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Pablo wants Hendrickson released on § 7343

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  • dave
    FYI news…. From: Pablo Rodriguez Subject: Re: Mr.
    Message 1 of 1 , Mar 7 7:40 AM

      FYI news….

       


      From: Pablo Rodriguez <pablo.rodriguez@...>
      Subject: Re: Mr. Hendrickson is NOT the person in § 7343!



      I am trying to get Mr. Hendrickson out of prison.

      The first thing we have to do is show that the indictment was flawed from the beginning because Mr. Hendrickson was not fairly advised of all the elements that he was to defend against. Next, this is absolutely grounds for incompetent counsel because even he (she?) didn't bring this up in Mr. Hendrickson's defense. There were no jury instructions showing all the factual elements of § 7343 that were required to be met. Mr. Hendrickson was railroaded into prison without a just and fair hearing. He has grounds for a habeas corpus, which should be written immediately.

      My points in the previous e-mails and discussions are:

      1. There are factual elements of § 7343:
        1. Individual;
        1. Duty; and
        1. Duty attached to a position within a corporation or connected with a corporation.
      1. The DOJ never asserted any of these factual elements in their indictment
      1. Mr. Hendrickson argued "includes and including" (7701(c)) which is a fatally flawed argument because the courts ruled, in the case of § 6671(b) and § 7343 that "officer or employee of a corporation or member of a partnership" really means any individual.
      1. The courts disagreed with Mr. Hendrickson's statutory construction of "includes and including." While very well written (his best effort to-date, in my opinion), he missed the other two factual elements present in "Person."
      1. Mr. Hendrickson never argued that as an individual, he did not have a duty attached to his position within a corporation or that he did not have duty connected with a corporation so as to be responsible for the performance of the act in respect of which the violation occurs.
      1. He didn't argue that merely being an officer or employee of a corporation is insufficient to establish duty and that not every officer or employee of a corporation is under a duty to be responsible for the performance of the act in respect of which the violation occurs.
      1. The term "person" must be interpreted consistently across the statutes [and within the statutes, too].
      1. The indictment is fatally flawed because it fails to give notice to Mr. Hendrickson all the factual elements of which he is being charged because it fails to put the defendants on notice as to the charges they were to defend against. Thus, the indictment was defective and on that basis,
        must be dismissed.

      What is absolutely key here is that even though the court's have ruled about "includes and including" seeming to be entirely expansive without limit, they never once mention the other factual elements required to be the "person" in cases involving individuals apart from a corporation. If Mr. Hendrickson will let the courts "have their way" that "includes and including" means any individual, the courts and the DOJ are still bound to prove the other two factual elements of "person," which they never did nor did they even assert. While the DOJ and the courts ruled that Mr. Hendrickson was an individual (factual element 1 of 3), they never got to the other two elements.

      The beauty of what I'm proposing is that even if the courts have ruled that "includes and including" in the context of § 7343 means an individual, we can use that to our advantage. That's why I proposed re-writing the "person" definitions found in 6671(b) and 7343 to clarify how the courts have ruled:

      The term "person" is an individual who has a duty attached to his position within a corporation or has a duty connected with a corporation such that he is responsible for the performance of the act in respect of which the violation occurs.


      Putting these together, one can only conclude that Mr. Hendrickson is not the "person" in § 7343. Further, a writ of habeas corpus is entirely appropriate in this circumstance. Not only that, others who have been unjustly accused of tax crimes most likely need to have writs of habeas corpus written for them, too.

      Would you be willing to form a virtual team to investigate the indictments of others and see if the indictments fail to mention the factual elements of "person" in § 7343? Would you be willing to help write writs of habeas corpus to free them, too?

      A Side Note
      While I absolutely disagree with Mr. Hendrickson's administrative remedy (using Forms 4852), this is a mild disagreement which an open healthy debate can put to rest. I am certainly open to hearing that I'm wrong, which is one of the reasons I published my original e-mail to Bob Hurt and which was posted on Bob Hurt's Lawmen Google group. I want to encourage an honest, open, fair "hearing" of what I've uncovered to find the fatal flaws or fine-tune the argument and make it even better. Unfortunately, many have closed their eyes or ears to our work (don't listen to the message because of who the messenger is) in understanding the court's decisions (as bad as they are) and use that as a weapon to beat them over the head with.

      Frivolous Penalties
      By the way, if one is not a "person" within the meaning of § 6671(b), then he cannot be assessed a frivolous tax submission penalty! Has anyone considered that?

      But being put into prison, having his rights stripped without due process, justice, or even the most minimum modicum of fairness is an egregious violation of all that makes us human.


      Regards,


      Pablo Rodriguez

      Tax Return Team - where pro se prey become the predator!

      +1 919.647.4768

      M-T-Th, 9-11 p.m., Eastern

      Skype - TaxReturnTeam





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