive/procedural.

                                  The following is from 26 CFR 601.702:

                                  (a) Publication in the Federal Register—(1) Requirement. (i) Subject to the application of the exemptions and exclusions described in the Freedom of Information Act, 5 U.S.C. 552(b) and (c), and subject to the limitations provided in paragraph (a)(2) of this section, the IRS is required under 5 U.S.C. 552(a)(1), to state separately and publish currently in theFederal Registerfor the guidance of the public the following information—

                                  (A) Descriptions of its central and field organization and the established places at which, the persons from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions, from the IRS;

                                  (B) Statement of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures which are available;

                                  (C) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

                                  (D) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the IRS; and

                                  (E) Each amendment, revision, or repeal of matters referred to in paragraphs (a)(1)(i)(A) through (D) of this section.

                                  (ii) Pursuant to the foregoing requirements, the Commissioner publishes in theFederal Registerfrom time to time a statement, which is not codified in this chapter, on the organization and functions of the IRS, and such amendments as are needed to keep the statement on a current basis. In addition, there are published in the Federal Register the rules set forth in this part 601 (Statement of Procedural Rules), such as those in paragraph E of this section, relating to conference and practice requirements of the IRS; the regulations in part 301 of this chapter (Procedure and Administration Regulations); and the various substantive regulations under the Internal Revenue Code of 1986, such as the regulations in part 1 of this chapter (Income Tax Regulations), in part 20 of this chapter (Estate Tax Regulations), and in part 31 of this chapter (Employment Tax Regulations).


                                  Note that substantive regulations are "adopted as authorized by law" and published in part 1 (in the case of Income Tax Regulations).  Note also that this regulation clearly identifies part 301 as containing Procedure and Administrative Regulations. 

                                  Regardless of where they are found, regulations must cite an authority.  If that authority is not a section of the USC (in addition to 26 USC 7805 in the case of 26 CFR) or a Statute at Large then that regulation is not a substantive or legislative regulation and does not have the force of law.  Treasury directives will not substitute for an actual law passed by Congress as authority for a substantive regulation.

                                          

                                  A court that enforces an interpretive regulation as if it has the force of law is wrong.  That does not mean it cannot happen.  Courts are wrong all the time.  The problem is in determining which courts are wrong.  Sometimes a lower court is right but an appeals court reverses, in which case the appeals court is wrong.  In other cases the lower court is wrong and the appeals court reverses, and the appeals court is right.  Sometimes the appeals court agrees with the lower court and both are right.  Sometimes both are wrong.  The Supreme Court has created a way to dodge its responsibilities by using certiorari as a shield against having to deal with a hot potato subject, usually one involving a case in which the government is a party and a constitutional issue is involved in which the government has taken a position contrary to earlier solid Supreme Court rulings.  Rather than get into the tall weeds and rule against the government and thus kill some sacred cow (such as income tax administration?) or overturn a century of correct rulings, the big dudes in black dresses just deny certiorari.  Thus the game is played and the sacred cow is preserved.

                                  ==============================================                           






                                                                


                                  On Mon, Nov 29, 2010 at 11:47 PM, Jake <jake_28079@...> wrote:
                                   

                                     > Not all regulations have the force of law.  Only substantive (or legislative) regulations do. No regulation in Part 301 of Title 26 CFR has the force of law.


                                  The U.S. courts of appeals don't agree & regarding Part 301 in particular (Procedure & Administration), have applied the regulations since the statute doesn't say how it is to be applied. A perfect example being 26 U.S.C. & 26 CFR 301.6302-1 (emphasis added):


                                • Patrick McKEE
                                  Bob Gregory said that 26 CFR Part 31 deals only with Employment Taxes and Collection of Taxes at the Source. It does not relate in any way to Income Tax
                                  Message 18 of 22 , Dec 1, 2010
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                                    Bob Gregory said that “ 26 CFR Part 31 deals only with Employment Taxes and Collection of Taxes at the Source.  It does not relate in any way to Income Tax considered in the ordinary sense.” I strongly DISAGREE.

                                     

                                    CHAPTER 24 is entitled COLLECTION OF INCOME TAX AT SOURCE ON WAGES.  It does NOT impose ANY TAX & the TAX required to be DEDUCTED & WITHHELD is for LIABILITY FOR INCOME TAX IMPOSED UNDER SUBTITLE A.

                                     

                                    The REGULATIONS for CHAPTER 24 are contained in 26 CFR Part 31 & 26 CFR 31.6001 specifically gives the DISTRICT DIRECTOR the AUTHORITY to give NOTICE to people & thereby REQUIRE them to “to make such returns, render such statements, or keep such specific records as will enable the district director” to make a DETIRMINATION whether or not they are “liable for any of the taxes to which the regulations in this part have application.”

                                     

                                    WHY would I care about the DEFINITIONS of “wages” & “employee” IF I am NOT an INDIVIDUAL for whom WITHHOLDING is REQUIRED since the WITHHOLDING provisions are for INCOME TAX LIABILITY?

                                     

                                    Patrick in California

                                     

                                    Founder, ALLIANCE for PEACE & PROSPERITY

                                    http://groups.yahoo.com/group/alliancepeaceprosperity/

                                     

                                    "It ain't what ya don't know that hurts ya. What really puts a hurtin' on ya is what ya knows for sure, that just ain't so." -- Uncle Remus

                                  • BOB GREGORY
                                    *Titles in the USC have no legal meaning and are even often misleading (and apparently intentionally so in some cases). Withholding taxes are NOT income taxes
                                    Message 19 of 22 , Dec 2, 2010
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                                      Titles in the USC have no legal meaning and are even often misleading (and apparently intentionally  so in
                                      some cases). 

                                      Withholding taxes are NOT income taxes but are collected as deposits against the assumed tax liability of the worker from whom they are withheld.  The actual wording of the law is:   

                                      Except as otherwise provided in this section, every employer
                                      making payment of wages shall deduct and withhold upon such wages
                                       a tax determined in accordance with tables or computational
                                       procedures prescribed by the Secretary.


                                        That assumption is based on the completion of a W4 by the worker.  There is no statutory requirement for completing the W4 unless the worker had a liability the previous year.  But businesses which hire people have been misled into believing that they are "employers" and that the people who work for them are "employees."  After the W4 is completed and the worker earns money, the business produces the information return known as a W2 which shows that the worker is an "employee" and that he or she has been paid "wages." 

                                      The "employer" is made liable for paying the taxes withheld (which have no specific name other than Payroll Taxes that I have spotted in Title 26)[26 USC 3403][also 26 USC 1461 for non-resident aliens and foreign corporations].  You can go to uscode.house.gov and search all of Title 26 or just Subtitle A for the words "liable" and "liability" to see where they appear and how they are applied.

                                      Please remember that the district director who has authority to give notice to people and require them to make returns DOES NOT EXIST and has not existed since 2001.  Does anyone really believe that over a period of nearly ten years the Secretary of the Treasury and his vast Treasury Department just overlooked or just have not had time to change all those regulations which make district directors responsible for such things?  Almost all of the dire sounding requirements for canvassing and collecting are in Subtitle F of Title 26. So even if there were directors, the requirements laid on them do not necessarily apply the the tax in Subtitle A.  Subtitle F. contains sections of the code which relate to the procedure and administration of ALL taxes in the code, including alcohol, tobacco, firearms, motor fuels, explosives, bows and arrows, etc.  The code has been mixed up and weasel-worded so that it is virtually impossible to distinguish among the sections according to which taxes they apply to.  That is no accident.  The fact that some of these provisions of law existed before the income tax and before the United States Code is a clue that they were not intended to be applied to income taxes.  This can be determined with some difficulty by looking at the notes on sources and amendments linked in the right sidebar for each code section on the Cornell LII site.  Some, however, do say that they apply to "any tax under this code" or words to that effect.

                                      =========================== 

                                                              


                                      On Wed, Dec 1, 2010 at 11:02 PM, Patrick McKEE <paradoxmagnus@...> wrote:
                                       

                                      Bob Gregory said that “ 26 CFR Part 31 deals only with Employment Taxes and Collection of Taxes at the Source.  It does not relate in any way to Income Tax considered in the ordinary sense.” I strongly DISAGREE.

                                       

                                      CHAPTER 24 is entitled COLLECTION OF INCOME TAX AT SOURCE ON WAGES.  It does NOT impose ANY TAX & the TAX required to be DEDUCTED & WITHHELD is for LIABILITY FOR INCOME TAX IMPOSED UNDER SUBTITLE A.

                                       



                                    • JcP
                                      TITLE 26 Subtitle F CHAPTER 80 Subchapter A § 7806 Construction of title it says: (a) Cross references The cross references in this title to other
                                      Message 20 of 22 , Dec 2, 2010
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                                        TITLE 26  Subtitle F  CHAPTER 80  Subchapter A  § 7806 Construction of title it says:

                                        (a) Cross references

                                        The cross references in this title to other portions of the title, or other provisions of law, where the word "see" is used, are made only for convenience, and shall be given no legal effect.

                                        (b) Arrangement and classification

                                        No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title, nor shall any table of contents, table of cross references, or similar outline, analysis, or descriptive matter relating to the contents of this title be given any legal effect. The preceding sentence also applies to the sidenotes and ancillary tables contained in the various prints of this Act before its enactment into law.

                                         

                                        Paragraph (a) proves what the subject matter is. (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE.

                                      • Jake
                                           Paragraph . . . (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE. It says no such thing - Legal effect and legal
                                        Message 21 of 22 , Dec 2, 2010
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                                             > Paragraph . . . (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE.
                                          It says no such thing - Legal effect" and "legal reference" do NOT mean the same thing. 
                                           
                                          Using a cite from 26 U.S.C. or 26 CFR just tells you where you can find the statute or the regulation cited, but a 26 U.S.C. citation isn't actually the Public Law or Statute @ Large & a 26 CFR isn't actually the Treasury Regulation, so neither cite has "legal effect".  And when people say that Title 26 is not "positive law" they're right, because Congress has not passed the Title as a whole (many others they have).
                                           
                                          But that does NOT mean that you cannot use the citations for "legal reference" & of course it's done every day - because it's just a  lot quicker & easier than stating the full Pub.L. / Stat. or T.R. & if anyone involved in the case wants to look up the actual statute or regulation, they can easily do so using the U.S.C. or CFR citation for refenece.  And they will find that the wording in the original Stat. / Reg. & the version in the U.S.C. / CFR is identical, although the format will be different.
                                           
                                          ~ ~ ~

                                          --- On Thu, 12/2/10, JcP <jcpes1@...> wrote:

                                          From: JcP <jcpes1@...>
                                          Subject: [tips_and_tricks] Re: IRS Substitute For Return authority
                                          To: tips_and_tricks@yahoogroups.com
                                          Date: Thursday, December 2, 2010, 11:30 AM

                                           

                                          TITLE 26  Subtitle F  CHAPTER 80  Subchapter A  § 7806 Construction of title it says:

                                          (a) Cross references

                                          The cross references in this title to other portions of the title, or other provisions of law, where the word "see" is used, are made only for convenience, and shall be given no legal effect.

                                          (b) Arrangement and classification

                                          No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title, nor shall any table of contents, table of cross references, or similar outline, analysis, or descriptive matter relating to the contents of this title be given any legal effect. The preceding sentence also applies to the sidenotes and ancillary tables contained in the various prints of this Act before its enactment into law.

                                           

                                          Paragraph (a) proves what the subject matter is. (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE.


                                        • BOB GREGORY
                                          *I believe what JcP meant to say was that no titles, chapter headings or section headings can be used for legal reference because they are not parts of the law
                                          Message 22 of 22 , Dec 2, 2010
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                                            I believe what JcP meant to say was that no titles, chapter headings or section headings can be used for legal reference because they are not parts of the law but merely indications of what is in the particular chapter or section (and even then can be misleading).  Even the code section number is not part of the law though it is used for reference. 

                                            And what some codifier decided to CALL a chapter or section or where he decided to PUT a section within the title has no legal implication whatever.  There are cases (very clearly pointed out in Larken Rose's monumental work on 861) where clearly related sections are placed hundreds of pages apart, apparently only for the purpose of making them difficult to find and to relate to each other.


                                            Of course Title 26 can be cited because it is prima facie evidence of the law.  However, on rare occasion the wording in the statute is NOT exactly the same as in the code.  That is why the law provides that the Statutes prevail in court when a code title has not been made positive law.


                                            On Thu, Dec 2, 2010 at 12:11 PM, Jake <jake_28079@...> wrote:
                                             

                                               > Paragraph . . . (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE.
                                            It says no such thing - Legal effect" and "legal reference" do NOT mean the same thing. 
                                             

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