Robert A. McNeil v US Gov & Internal Revenue Service

United States of America

Petitioner

V

Robert A. McNeil Pro Se Respondent

U.S. District Court Southern District Houston, Texas April 24, 2008

Civil Case No.

08-MC-84

Exhibits

R-01 thru R-42

Appendix to Exhibits

Exhibit No. Date Description

No. Pages

R-01 07/25/05 2002 IRS Proposed Individual Income Tax Assessment

23

R-02 08/25/05 2002 RAM Administrative Notice of Debt Not Owed

16

R-03 10/17/05 2002 IRS Notice of Deficiency

27

R-04 01/13/06 2002 RAM Petition for Redetermination to US Tax Court

6

R-05 01/21/06 2002 RAM Claim for Damages and Demand for Payment

10

R-06 05/04/06 2002 IRS Letter from Scott Prentky Ogden Utah Field Director

8

R-07 06/26/06 2002 US Tax Court Notice Setting Case For Trial

6

R-08 07/06/06 2002 IRS Letter from Office of Chief Counsel Houston

8

R-09 07/26/06 2002 RAM Stipulations for Trial v1 - W Lance Stodghill

32

R-10 09/06/06 2002 IRS Letter from W Lance Stodghill Revised Stipulation of Facts

35

R-11 09/18/06 2002 RAM Letter to W Lance Stodghill Declining to Sign Stipulation of Facts

5

R-12 10/06/06 2002 RAM Motion to Dismiss Sent to Judge Mark V Holmes

9



No. Pages

R-13 10/20/06 2002 US Tax Court Order Denying Motion to Dismiss

2

R-14 11/01/06 2002 US Tax Court Order of Dismissal and Decision

3

R-15 02/09/07 IRS Roger Caris Letter - First Contact

2

R-16 03/06/07 2002 IRS Notice of Tax Due on Federal Tax Return

10

R-17 03/16/07 RAM Reply to IRS Letter of 20070209

10

R-18 06/01/07 2002 IRS Notice of Federal Tax Liens

30

R-19 07/06/07 2002 IRS Notice of Levy to Wells Fargo Bank

1

R-20 07/24/07 2003-2006 IRS 1099 Data UNREDACTED

8

R-21 07/25/07 2003-2006 IRS Summons for Tax Returns

40

R-22 08/09/07 2003-2006 RAM 1st Response to Summons

25

R-23 08/16/07 2003-2006 DOJ R Scott Shieldes Enforcement of Summons

4

R-24 09/13/07 2003-2006 REDACTED RAM 2nd Response to Summons

79

R-25 09/14/07 2002 IRS Notice of Levy

2



No. Pages

R-26 09/17/07 2002 IRS Summons for Tax Information

9

R-27 10/05/07 2002 RAM 1st Response to Summons for Information

35

R-28 10/18/07 2002 DOJ R Scott Shieldes Enforcement of Summons

4

R-29 10/24/07 2002 RAM Constructive Notice of Fraud to DOJ and IRS

32

R-30 10/26/07 2002 RAM 2nd Response to Summons

16

R-31 10/26/07 Dole v Steelworkers 494 US 26 1990

17

R-32 10/26/07 USA v Jimmy Chisum No 06-7082

15

R-33 11/16/07 2002 IRS Notice of Levy 3

R-34 03/05/08 US District Court Order to Show Cause

4

R-35 03/29/08 IRS Petition to Enforce Summonses

13

Audio Files

Minutes

R-36 08/21/06 Robert A McNeil Audio from IRS Meeting

20:27


13:20


7:45



No. Pages


6:23

Additional Exhibit

R-40 04/14/08 Fax from M. Kathryn Bellis ~ Copy of Original signed Petition

12

R-41 04/07/08 RAM Fax Request to U.S.Clerk for Copy of Electronically Filed Petition

4

R-42 04/11/08 U.S. Clerk – Copy of Electronically Filed Petition

3

EXHIBIT

R-01

R. A. McNeil Case: 08-MC-84 Exhibit R-01 Page 1 of 23























EXHIBIT

R-02

R. A. McNeil Case: 08-MC-84Exhibit R-02 Page 1 of 16
















EXHIBIT

R-03




























EXHIBIT

R-04







EXHIBIT

R-05











EXHIBIT

R-06









EXHIBIT

R-07







EXHIBIT

R-08









EXHIBIT

R-09





Page 1 of 28

UNITED STATES TAX COURTWashington, D.C. 20217

Robert Allen McNeil ))

Pro Se Plaintiff, ))

v. ) Docket No.: 1541-06)

COMMISSIONER OF INTERNAL REVENUE ))

Respondent. )___________________________________)

STIPULATIONS FOR TRIAL v1

(Circle)

v1-01 Respondent stipulates that he/she is acompetent individual.

Yes No

v1-02 Respondent stipulates that he/she is afiduciary to the public as stated in thefollowing case.

Yes No

McNally v. U.S., 483 U.S. 350, 371-372 (1987),Quoting U.S. v Holzer, 816 F.2d. 304, 307:“Fraud in its elementary common law sense ofdeceit and this is one of the meanings thatfraud bears in the statute, see United Statesv Dial, 757 F.2d 163, 168 (7th Cir. 1985) -includes the deliberate concealment ofmaterial information in a setting of fiduciaryobligation. A public official is a fiduciarytoward the public, including, in the case of ajudge, the litigants who appear before him,and if he deliberately conceals materialinformation from them he is guilty of fraud.When a judge is busily soliciting loans fromcounsel to one party, and not telling theopposing counsel (let alone the public), he isconcealing material information in violationof his fiduciary obligations.”

v1-03 Respondent stipulates that he/she is awarethat he/she is obligated by law to make knownmaterial information to the general publicwhen asked.

Yes No


Page 2 of 28

v1-04 Respondent stipulates that he/she is aware ofthe issues of fraud that are present in anyfiduciary setting.

Yes No

v1-05 Respondent stipulates that he/she is aware ofthe general definition of fraud.

Yes No

Fraud: Deceit, deception, artifice, ortrickery operating prejudicially on the rightsof another, and so intended, by inducing himto part with property or surrender some legalright. 23 Am J2d Fraud § 2. Anythingcalculated to deceive another to his prejudiceand accomplishing the purpose, whether it bean act, a word, silence, the suppression ofthe truth, or other device contrary to theplain rules of common honesty. 23 Am J2d Fraud§ 2. An affirmation of a fact rather than apromise or statement of intent to do somethingin the future. Miller v Sutliff, 241 111 521,89 NE 651.

v1-06 Respondent stipulates that he/she has read andunderstands the Supreme Court rulings thatapply to the definition of the word “income”and the use of the word in the 16th Amendment.

Yes No

v1-07 Respondent stipulates that he/she is awarethat lower courts do not have the power tooverturn Supreme Court rulings.

Yes No

v1-08 Respondent stipulates that he/she is awarethat unpublished decisions may not be used incases as precedence law.

Yes No

v1-09 In light of the following Supreme Courtrulings, Respondent stipulates that there wasno new taxing power provided to the federalgovernment by the 16th Amendment.

Yes No

BRUSHABER v UNION PACIFIC R. CO., 240 US 1, 12(1916): “… the contentions under it (the 16thAmendment), if acceded to, would cause oneprovision of the Constitution to destroyanother; that is, they would result inbringing the provisions of the Amendmentexempting a direct tax from apportionment intoirreconcilable conflict with the generalrequirement that all direct taxes beapportioned. … This result, instead of


Page 3 of 28

simplifying the situation and making clear thelimitations on the taxing power … would createradical and destructive changes in ourconstitutional system and multiply confusion.”

EVANS v GORE, 253 US 245, 263 (1920): “Doesthe Sixteenth Amendment authorize and supportthis tax and the attendant diminution; that isto say, does it bring within the taxing powerssubjects theretofore excepted? The court belowanswered in the negative; and counsel for thegovernment say: ‘It is not, in view of recentdecisions, contended that this amendmentrendered anything taxable as income that wasnot so taxable before’.”

v1-10 Respondent stipulates that he/she agrees withthe government’s statement in EVANS v GOREthat “It is not, in view of recent decisions,contended that this amendment renderedanything taxable as income that was not sotaxable before.”

Yes No

v1-11 Respondent stipulates that the above tworulings in BRUSHABER v UNION PACIFIC R. CO.and EVANS v GORE were made in accordance withthe definition of “income” in itsconstitutional sense.

Yes No

v1-12 Respondent stipulates that he/she agrees withthe ruling in BOWERS v KERBAUGH-EMPIRE CO.that, relative to the 16th Amendment, “It wasnot the purpose or effect of that amendment tobring any new subject within the taxingpower.”

Yes No

BOWERS v KERBAUGH-EMPIRE CO., 271 U.S. 170,174 (1926): “The Sixteenth Amendment declaresthat Congress shall have power to levy andcollect taxes on income, 'from whatever sourcederived' without apportionment among theseveral states, and without regard to anycensus or enumeration. It was not the purposeor effect of that amendment to bring any newsubject within the taxing power.”

v1-13 Respondent stipulates that the meaning of theword “income” was settled by the followingdecisions of the Supreme Court, and ruled asonly applicable to excise tax.

Yes No


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STANTON v BALTIC MINING CO., 240 US 103, 112-114 (1916): “Not being within the authorityof the 16th Amendment, the tax is therefore,within the ruling of Pollock… a direct tax andvoid for want of compliance with theregulation of apportionment.” “…it manifestlydisregards the fact that by the previousruling it was settled that the provisions ofthe 16th Amendment conferred no new power oftaxation..”

BRUSHABER v UNION PACIFIC R. CO., 240 US 1,11-12 (1916): “…the confusion is notinherent, but rather arises from theconclusion that the 16th Amendment providesfor a hitherto unknown power of taxation; thatis, a power to levy an income tax which,although direct, should not be subject to theregulation of apportionment applicable to allother direct taxes. And the far-reachingeffect of this erroneous assumption will bemade clear by generalizing the manycontentions advanced in argument to supportit…” “…the whole purpose of the Amendment wasto relieve all income taxes when imposed fromapportionment from a consideration of thesource…” “…on the contrary shows that it wasdrawn with the object of maintaining thelimitations of the Constitution andharmonizing their operation.”

TAFT v BOWERS, 278 U.S. 470, 481 (1929):“Under former decisions here the settleddoctrine is that the Sixteenth Amendmentconfers no power upon Congress to define andtax as income without apportionment somethingwhich theretofore could not have been properlyregarded as income.”

PECK v LOWE, 247 US 165, 172 (1918): “Aspointed out in recent decisions, it does notextend the taxing power to new or exceptedsubjects…”

EISNER v MACOMBER, 252 US 189, 205-207 (1920):“The 16th Amendment must be construed inconnection with the taxing clauses of theoriginal Constitution and the effectattributed to them before the amendment was


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adopted.” “As repeatedly held, this did notextend the taxing power to new subjects…”

MERCHANTS’ LOAN & TRUST CO. v SMIETANKA, 255US 509, 519 (1921): “It is obvious that thesedecisions in principle rule the case at bar ifthe word ‘income’ has the same meaning in theIncome Tax Act of 1913 that it had in theCorporation Excise Tax Act of 1909, and thatit has the same scope of meaning was in effectdecided in Southern Pacific v Lowe…, where itwas assumed for the purpose of decision thatthere was no difference in its meaning as usedin the act of 1909 and in the Income Tax Actof 1913. There can be no doubt that the wordmust be given the same meaning and content inthe Income Tax Acts of 1916 and 1917 that ithad in the act of 1913. When we add to this,Eisner v Macomber…the definition of ‘income’which was applied was adopted from Stratton’sIndependence v Howbert, supra, arising underthe Corporation Excise Tax Act of 1909… therewould seem to be no room to doubt that theword must be given the same meaning in all theIncome Tax Acts of Congress that was given toit in the Corporation Excise Tax Act, and thatwhat that meaning is has now become definitelysettled by decisions of this Court.”

v1-14 In light of the above rulings, Respondentstipulates that there were no new subjectsbrought under the taxing powers of the federalgovernment by the 16th Amendment.

Yes No

v1-15 In light of the above rulings, Respondentstipulates that the same taxing powers of thefederal government existed after the passageof 16th Amendment as existed before thepassage of the 16th Amendment.

Yes No

v1-16 In light of the above rulings, Respondentstipulates that the 16th Amendment did noteliminate the requirement of “apportionment”for direct taxes in the Constitution.

Yes No

U. S. Constitution Article 1, Sec. 2,“Representatives and direct taxes shall beapportioned among the several States which maybe included in this union, according to theirrespective Numbers…” and also in Article 1,


Page 6 of 28

Sec. 9, “No Capitation, or other direct, Taxshall be laid, unless in proportion to theCensus or Enumeration herein before directedto be taken.”

v1-17 Respondent stipulates that the U. S.Constitution contains a prohibition againstdirect, un-apportioned taxes.

Yes No

v1-18 In light of the above rulings, Respondentstipulates that the literature put out by theIRS is false and/or misleading in claimingthat the 16th Amendment authorized a taxingpower on every citizen.

Yes No

v1-19 In light of the above rulings, Respondentstipulates that the 16th Amendment authorizedno new taxing powers.

Yes No

v1-20 Respondent stipulates that he/she is aware ofthe ruling of Pollock v Farmers’ Loan andTrust Co., 157 US 429, 582 (1895), whichstated the original intent of the Founders inthe Constitution.

Yes No

Pollock v Farmers’ Loan and Trust Co., 157 US429, 582 (1895), “Nothing can be clearer thanthat what the constitution intended to guardagainst was the exercise by the generalgovernment of the power of directly taxingpersons and property within any state througha majority made up from the other states.”

v1-21 Respondent stipulates that the original intentof the Founders (as cited in the aboveparagraph), has not been overturned orabrogated by the 16th Amendment or any otherauthority.

Yes No

v1-22 Respondent stipulates that the work of thelaborer (the laborer’s most sacred property)could not be hindered or encroached uponbefore the passage of the 16th Amendment.

Yes No

Butcher's Union Co. v Crescent City Co., 111US 746, 757 (1884), “The patrimony of the poorman lies in the strength and dexterity of hisown hands, and to hinder his employing thisstrength and dexterity in what manner hethinks proper, without injury to his neighbor,is a plain violation of this most sacred


Page 7 of 28

property. It is a manifest encroachment uponthe just liberty both of the workman and ofthose who might be disposed to employ him.”

v1-23 Respondent stipulates that after the passageof the 16th Amendment, the right to conduct alawful business or vocation and therebyacquire profits, is the property of thebusiness.

Yes No

COPPAGE v STATE OF KANSAS, 236 U.S. 1, 23 -24(1915), “The court held it unconstitutional,saying: 'The right to follow any lawfulvocation and to make contracts is ascompletely within the protection of theConstitution as the right to hold propertyfree from unwarranted seizure, or the libertyto go when and where one will. One of the waysof obtaining property is by contract. Theright, therefore, to contract cannot beinfringed by the legislature without violatingthe letter and spirit of the Constitution.Every citizen is protected in his right towork where and for whom he will. He may selectnot only his employer, but also hisassociates.”

TRUAX v CORRIGAN, 257 U.S. 312, 348 (1921),“That the right to conduct a lawful business,and thereby acquire pecuniary profits, isproperty, is indisputable.”

v1-24 Respondent stipulates that it is a right ofevery citizen or business to conduct businesswithout let or hindrance, and the 16thAmendment did not change that.

Yes No

v1-25 Respondent stipulates that the right to followany lawful vocation and to make contracts iscompletely within the protection of theConstitution, and that the 16th Amendment didnot change that.

Yes No

v1-26 Respondent stipulates that, “The right,therefore, to contract cannot be infringed bythe legislature without violating the letterand spirit of the Constitution.”, as stated inCOPPAGE v STATE OF KANSAS.

Yes No

v1-27 Respondent stipulates that the hindrance of Yes No


Page 8 of 28

any person in his lawful trade or business wasdeclared void before the passage of the 16thAmendment, and the 16th Amendment did notchange that.Butcher's Union Co. v. Crescent City Co., 111US 746, 756 (1884). “… using of anythingwhereby any person or persons, bodies politicor corporate, are sought to be restrained ofany freedom or liberty they had before orhindered in their lawful trade,' All grants ofthis kind are void at common law, because theydestroy the freedom of trade, discourage laborand industry, restrain persons from getting anhonest livelihood, and put it in the power ofthe grantees to enhance the price ofcommodities. They are void because theyinterfere with the liberty of the individualto pursue a lawful trade or employment.”

v1-28 Respondent stipulates that, with the 1923Supreme Court ruling in MEYER v. STATE OFNEBRASKA, 10 years after the 16th Amendmentwas passed, the right of the individual tocontract, to engage in any of the commonoccupations of life is guaranteed by theConstitution.

Yes No

MEYER v. STATE OF NEBRASKA, 262 U.S. 390, 399(1923): “While this court has not attempted todefine with exactness the liberty thusguaranteed, the term has received muchconsideration and some of the included thingshave been definitely stated. Without doubt, itdenotes not merely freedom from bodilyrestraint but also the right of the individualto contract, to engage in any of the commonoccupations of life, to acquire usefulknowledge, to marry, establish a home andbring up children, to worship God according tothe dictates of his own conscience, andgenerally to enjoy those privileges longrecognized at common law as essential to theorderly pursuit of happiness by free men.”

v1-29 Respondent stipulates that an individual hasthe freedom and the right to contract andengage in the common occupations of life, andthat a state may not impose a charge for suchrights.

Yes No

MURDOCK v. COMMONWEALTH OF PENNSYLVANIA, 319


Page 9 of 28

US 105, at 113; 63 S Ct at 875; 87 L Ed at1298 (1943). “A state may not impose a chargefor the enjoyment of a right granted by theFederal Constitution.”

v1-30 Respondent stipulates that MEYER v. STATE OFNEBRASKA, 10 years after the passage of the16th Amendment, cited all the following casesas precedence to support its ruling:

Yes No

MEYER v. STATE OF NEBRASKA, 262 U.S. 390, 399(1923): Slaughter-House Cases, 16 Wall. 36;

Butchers' Union Co. v. Crescent City Co ., 111U.S. 746 , 4 Sup. Ct. 652; Yick Wo v. Hopkins,118 U.S. 356 , 6 Sup. Ct. 1064; Minnesota v.Bar er, 136 U.S. 313 , 10 Sup. Ct. 862;Allegeyer v. Louisiana, 165 U.S. 578 , 17 Sup.Ct. 427; Lochner v. New York, 198 U.S. 45 , 25Sup. Ct. 539, 3 Ann. Cas. 1133; Twining v. NewJersey 211 U.S. 78 , 29 Sup. Ct. 14; Chicago,B. & Q. R. R. v. McGuire, 219 U.S. 549 , 31Sup. Ct. 259; Truax v. Raich, 239 U.S. 33 , 36Sup. Ct. 7, L. R. A. 1916D, 545, Ann. Cas.1917B, 283; Adams v. Tanner, 224 U.S. 590 , 37Sup. Ct. 662, L. R. A. 1917F, 1163, Ann. Cas.1917D, 973; New York Life Ins. Co. v. Dodge,246 U.S. 357 , 38 Sup. Ct. 337, Ann. Cas.1918E, 593; Truax v. Corrigan, 257 U.S. 312 ,42 Sup. Ct. 124; Adkins v. Children's Hospital(April 9, 1923), 261 U.S. 525 , 43 Sup. Ct.394, 67 L. Ed. --; Wyeth v. Cambridge Board ofHealth, 200 Mass. 474, 86 N. E. 925, 128 Am.St. Rep. 439, 23 L. R. A. (N. S.) 147.”

v1-31 Respondent stipulates that the Constitutionmust be interpreted in the light of the commonlaw, the principles and history of which werefamiliarly known to the framers of theConstitution.

Yes No

“The constitution nowhere defines the meaningof these words, either by way of inclusion orof exclusion, except in so far as this is doneby the affirmative declaration that 'allpersons born or naturalized in the UnitedStates, and subject to the jurisdictionthereof, are citizens of the United States.'Amend. art. 14. In this, as in other respects,it must be interpreted in the light of thecommon law, the principles and history ofwhich were familiarly known to the framers of


Page 10 of 28

the constitution.” Minor v. Happersett, 21Wall. 162; Ex parte Wilson, 114 U.S. 417, 422, 5 S. Sup. Ct. 935; Boyd v. U. S., 116 U.S.616, 624 , 625 S., 6 Sup. Ct. 524; Smith v.Alabama, 124 U.S. 465 , 8 Sup. Ct. 564. “Thelanguage of the constitution, as has been wellsaid, could not be understood withoutreference to the common law.” 1 Kent, Comm.336; Bradley, J., in Moore v. U. S., 91 U.S.270 , 274. [169 U.S. 649, 655], U.S. v. WongKim Ark, 169 U.S. 649, 654 (1898).

Respondent stipulates to the truthfulness ofthe following law cites:

v1-32 Taxation Key, West 53 – “The legislaturecannot name something to be a taxableprivilege unless it is first a privilege.”

Yes No

v1-33 Taxation Key, West 933 – “The Right to receiveincome or earnings is a right belonging toevery person and realization and receipts ofincome is therefore not a "privilege that canbe taxed".

Yes No

v1-34 Respondent stipulates to the Code of FederalRegulations definitions of direct and indirecttaxes in 19 CFR 351.102.

Yes No

Direct tax: ``Direct tax'' means a tax onwages, profits, interests, rents, royalties,and all other forms of income, a tax on theownership of real property, or a socialwelfare charge.Indirect tax: `Ìndirect tax'' means a sales,excise, turnover, value added, franchise,stamp, transfer, inventory, or equipment tax,a border tax, or any other tax other than adirect tax or an import charge. “

v1-35 Respondent stipulates that the definition of“direct taxes” as ruled by Knowlton v Moore,still applies today.

Yes No

Knowlton v Moore, 178 US 41, 47 (1900):"Direct Taxes bear upon persons, uponpossession and the enjoyment of rights".

v1-36 Respondent stipulates to the following ruling,and that such ruling is still applicabletoday.

Yes No

Flint v Stone Tracy, 220 US 107, 151 - 152(1911): “Duties and imposts are terms commonly


Page 11 of 28

applied to levies made by governments on theimportation or exportation of commodities.Excises are 'taxes laid upon the manufacture,sale, or consumption of commodities within thecountry, upon licenses to pursue certainoccupations, and upon corporate privileges.'Cooley, Const. Lim. 7th ed. 680.”

v1-37 Respondent stipulates that he/she does notknow of any legal definitions of excise taxesthat would expand the definitions of excisetaxes beyond those in the paragraph above.

Yes No

v1-38 Respondent stipulates that private firms andindividuals do not enjoy the same privilegethat corporations enjoy. (See Flint v StoneTracy below.)

Yes No

v1-39 Respondent stipulates that there is asubstantial difference in the “carrying on ofbusiness” by corporations, which are taxed forthe corporate privilege, and the same“carrying on of business” by an unincorporatedfirm or individual.

Yes No

Flint v Stone Tracy, 220 U.S. 107, 162 (1911).“In the case at bar we have already discussedthe limitations which the Constitution imposesupon the right to levy excise taxes, and itcould not be said, even if the principles ofthe 14th Amendment were applicable to thepresent case, that there is no substantialdifference between the carrying on of businessby the corporations taxed, and the samebusiness when conducted by a private firm orindividual. The thing taxed is not the meredealing in merchandise, in which the actualtransactions may be the same, whetherconducted by individuals or corporations, butthe tax is laid upon the privileges whichexist in conducting business with theadvantages which inhere in the corporatecapacity of those taxed, and which are notenjoyed by private firms or individuals.”

v1-40 Respondent stipulates that he/she is aware ofthe two great classes of taxation (direct andindirect) ruling in Pollock and later affirmedin Brushaber.

Yes No

Pollock, 157 US 429, 556 (1895), “Thus, in the


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matter of taxation, the constitutionrecognizes the two great classes of direct andindirect taxes, and lays down two rules bywhich their imposition must be governed,namely, the rule of apportionment as to directtaxes, and the rule of uniformity as toduties, imposts, and excises.”

Brushaber v Union Pacific R. Co., 240 US 1, 12(1916), “The court, fully recognizing in thepassage which we have previously quoted theall embracing character of the two greatclassifications, including, on the one hand,direct taxes subject to apportionment, and onthe other, excises, duties, and impostssubject to uniformity, held the law to beunconstitutional in substance for thesereasons: Concluding that the classification ofdirect was adopted for the purpose ofrendering it impossible to burden by taxationaccumulations of property, real or personal,except subject to the regulation ofapportionment,…”

v1-41 Respondent stipulates that the two greatclasses of taxation are all embracing and thatthere does not exist any other class oftaxation applicable to constitutional federaltaxing powers.

Yes No

v1-42 Respondent stipulates that all direct taxesstill had to be apportioned after the passageof the 16th Amendment.

Yes No

v1-43 Respondent stipulates that no direct taxeshave been imposed on the general citizenry forat least 90 years.

Yes No

v1-44 Respondent stipulates that the adoption ofclassification of “direct taxes” by theFounders was the original intent of theFounders.

Yes No

v1-45 Respondent stipulates that the purpose of theadoption of the classification of “directtaxes” (original intent) by the Founders wasto render the accumulations of property, i.e.,wages, salaries, and property, impossible totax by the federal government, except by

Yes No


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apportionment.

v1-46 Respondent stipulates that Stratton’s ruledthat property, considered by itself, was nottaxable.

Yes No

Stratton's Independence, Ltd. v. Howbert, 231U.S. 399, 417 (1913): “Evidently Congressadopted the income as the measure of the taxto be imposed with respect to the doing ofbusiness in corporate form because it desiredthat the excise should be imposed,approximately at least, with regard to theamount of benefit presumably derived by suchcorporations from the current operations ofthe government. In Flint v. Stone Tracy Co.220 U.S. 107, 165, 55 S. L. ed. 107, 419, 31Sup. Ct. Rep. 342, Ann. Cas. 1912 B. 1312, itwas held that Congress, in exercising theright to tax a legitimate subject of taxationas a franchise [231 U.S. 399, 417] orprivilege, was not debarred by theConstitution from measuring the taxation bythe total income, although derived in partfrom property which, considered by itself, wasnot taxable.”

v1-47 Respondent stipulates that the 16th Amendmentdid not grant additional federal taxing powersthat would change the “apportionmentprovision” of the Constitution.

Yes No

v1-48 Respondent stipulates that he/she is aware ofthe purpose of the 16th Amendment, as statedin Brushaber.

Yes No

Brushaber v Union Pacific R. Co., 240 US 1,12, 18 (1916): “…the whole purpose of theAmendment was to relieve all income taxes whenimposed from apportionment from aconsideration of the source…”

v1-49 Respondent stipulates that the 1954 HouseDiscussion on Code section 61(a) of the 1954Internal Revenue Code states the following:

Yes No

“This definition is based upon the 16thAmendment and the word ‘income’ is used in itsconstitutional sense.” “This sectioncorresponds to section 22 (a) of the 1939Code.”


Page 14 of 28

v1-50 Respondent stipulates that the 16thAmendment’s use of the word “income” only hassignificance in its constitutional sense.

Yes No

v1-51 Respondent stipulates that the word “income”in the Internal Revenue Code is used in itsconstitutional sense.

Yes No

v1-52 Respondent stipulates that Congress cannotdefine the word “income” and pass suchdefinition into law.

Yes No

Eisner v Macomber, 252 US 189, 205 - 206(1920): “In order, therefore, that the clausescited from article 1 of the Constitution mayhave proper force and effect, save only asmodified by the amendment, and that the latteralso may have proper effect, it becomesessential to distinguish between what is andwhat is not 'income,' as the term is thereused, and to apply the distinction, as casesarise, according to truth and substance,without regard to form. Congress cannot by anydefinition it may adopt conclude the matter,since it cannot by legislation alter theConstitution, from which alone it derives itspower to legislate, and within whoselimitations alone that power can be lawfullyexercised.”

v1-53 Respondent stipulates that there is adistinction between “Gross Income” and “GrossReceipts”.

Yes No

v1-54 Respondent stipulates that “gross income” isdefined as “…‘gross income’ means the totalsales, less the cost of goods sold, plus anyincome from investments and from incidental oroutside operations or sources.”.

Yes No

v1-55 Respondent stipulates that “Gross receipts”are not the foundation for income taxliability.

Yes No

v1-56 Respondent stipulates that the general term“income” is not defined in the InternalRevenue Code.

Yes No

U.S. v. Ballard, 535 F2d 400 (1976): “Grossincome and not ‘gross receipts’ is thefoundation of income tax liability…” At 404,


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“The general term ‘income’ is not defined inthe Internal Revenue Code.” At 404, Ballardfurther ruled that “…‘gross income’ means thetotal sales, less the cost of goods sold, plusany income from investments and fromincidental or outside operations or sources.”

v1-57 Respondent stipulates that, “…‘gross income’means the total sales, less the cost of goodssold, plus any income from investments andfrom incidental or outside operations orsources.” and nothing else.

Yes No

v1-58 Respondent stipulates that he/she is aware ofthe definition of the word “income”, asdefined by the Supreme Court.

Yes No

Merchants’ Loan & Trust Co. v Smietanka, 255US 509, 519 (1921): “The Corporation ExciseTax Act of August 5, 1909, was not an incometax law, but a definition of the word ‘income’was so necessary in its administration…” “Itis obvious that these decisions in principlerule the case at bar if the word ‘income’ hasthe same meaning in the Income Tax Act of 1913that it had in the Corporation Excise Tax Actof 1909, and that it has the same scope ofmeaning was in effect decided in SouthernPacific v Lowe…, where it was assumed for thepurpose of decision that there was nodifference in its meaning as used in the actof 1909 and in the Income Tax Act of 1913.There can be no doubt that the word must begiven the same meaning and content in theIncome Tax Acts of 1916 and 1917 that it hadin the act of 1913. When we add to this,Eisner v Macomber…the definition of ‘income’which was applied was adopted from Stratton’sIndependence v Howbert, supra, arising underthe Corporation Excise Tax Act of 1909… therewould seem to be no room to doubt that theword must be given the same meaning in all theIncome Tax Acts of Congress that was given toit in the Corporation Excise Tax Act, and thatwhat that meaning is has now become definitelysettled by decisions of this Court.”

Doyle v Mitchell Bros. Co., 247 U.S. 179, 183(1918): "An examination of these and otherprovisions of the Act (Corporation Excise Tax


Page 16 of 28

Act of August 5, 1909) make it plain that thelegislative purpose was not to tax property assuch, or the mere conversion of property, butto tax the conduct of the business ofcorporations organized for profit upon thegainful returns from their businessoperations."

Doyle v Mitchell Bros. Co., 247 U.S. 179, 185(1918): “Whatever difficulty there may beabout a precise and scientific definition of'income,' it imports, as used here, somethingentirely distinct from principal or capitaleither as a subject of taxation or as ameasure of the tax; conveying rather the ideaof gain or increase arising from corporateactivities.”

v1-59 Respondent stipulates that all of the incometax acts of Congress must be given the samemeaning as was given to the word “income” thatwas given in the Corporation Excise Tax Act of1909.

Yes No

v1-60 Respondent stipulates that the word “income”used in all the income tax acts have the samemeaning as for an excise tax?

Yes No

v1-61 Respondent stipulates that the “conversion ofproperty” includes the conversion of a man’slabor (his most sacred property) given inexchange for wages or compensation (property).

Yes No

v1-62 Respondent stipulates that income isnecessarily the product of the joint effortsof the state and the recipient.

Yes No

Sims v. Ahrens et al., 271 SW Reporter at 730,“Income is necessarily the product of thejoint efforts of the state and the recipientof the income, the state furnishing theprotection necessary to enable the recipientto produce, receive, and enjoy it, and a taxthereon in the last analysis is simply aportion cut from the income and appropriatedby the state as its share…”

v1-63 Respondent stipulates that the privilege ofincorporation is a benefit bestowed by theState, providing the protections to the

Yes No


Page 17 of 28

recipient of the income.

v1-64 Respondent stipulates that the individual’s“right to live” includes his ability to feedand house himself and those dependent on hisability.

Yes No

Redfield v. Fisher, 135 Or. 180, 292 P. 813,819 (Ore. 1930): "The individual, unlike thecorporation, cannot be taxed for the mereprivilege of existing. The corporation is anartificial entity which owes its existence andcharter powers to the state; but theindividual's rights to live and own propertyare natural rights for the enjoyment of whichan excise cannot be imposed."

v1-65 Respondent stipulates that “The corporation isan artificial entity which owes its existenceand charter powers to the state.” and that itsexistence can be taxed, unlike the existenceof the individual.

Yes No

v1-66 Respondent stipulates that the CorporationExcise Tax Act of 1909 was an excise tax onthe corporation privilege, and not a tax onthe income of the corporation.

Yes No

Stratton’s Independence, Ltd. v Howbert, 231US 399, 414-415, (1913): “As has beenrepeatedly remarked, the corporation tax actof 1909 was not intended to be and is not, inany proper sense, an income tax law. Thiscourt had decided in the Pollock Case that theincome tax law of 1894 amounted in effect to adirect tax upon property, and was invalidbecause not apportioned according topopulations, as prescribed by theConstitution. The act of 1909 avoided thisdifficulty by imposing not an income tax, butan excise tax upon the conduct of business ina corporate capacity, measuring, however, theamount of tax by the income of thecorporation, with certain qualificationsprescribed by the act itself.”

“Moreover, the section imposes ‘..a specialexcise tax with respect to the carrying on ordoing business by such corporation,’ etc…”

“Corporations engaged in such business share


Page 18 of 28

in the benefits of the federal government, andought as reasonably to contribute to thesupport of that government as corporationsthat conduct other kinds of profitablebusiness.”

“… the annual gains of such corporations arecertainly to be taken as income for thepurpose of measuring the amount of the tax.”

Stanton v Baltic Mining Co., 240 US 103, 112-114 (1916): “Not being within the authority ofthe 16th Amendment, the tax is therefore,within the ruling of Pollock… a direct tax andvoid for want of compliance with theregulation of apportionment.”

“…it manifestly disregards the fact that bythe previous ruling it was settled that theprovisions of the 16th Amendment conferred nonew power of taxation..”

“…it was settled in Stratton’s Independence…that such tax is not a tax upon property… buta true excise levied on the result of thebusiness.”

v1-67 Respondent stipulates that the corporateincome tax is a tax on the privilege ofcarrying out business in a corporate capacity.

Yes No

v1-68 Respondent stipulates that the annual gains ofcorporations are only used to measure theamount of tax, but the gains are notthemselves taxed.

Yes No

Doyle v Mitchell Bros., 247 U.S. 179, 183(1918): "An examination of these and otherprovisions of the Act make it plain that thelegislative purpose was not to tax property assuch, or the mere conversion of property, butto tax the conduct of the business ofcorporations organized for profit upon thegainful returns from their businessoperations."

v1-69 Respondent stipulates that even corporationscannot be taxed directly on their earningswithout apportionment, as that would be adirect tax on property.

Yes No


Page 19 of 28

v1-70 Respondent stipulates that the word “income”in its constitutional sense pertains only to again or increase arising from corporateactivities.

Yes No

v1-71 Respondent stipulates that the prohibitionagainst an un-apportioned direct tax is aconstitutional right.

Yes No

Sugarman v. Dougall, 413 U.S. 634, 644 (1973)(quoting Graham v. Richardson, 403 U.S. 365,374 (1971)). “`[T]his Court now has rejectedthe concept that constitutional rights turnupon whether a governmental benefit ischaracterized as a “right” or as a“privilege.”’”

v1-72 Respondent stipulates that the income tax issuch a vague statute (government officialscannot identify the Statute At Large, the CodeSection and the Implementing Regulation), thatit violates the first essential of due processas stated in Connally.

Yes No

Connally v General Construction Co., 269 US385, 391 (1926). "(A) statute which eitherforbids or requires the doing of an act interms so vague that men of common intelligencemust necessarily guess at its meaning anddiffer as to its application, violates thefirst essential of due process of law."

v1-73 Respondent stipulates that USC 7608 is a codesection that pertains to all enforcementauthority of all IRS agents, criminal and non-criminal, and is rendered all-inclusive by theterm “or other internal revenue officer bywhatever term designated”.

Yes No

26 USC Sec. 7608 - Authority of internalrevenue enforcement officers “(a) Enforcementof subtitle E and other laws pertaining toliquor, tobacco, and firearms.” “Anyinvestigator, agent, or other internal revenueofficer by whatever term designated, whom theSecretary charges with the duty of enforcingany of the criminal, seizure, or forfeitureprovisions of subtitle E or of any other lawof the United States pertaining to thecommodities subject to tax under such subtitlefor the enforcement of which the Secretary is


Page 20 of 28

responsible…”

v1-74 Respondent stipulates that “Any investigator,agent, or other internal revenue officer bywhatever term designated” only has enforcementauthority under the provisions of “subtitle Eor of any other law of the United Statespertaining to the commodities subject to tax.”

Yes No

v1-75 Respondent stipulates that citizens working inthe private and public sectors do not have anymatters of dealing with “Any investigator,agent, or other internal revenue officer bywhatever term designated” under the provisionsof “subtitle E or of any other law of theUnited States pertaining to the commoditiessubject to tax” except when purchasingcommodities, and that such purchases containthe taxes in the price of the product.

Yes No

v1-76 Respondent stipulates that it is an act offraud, or at least an error, for the IRS toclaim that 26 USC 7608 was limited to criminalinvestigators and criminal matters.

Yes No

v1-77 Respondent stipulates that fraud vitiateseverything into which it enters, according tothe rulings of the Courts.

Yes No

See McNally v. U.S., 483 U.S. 350, 371-372(1987), Quoting U.S. v Holzer, 816 F.2d. 304,307.

v1-78 Respondent stipulates that there are peopleunlawfully held in prison on “income taxevasion” if the term “income” in the InternalRevenue Code only applies to “subtitle E or ofany other law of the United States pertainingto the commodities subject to tax” and thatthey were convicted of failing to pay a directun-apportioned tax.

Yes No

v1-79 Respondent stipulates that there are peopleunlawfully held in prison on “income taxevasion” if the term “income” in the 16thAmendment means only a profit derived by acorporation, and that “other provisions of theAct make it plain that the legislative purposewas not to tax property as such, or the mereconversion of property, but to tax the conduct

Yes No


Page 21 of 28

of the business of corporations organized forprofit upon the gainful returns from theirbusiness operations." and that they wereconvicted of failing to pay a direct un-apportioned tax.

v1-80 Respondent stipulates that a convictionobtained by means of fraud, voids thejudgment.

Yes No

People ex rel. Brzica v. Village of LakeBarrington, 644 N.E.2d 66 (Ill.App. 2 Dist.1994). “Void order which is one entered bycourt which lacks jurisdiction over parties orsubject matter, or lacks inherent power toenter judgment, or order procured by fraud,can be attacked at any time, in any court,either directly or collaterally, provided thatparty is properly before court”,

v1-81 Respondent stipulates that, “Knowing failureto disclose material information necessary toprevent statement from being misleading, ormaking representation despite knowledge thatit has no reasonable basis in fact, areactionable as fraud under law”.

Yes No

v1-82 Respondent stipulates that convictionsobtained by means of withholding materialinformation from a jury are void ab initio.

Yes No

v1-83 Respondent stipulates that the judgespresiding over the convictions of persons, whodid not inform the jury of the InternalRevenue meaning of the word “income” (materialinformation), perpetrated fraud or at leastdisplayed gross negligence and incompetence inthese cases.

Yes No

v1-84 Respondent stipulates that the judgespresiding over the convictions of persons, whodid not inform the jury on the limitations offederal taxing powers and the meaning of theword “income” (material information),perpetrated fraud or at least displayed grossnegligence in these cases.

Yes No

v1-85 Respondent stipulates that in such a seriousmatter, where people are unlawfully held inprison, that the Congress has the duty to

Yes No


Page 22 of 28

immediately act to correct the unlawfulimprisonment of innocent people.Arthur v Fry, 300 F.Supp. 622 (1960),“Sovereign immunity does not apply where (ashere) government is a lawbreaker orjurisdiction is the issue.”

Rubinstein v Collins, 20 F.3d 160, 1990,“Knowing failure to disclose materialinformation necessary to prevent statementfrom being misleading, or makingrepresentation despite knowledge that it hasno reasonable basis in fact, are actionable asfraud under law.”

Bransom v Standard Hardware, Inc., 874 S.W.2d919, 1994, “Party in interest may becomeliable for fraud by mere silent acquiescenceand partaking of benefits of fraud.”

v1-86 Respondent stipulates that he/she cannotprovide the Statute At Large, the CodeSection, or the Implementing Regulation of thealleged law that imposes an income tax onevery individual.

Yes No

The LAW of the case must affirmatively appearin record, which in the instance of a taxcontroversy necessarily includes taxing andliability statutes with attending regulations.(See UNITED STATES OF AMERICA v. MENK, 260F.Supp. 784, 787 and UNITED STATES OF AMERICAv. COMMUNITY TV INC., 327 F.2d 79 (10thCircuit 1964).

v1-87 Respondent stipulates that the law, taxing andliability statutes have not been provided tothe citizens.

Yes No

v1-88 Respondent stipulates that by concealinginformation from the general public in thematerial matter as to which laws orregulations were referred to in IRSliterature, that the IRS was guilty ofviolating their fiduciary obligation andcommitted acts of malicious and deliberatefraud.

Yes No

v1-89 Respondent stipulates that if all personsdealing with the government are charged with

Yes No


Page 23 of 28

knowing the government statutes andregulations, then it follows that the IRSshould also be able to provide the statutesand regulations in their literature, whichthey claimed make all individuals liable forincome taxes.

v1-90 Respondent stipulates that if a personrequests a government agent to provide theauthority under which the agent operates, andthat agent refuses to provide that authorityor even respond, then that refusal or failureto respond constitutes fraud.

Yes No

Lavin v Marsh, 644 F.2d 1378 (9th Cir. 1981):“Persons dealing with the government arecharged with knowing government statutes andregulations, and they assume the risk thatgovernment agents may exceed their authorityand provide misinformation,” 644 F.2d, at1383.

Bollow v. Federal Reserve Bank of SanFrancisco, 650 F.2d 1093 (9th Cir. 1981) held:"All persons in the United States arechargeable with knowledge of the Statutes-at-Large....[I]t is well established that anyonewho deals with the government assumes the riskthat the agent acting in the government'sbehalf has exceeded the bounds of hisauthority," 650 F.2d, at 1100.

v1-91 Respondent stipulates that W-4 forms that arerequired to be filed with employers under 26USC 3401 through 3405, are only required to befiled by employees, as defined by 26 USC 3401.

Yes No

26 USC 3401, (c) Employee - For purposes ofthis chapter, the term `èmployee'' includesan officer, employee, or elected official ofthe United States, a State, or any politicalsubdivision thereof, or the District ofColumbia, or any agency or instrumentality ofany one or more of the foregoing. The term“employee'' also includes an officer of acorporation.”

v1-92 Respondent stipulates that the definition of“employee” in 26 USC 3401 (c) cannot beexpanded by implication beyond the clearimport of the language.

Yes No


Page 24 of 28

Gould v Gould, 245 U.S. 151 (1917): “In theinterpretation of statutes levying taxes, itis the established rule not to extend theirprovisions, by implication, beyond the clearimport of the language used, or to enlargetheir operations so as to embrace matters notspecifically pointed out. In case of doubtthey are construed most strongly against thegovernment, and in favor of the citizen.United States v. Wigglesworth, 2 Story, 369,Fed. Cas. No. 16,690; American Net & Twine Co.v. Worthington, 141 U.S. 468, 474 , 12 S. Sup.Ct. 55; Benziger v. United States, 192 U.S.38, 55 , 24 S. Sup. Ct. 189.”

v1-93 Respondent stipulates that this is a materialmatter that should be made known to thegeneral public.

Yes No

v1-94 Respondent stipulates agree that 26 USC 6332(c) requires that any surrender to the IRS ofbank deposits by a bank, must be accompaniedby an attachment or execution under judicialprocess.

Yes No

Special rule for banks “Any bank (as definedin section 408(n)) shall surrender (subject toan attachment or execution under judicialprocess) any deposits (including interestthereon) in such bank only after 21 days afterservice of levy.”

v1-95 Respondent stipulates that the definition of“attachment or execution under judicialprocess” in 26 USC 6332 (c), cannot beexpanded by implication beyond the clearimport of the language.

Yes No

v1-96 Respondent stipulates that, “In theinterpretation of statutes levying taxes” that“In case of doubt they are construed moststrongly against the government, and in favorof the citizen”.

Yes No

Gould v Gould, 245 U.S. 151 (1917): “In theinterpretation of statutes levying taxes it isthe established rule not to extend theirprovisions, by implication, beyond the clearimport of the language used, or to enlargetheir operations so as to embrace matters notspecifically pointed out. In case of doubt


Page 25 of 28

they are construed most strongly against thegovernment, and in favor of the citizen.United States v. Wigglesworth, 2 Story, 369,Fed. Cas. No. 16,690; American Net & Twine Co.v. Worthington, 141 U.S. 468, 474 , 12 S. Sup.Ct. 55; Benziger v. United States, 192 U.S.38, 55 , 24 S. Sup. Ct. 189.”

v1-97 Respondent stipulates that a mere “notice oflevy” is not an actual levy, and that a noticeof levy is fraud without an actual levy beingperfected or accomplished.

Yes No

United States v. O'Dell, 160 F. 2d 304, 307(6th Circuit 1947), "A 'Levy' requires thatproperty be brought into legal custody throughseizure, actual or constructive, and isabsolute appropriation in law of propertylevied on, and MERE NOTICE OF INTENT TO LEVYIS INSUFFICIENT" (Emphasis added).

v1-98 Respondent stipulates that he/she knows thatthe IRS routinely serves a mere “notice oflevy” on banks and employers, without havingperfected or accomplished an actual levy, andwithout an attachment or writ under judicialprocess.

Yes No

v1-99 Respondent stipulates that a 668-B (LEVY) formmust be filled out and completed before a 668-A, 668-W, or 668-Y (NOTICES OF LEVY) can besent out.

Yes No

Henderson v Internal Revenue Service,Kleinrock's Tax Court Reported, 1994-486,S.D.Indiana, Case # IP 93-1699-C, Filed May31, 1994, “Under the 1939 Code, effectivewith respect to distraint and seizure and saleactions prior to January 1, 1955, levy ordistraint on personal or real property in thepossession of a taxpayer was authorized by asigned Warrant for Distraint, Form 69, whichcommanded the collection officer to take thenecessary distraint action. Under the 1954Code, effective with respect to all collectionactions after December 31, 1954, the levy anddistraint action will be authorized by a newform, Levy, Form 668-B, January 1955. Thisform (668-B, not 668-W, notice of levy),properly executed, directs the collectionofficer to levy upon, and to sell so much of


Page 26 of 28

the property and rights to property, eitherreal or personal, of the taxpayer liable, asmay be necessary to satisfy the taxesenumerated in the levy. The Form will notrequire any accompanying documents, since theForm, properly prepared, will contain allinformation necessary to meet the statutoryrequirements (emphasis added)."

v1-100 Respondent stipulates that the IRS agentscharged with enforcement (note: who are onlyauthorized to collect excise taxes under 26USC 7608), have repeatedly made up bogusassessments, “under color of law”, inviolation of administrative due process asrequired by law. Bogus assessments go out withno date of assessment and no signature by anassessment officer.

Yes No

v1-101 Respondent stipulates that this is a materialmatter that the Congress should notify thegeneral public on.

Yes No

v1-102 Respondent stipulates that he/she has theobligation to uphold the laws of the UnitedStates and the regulations as they are writtenin CFR Sec. 301.6203-1.

Yes No

CFR Sec. 301.6203-1 Method of assessment, “Theamount of the assessment shall, in the case oftax shown on a return by the taxpayer, be theamount so shown, and in all other cases theamount of the assessment shall be the amountshown on the supporting list or record. Thedate of the assessment is the date the summaryrecord is signed by an assessment officer.”

Curley v U.S., Cite as 791 F. Supp 52(E.D.N.Y. 1992) “…A signature requirementprotects the taxpayer by ensuring that aresponsible officer has approved theassessment…”.

Internal Revenue Manual 3(17)(63)(14).1: (2)All tax assessments must be recorded on Form23C Assessment Certificate. The AssessmentCertificate must be signed by the AssessmentOfficer and dated. The Assessment Certificateis the legal document that permits collectionactivity.


Page 27 of 28

v1-103 Respondent stipulates that an unsigned“assessment” violates the law.

Yes No

v1-104 Respondent stipulates that an undated“assessment” violates the law?

Yes No

v1-105 Respondent stipulates that an “assessment”must be recorded on a form 23C assessmentcertificate.

Yes No

v1-106 Respondent stipulates that collection actionsare not permitted without an assessmentcertificate.

Yes No

Date Completed: _______________

__________________________W. Lance StodghillGeneral AttorneyInternal Revenue Service


Page 28 of 28

Docket 1541-06

CERTIFICATE OF SERVICE(Pursuant to Rule 21)

This is to certify that a copy of the foregoing paper was servedon W. Lance Stodghill by mailing the same by Certified Mail onJuly 26, 2006 in a postage-paid wrapper addressed to W. LanceStodghill at 8701 S. Gessner, Suite 710, Houston, Texas 77074.

Dated: July 26, 2006

_____________________________Robert A. McNeilPro Se Plaintiff


EXHIBIT

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R. A. McNeil Case: 08-MC-84Exhibit R-16Page 7 of 10

R. A. McNeil Case: 08-MC-84Exhibit R-16Page 8 of 10



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Robert A. McNeil4400 Memorial Dr. #1200

Houston, Texas 77007713-806-5199

August 9, 2007

SENT VIA COURIER

Mr. Roger CarisRevenue OfficerEmployee #76-42930Department of the TreasuryInternal Revenue Service8701 S. Gessner, STOP5433HALHouston, Texas 77074

Subject: Response to Summons

Dear Mr. Caris:

I received a Summons to appear in your office at 10:00am on August 10, 2007 to give testimony,and bring with me for examination, various documents related to an alleged income tax liabilityfor the years 2003, 2004, 2005, and 2006. (Please see Exhibit A)

It was the first Summons I had ever received so, like any responsible person would do, I read theentire document very carefully. I took special notice of the fact that the Summons was issued byThe Commissioner of Internal Revenue, to me, Robert A. McNeil, under the authority of theInternal Revenue Code, and was signed in the bottom portion of the page by Roger Caris,Revenue Officer. There was no signature of an Approving Officer on the Summons.

I turned the page over and read the “Provisions of the Internal Revenue Code” on the back,noting that the authority of the Commissioner to issue the Summons apparently comes from:

Section 7602 Examination of books and witnesses Section 7603 Service of summons Section 7604 Enforcement of summons Section 7605 Time and place of examination Section 7610 Fees and costs of witnesses Section 7610 Failure to obey summons

A reasonable person would conclude that, since the Summons references Section 76XX as itssource of authority, you are claiming authority to enforce the Summons under “Section 7608Authority of internal revenue enforcement officers”.

Based on my research of the following case law, I am required by the U.S. Supreme Court toknow the authority of the agent who is taking such action.


Page 2

State ex rel McConnell v. First State Bank, 22 Tenn. App. 577, 124 S.W.2d 726, 733 (1938):Bank insolvency case:

"All persons dealing with public officers are bound to take notice of the lawprescribing their authority and powers."

Continental Casualty Co. v. United States, 113 F.2d 284 (5th Cir. 1940):

"Public officers are merely the agents of the public, whose powers and authority aredefined and limited by law. Any act without the scope of the authority so defined doesnot bind the principal, and all persons dealing with such agents are charged withknowledge of the extent of their authority," 113 F.2d, at 286.

Section 1132.55 of the Internal Revenue Manual (entitled “Criminal Investigation Division”)begins as follows:

“The Criminal Investigation Division enforces the criminal statutes applicable toincome, estate, gift, employment, and excise tax laws …involving United Statescitizens residing in foreign countries and nonresident aliens subject to Federalincome tax filing requirements…” [IRM, Section 1132.55 (1991 Ed.)]

The decision reached in the case of Bothke v. Fluor Engineers and Constructors, Inc. 713 F.2d1405 (9th Cir. 1983) states in part,

"When and if IRS Personnel are notified to irregularities, protests, objections, etc., itis up to the officer or agent to prove authority." If the IRS officer or agent fails toprove authority when challenged, s/he may be held liable, without immunity, if it laterproves that there were in fact, procedural flaws and authority was imposed withoutthe force of law.

Per Ryder v. United States, 115 S.Ct. 2031, 132 L.Ed.2d 136, 515 U.S. 177, I am required toinitiate a direct challenge to authority of anyone representing himself or herself as a governmentofficer or agent prior to the finality of any proceeding in order to avoid implications of de factoofficer doctrine. When challenged, those posing as government officers and agents are requiredto affirmatively prove whatever authority they claim.

In the absence of proof, they may be held personally accountable for loss, injury and damages.See particularly, the former 26 U.S.C. § 7804(b), now published in notes following § 7801. Per26 U.S.C. § 7214(a), if and when IRS personnel exceed authority prescribed by law, or fail tocarry out duties imposed by law, they are criminally liable.

Putting my research skills to work, I set out to find the implementing regulations for each of theSections referenced on the back of the Summons.


Page 3

As you are probably aware, the Parallel Table of Authorities lists rulemaking authority (except 5U.S.C. 301) for regulations codified in the Code of Federal Regulations.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Source: http://www.access.gpo.gov/nara/cfr/parallel/parallel_table.html

[Code of Federal Regulations][Parallel Table][Revised as of January 1, 2006][From the U.S. Government Printing Office via GPO Access]

PARALLEL TABLE OF AUTHORITIES AND RULES

-------------------------------------------------------------------------------------------------------------------------------------------

The following table lists rulemaking authority (except 5 U.S.C. 301) for regulations codified in the Code of FederalRegulations. Also included are statutory citations which are noted as being interpreted or applied by thoseregulations.

The table is divided into four segments: United States Code citations, United States Statutes at Large citations,public law citations, and Presidential document citations. Within each segment, the citations are arranged innumerical order:

For the United States Code, by title and section;For the United States Statutes at Large, by volume and page number;For public laws, by number; andFor Presidential documents (Proclamations, Executive orders, and Reorganization plans), by document number.

Entries in the table are taken directly from the rulemaking authority citation provided by Federal agencies in theirregulations. Federal agencies are responsible for keeping these citations current and accurate. Because Federalagencies sometimes present these citations in an inconsistent manner, the table cannot be considered all-inclusive.

The portion of the table listing the United States Code citations is the most comprehensive, as these citations areentered into the table whenever they are given in the authority citations provided by the agencies. United StatesStatutes at Large and public law citations are carried in the table only when there are no corresponding UnitedStatesCode citations given.

This table is revised as of January 1, 2006.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Just a few minutes of research revealed that the Sections of Title 26, referenced on the Summons,derive their rulemaking authority from the relevant Parts of Title 27, as shown below:

26 U.S.C. (1986 I.R.C.)

7601-7606………………………………………27 Part 707602………………………………….27 Parts 29, 46, 2967608……………………………………….27 Part 70, 2967610……………………………………………..27 Part 70


Page 4

You can imagine my surprise and confusion when I searched the internet for Title 27 Part 70 andfound the following:

Source:http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div6&view=text&node=27:2.0.1.4.7.1&idno=27

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

TITLE 27--Alcohol, Tobacco Products and Firearms

CHAPTER I--ALCOHOL AND TOBACCO TAX AND TRADE BUREAU, DEPARTMENT OF THETREASURY

SUBCHAPTER F--PROCEDURES AND PRACTICES

PART 70--PROCEDURE AND ADMINISTRATION

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

I decided to read further, in the hopes that I could see the connection between a Summons for analleged tax liability under 26 USC Subtitles A and C – Internal Revenue Code, and your claim ofauthority to summon me along with my books and records, under 26 USC Section 7608, derivedfrom 27 USC Part 70 – Alcohol, Tobacco Products and Firearms.

So, I started at the beginning and clicked on the link to Subpart A – Scope and took note of theparagraphs related to the issuance of summonses, examination of books and records, entry ofpremises, and preparation of returns.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Title 27: Alcohol, Tobacco and FirearmsPART 70—PROCEDURE AND ADMINISTRATIONSubpart A—Scope§ 70.1 General.

(a) The regulations in Subparts C, D, and E of this part set forth the procedural andadministrative rules of the Alcohol and Tobacco Tax and Trade Bureau for:

(1) The issuance and enforcement of summonses, examination of books of account and witnesses,administration of oaths, entry of premises for examination of taxable objects, granting ofrewards for information, canvass of regions for taxable objects and persons, and authority ofTTB officers.


http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div6&view=text&node=27:2.0.1.4.7.1&idno=27

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=2930b934d07519d087bf3fc4f311a283&rgn=div5&view=text&node=27:2.0.1.4.7&idno=27

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;rgn=div5;view=text;node=27%3A2.0.1.4.7;idno=27;sid=d8a65cadabb2d8287f8f9f2c3adcb7a8;cc=ecfr

Page 5

(3) The preparing or executing of returns; deposits; payment on notice and demand; assessment;abatements, credits and refunds; limitations on assessment; limitations on credit or refund;periods of limitation in judicial proceedings; interest; additions to tax, additional amounts, andassessable penalties; enforced collection activities; authority for establishment, alteration, anddistribution of stamps, marks, or labels; jeopardy assessment of alcohol, tobacco, and firearmstaxes, and registration of persons paying a special tax.

[T.D. ATF–376, 61 FR 31031, June 19, 1996, as amended by T.D. TTB–44, 71 FR 16958, Apr.4, 2006]~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

As you can see, Subpart A talks solely about matters related to alcohol, tobacco products, andfirearms, therefore, I could find no legal basis for your claim of authority, under 26 USC Section7608, derived from 27 USC Part 70 – Alcohol, Tobacco Products and Firearms.

If I have erred in my research and you claim authority under a different Section of the U. S.Code, or Commissioner’s Delegation Order (CDO), or Treasury Delegation Order (TDO), youwill have the opportunity to clarify that point in your response to the Affidavit of Authority,attached to this letter as Exhibit B.

Until I receive the completed Affidavit from you, I offer this response to the Summons:

I, Robert A. McNeil, state, unequivocally, that I have not now, nor have I ever been,engaged in any business activity related to alcohol, tobacco products, or firearms.Therefore, I have no documents responsive to the Summons.

Which leads me to the subject of Constructive Notice:

Constructive Notice: Notice arising by presumption of law from the existence of factsand circumstances that a party had a duty to take notice of... notice presumed by lawto have been acquired by a person and thus imputed to that person. (Black's LawDictionary, Seventh Edition)

Constructive Notice serves to inform a party of the existence of facts and circumstances that aparty had duty to take notice of. It also serves to deny the informed party the defense that he/shehad no knowledge of the facts and circumstances relevant to the issues at hand.

Which leads me to the subject of fraud:

You are hereby NOTICED of the definition of the word “fraud”:

“A knowing misrepresentation of the truth or concealment of a material fact toinduce another to act to his or her detriment.” Black’s Law Dictionary ~ ThirdPocket Edition ~ 2006, page 300.


Page 6

Further,

Fraud: “Deceit, deception, artifice, or trickery operating prejudicially on the rights ofanother, and so intended, by inducing him to part with property or surrender some legalright. 23 Am J2d Fraud § 2. Anything calculated to deceive another to his prejudice andaccomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth,or other device contrary to the plain rules of common honesty. 23 Am J2d Fraud § 2. Anaffirmation of a fact rather than a promise or statement of intent to do something in thefuture. McInnes v Sutliff, 241 111 521, 89 NE 651.”

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). “Fraud and deceit mayarise from silence where there is a duty to speak the truth, as well as from speaking anuntruth.”

McNally v. U.S., 483 U.S. 350, 371-372, Quoting U.S. v Holzer, 816 F.2d. 304, 307:“Fraud in its elementary common law sense of deceit… includes the deliberateconcealment of material information in a setting of fiduciary obligation. A publicofficial is a fiduciary toward the public,… and if he deliberately conceals materialinformation from them he is guilty of fraud.”

It is well established in American jurisprudence that:

“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91U.S 426; “Fraud vitiates everything”, Boyce v. Grundy, 3 Pet. 210; “Fraud vitiatesthe most solemn contracts, documents and even judgments,” U.S. v. Throckmorton,98 U.S. 61.

You are hereby NOTICED that, without proper authority, the Summons issued by theCommissioner, through you, is fraudulent and, therefore, null and void.

You are hereby NOTICED that it is fraud for an IRS agent to impersonate a criminalinvestigator of the Intelligence Division, and fraud vitiates everything that it enters into,including this summons. In your response to the Affidavit of Authority, you will be required toprovide evidence of your authority to act as a criminal investigator in the Intelligence Division.

You are hereby NOTICED of the following case law related to the search and seizure of privatebooks and papers:

BOYD v. U S, 116 U.S. 616, 623 (1886): "The search for and seizure of stolen orforfeited goods, or goods liable to duties and concealed to avoid the payment thereof,are totally different things from a search for and seizure of a man's private books andpapers for the purpose of obtaining information therein contained, or of using themas evidence against him. The two things differ toto coelo. In the one case, thegovernment is entitled to the possession of the property; in the other it is not.""Papers are the owner's goods and chattels; they are his dearest property, and are sofar from enduring a seizure, that they will hardly bear an inspection; and though theeye cannot by the laws of England be guilty of a trespass, yet where private papers are


Page 7

removed and erried away the secret nature of those goods will be an aggravation ofthe trespass, and demand more considerable damages in that respect. Where is thewritten law that gives any magistrate such a power? I can safely answer, there isnone; and therefore it is too much for us, without such authority, to pronounce apractice legal which would be subversive of all the comforts of society.", at 628.

It appears that there is no written law giving you the power to search for and seize mypersonal books and records.

You are hereby NOTICED of the following U.S. Supreme Court case, setting forth the essentialelements of tax evasion and willful failure to file, which the Government is required to prove:

CHEEK v. UNITED STATES, 498 U.S. 192 (1991): Willfulness, as construed by ourprior decisions in criminal tax cases, requires the Government to prove that the (1)law imposed a duty on the defendant, (2) that the defendant knew of this duty, and (3)that he voluntarily and intentionally violated that duty." There are three essentialelements to the crime of tax evasion, namely (1) willfulness; (2) existence of a taxdeficiency; and (3) an affirmative act constituting an evasion or attempted evasion ofthe tax. Sansone v. United States, 380 U.S. 343, at 351, 85 S.Ct. 1004, at 1010 (1965);United States v. Bishop, 264 F.3d 535 (5th Cir. 2001); United States v. Dack, 747 F.2d1172, at 1174 (7th Cir. 1984); and United States v. Mal, 942 F.2d 682, at 687 (9th Cir.1991); United States v. Silkman, 156 F.3d 833 (8th Cir. 1998). See also Lawn v.United States, 355 U.S. 339, at 361, 78 S.Ct. 311 (1958.

You are hereby NOTICED of the recent case against Tommy K. Cryer (Case #06-50164-01),involving tax evasion and willful failure to file. After two years of investigation and preparation,the Department of Justice attorneys withdrew the felony tax evasion charges at the start of thetrial. In addition, the attorneys could not provide the “law” that made the defendant liable for theFederal Income Tax. As a result, Mr. Cryer was acquitted by the jury of the charges of willfulfailure to file. This case was decided on July 13, 2007. (Please see Exhibit D)

United States v. Tommy K. CryerNo. 06-50164-01Western District of LouisianaShreveport Division

Apparently, Mr. Cryer did a good job of explaining to the jury what he read in the Brushaber,Stanton, and Eisner Supreme Court cases about the legal meaning of the word "income" andwhat he read in the Internal Revenue Code - everything but the law that required him to file. Hehad asked the IRS to show him the law that made him liable, but the IRS did not respond.

You are hereby NOTICED of the numerous U.S. Supreme Court cases prohibiting a direct taxon the citizens of the United States without apportionment according to the census, as set forth inArticle I, Section 2, Clause 3 and Article I, Section 9, Clause 4. (Please see Exhibit C)


Page 8

In the Tommy Cryer case, as well as others, the Department of Justice attorneys committed fraudby claiming that these Supreme Court cases had been overturned by Tax Court cases and byunpublished decisions.

In truth, these Supreme Court cases have never been overturned and support the fact that ArticleI, Section 2, Clause 3 and Article I, Section 9, Clause 4 of the Constitution remain in full effecttoday.

The conclusion to be reached by this discussion is that there is no law requiring me or anyother U.S. citizen to file a tax return or pay Federal Income Taxes.

If you have knowledge of such a law, you will have the opportunity to state it in the Affidavit ofAuthority.

Which brings me to the following:

My first contact from the IRS for an alleged tax liability occurred when I received a “ProposedIndividual Income Tax Assessment” for the tax year 2002. That document was dated July 25,2005. Over the next 18 months, I repeatedly provided the IRS with evidence that I did not havea tax liability for 2002, or any other year.

My first contact with you was your letter to me on February 9, 2007, informing me that you werein the process of gathering information from various third parties related to unfiled returns.Since that time, you have taken the following actions:

Refused to acknowledge the U. S. Supreme Court cases cited; Refused to fill out and return the Affidavit of Authority (even going so far as to detach

the Affidavit from my original letter and mailing it back to me, staple holes and all); Refused to provide me with a list of all persons contacted by any employee, contractor,

agent, officer, or other representative of the Internal Revenue Service, along with thename(s) and employee number(s) of any employee(s), contractor(s), agent(s), officer(s)or other representative(s) of the Internal Revenue Service who contacted them, as Irequested in my letter dated March 16, 2007;

Placed Federal Tax Liens on my assets; Confiscated $1,358.76 from my bank accounts; Caused me to incur $136.00 in insufficient funds charges, as a result of the confiscation

of my funds; Threatened and intimidated my clients, causing them to remit $18,937.71 to the

Department of Treasury for a tax liability that I do not owe; As a direct result of your threats, at least one client has refused to engage me for any

future projects, thereby depriving me of my most basic right….. the right to contract andwork where and for whom I choose.

Butcher's Union vs. Crescent City, 111 US 746, 756 (1884) "It has been wellsaid that the property which every man has in his own labor, as it is theoriginal foundation of all other property, so it is the most sacred andinviolable.";



Exhibit A

Summons




Exhibit B

Affidavit of Authority

Please fill out the following Affidavit and return by certified mail to Robert A. McNeilwithin 10 days. You may fill out only those items that you are prepared to swear to oraffirm. You may refuse certain items by drawing a line through the items and initialingthose items in the margin.

Please be notified that if you refuse to swear to or affirm any of the listed items, relying onyour 5th amendment rights of not being compelled to testify against yourself, that suchrefusal shall be the equivalent of standing mute and the court will be forced to make itsdeterminations based on the sworn testimony and evidence provided by Robert A. McNeil.



I am an authorized representative of the Internal Revenue Service.

1) I understand that Robert A. McNeil is a citizen of Texas and the United States and

is not engaged in a corporate activity and is not liable for the income tax under the

corporate income (excise) tax and does not have earnings from foreign sources.

2) Robert A. McNeil is liable for the individual income tax, that is a direct tax on his

property, levied without the Apportionment provision of the U.S. Constitution.

3) IRC section 7608 or section _________ authorizes agents with my title to perform

collection actions under subtitle A and C.

4) I certify that I am duly delegated to issue Notices of Lien and Levy by Delegation

Order number ____________ from the Secretary.

5) My delegation orders from the Secretary to perform collection actions under IRC

Section 6331 are listed in delegation order number(s) ________________.

6) I am authorized to take collection actions against Robert A. McNeil, under the

authority of the 16th Amendment without the constitutional requirements of

Apportionment. I understand that Robert A. McNeil is not operating as a corporate

entity and has not received taxable income under the definition of “income” in the

16th Amendment, as stated by U.S. Supreme Court rulings.

7) The Internal Revenue Service has the lawful authority under subtitle A to require

Robert A. McNeil to file 1040s and require him to include his sources of income as if

those sources were “income” defined by the U.S. Supreme Court.

8) The Internal Revenue Service has the lawful authority to require Robert A. McNeil

to file form 1040s under penalty of perjury for any and all years in question and this

would not violate Robert A. McNeil’s Constitutional protections.


9) Our lawful authority to impose an individual direct tax without Apportionment,

that makes Robert A. McNeil liable for the individual income tax, is the Internal

Revenue Code, section _______, paragraph(s) ________, and regulation number

___________, paragraph ________ of the Code of Federal Regulations, Title 26.

10) I further certify that the IRS is acting under all lawful and correct collection

procedures.

I declare under the penalty of perjury and under the laws of the United States that the foregoingis true and correct, except for items that I have crossed out and initialed.

Signed _______________________________ Date: ___________________

Printed Name of Agent __________________________________________

Agent’s Employee Number ______________________

Agent’s Title ________________________

Agent’s IRS Division Name _______________________________

Witness Signature and Printed Name _________________________________

The State of Texas

County of _________________________

Before me, a Notary Public, on this day personally appeared_____________________________, known to me (orproved to me on the oath of__________________________) to be the person whose name is subscribed to theforgoing instrument and acknowledged to me that he executed the same for the purpose and consideration thereinexpressed.

Given under my hand and seal of office this _______day of _________________ A.D. 20_______

________________________________________

Notary Public, State of Texas

________________________________________

(Print name of Notary Public here)

My commission expires the______ day of____________________20______


Notice of Non-Compliance

Notice is hereby given that if you fail to produce this affidavit, signed by an authorized

agent, your failure to do so shall be construed as prima facie evidence that there is no agent

in your department or agency who is authorized to take collection actions under IRC

section 6331, or subtitle A or C, or under Title 26 and shall create the legal presumption or

conclusion that you have been taking illegal collection actions against Robert A. McNeil,

while acting “under color of law” and are engaged in an extortion and fraud scheme

against Robert A. McNeil.

Important footnotes follow;

In Federal Crop Insurance v. Merrill, 332 U.S. 380, the Supreme Court ruled:

“Whatever the form in which the government functions, anyone entering into anarrangement with the government takes a risk of having accurately ascertained that hewho purports to act for the government stays within the bounds of his authority, eventhough the agent himself may be unaware of the limitations upon his authority.” Alsosee Utah Power & Light Co. v. United States, 243 U.S. 389; United States v. Stewart,311 U.S. 60; and generally, in re Floyd Acceptances, 7 Wall. 666.

Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587 (1931):

"Official powers cannot be extended beyond the terms and necessary implications ofthe grant. If broader powers be desirable, they must be conferred by Congress. Theycannot be merely assumed by administrative officers; nor can they be created by thecourts in the proper exercise of their judicial functions," 283 U.S., at 649.

State ex rel McConnell v. First State Bank, 22 Tenn. App. 577, 124 S.W.2d 726, 733 (1938):

"All persons dealing with public officers are bound to take notice of the law prescribingtheir authority and powers."



Quaker Oats Co. v. Fed. Security Administrator, 129 F.2d 76, 80 (7th Cir. 1942), reversed onother grounds at 318 U.S. 218, 63 S.Ct. 589 (1943):



Exhibit C

The U.S. Constitution and the 16th Amendment

The Constitution of the United States prohibits a direct un-apportioned tax in two places: Article1, Section 2, Clause 3 and Article 1, Section 9, Clause 4.

Article 1, Section 2, Clause 3: “Representative and direct Taxes shall be apportioned amongthe several states which may be included in this Union, according to their respectiveNumbers…..”

Article 1, Section 9, Clause 4: “No Capitation, or other direct, Tax shall be laid, unless inProportion to the Census or enumeration herein before directed to be taken.”

This prohibition against a direct un-apportioned tax remains in full force and effect today.

16th Amendment (Passed by Congress July 2, 1909. Ratified February 3, 1913): The Congressshall have power to lay and collect taxes on incomes, from whatever source derived, withoutapportionment among the several States, and without regard to any census or enumeration.

The Internal Revenue Service falsely states that the Constitution and the 16th Amendmentauthorize a tax on every individual. The following cases show that such claim is false andfraudulent.

STATE OF RHODE ISLAND v. COM. OF MASSACHUSETTS, 37 U.S. 657 (1838): "Thegovernment of the United States may, therefore, exercise all, but no more than all the judicialpower provided for it by the constitution." 37 US 657, 672. (Underline emphasis)

Murdock vs. Com. of Penn., 319 US 105, at 113; 63 S Ct at 875; 87 L Ed at 1298 (1943): “Astate may not impose a charge for the enjoyment of a right granted by the FederalConstitution.”

“Nothing can be clearer than that what the constitution intended to guard against was theexercise by the general government of the power of directly taxing persons and property withinany state through a majority made up from the other states.” Pollock vs. Farmers’ Loan andTrust Co. on original intent, 157 US 429, 582 (1895).

Brushaber vs. Union Pacific, 240 US 1, 12 (1916), on original intent, "... the all embracingcharacter of the two great classifications, including, on the one hand, Direct Taxes subject toapportionment, and on the other, excises, duties, and imposts subject to uniformity, held thelaw to be unconstitutional in substance for these reasons: concluding that the classification ofDirect was adopted for the purpose of rendering it impossible to burden by taxationaccumulations of property, real or personal, except subject to the regulation of apportionment,..." (Underline emphasis)

10th Amendment to the Constitution states: "The powers not delegated to the United Statesby the Constitution, nor prohibited by it to the States, are reserved to the Statesrespectively, or to the People."


Pollock vs. Farmers’ Loan and Trust Co., 157 US 429, 629 (1895): "Excise' is defined to be aninland imposition, sometimes upon the consumption of the commodity, and sometimes uponthe retail sale; sometimes upon the manufacturer, and sometimes upon the vendor.”

Knowlton vs. Moore, 178 US 41, 47 (1900): "Direct Taxes bear upon persons, upon possessionand the enjoyment of rights";

FLINT v STONE TRACY, 220 US 107, 151 - 152 (1911): “Duties and imposts are termscommonly applied to levies made by governments on the importation or exportation ofcommodities. Excises are 'taxes laid upon the manufacture, sale, or consumption ofcommodities within the country, upon licenses to pursue certain occupations, and uponcorporate privileges.' Cooley, Const. Lim. 7th ed. 680.” (Underline emphasis)“Thus, in the matter of taxation, the constitution recognizes the two great classes of direct andindirect taxes, and lays down two rules by which their imposition must be governed, namely,the rule of apportionment as to direct taxes, and the rule of uniformity as to duties, imposts,and excises.” Pollock, 157 US 429, 556 (1895);

The Code of Federal Regulations cites direct and indirect taxes in 19 CFR 351.102 Definitions.

Direct tax. ``Direct tax'' means a tax on wages, profits, interests, rents, royalties, and all otherforms of income, a tax on the ownership of real property, or a social welfare charge.

Indirect tax. `Ìndirect tax'' means a sales, excise, turnover, value added, franchise, stamp,transfer, inventory, or equipment tax, a border tax, or any other tax other than a direct tax oran import charge.

See above Brushaber vs. Union Pacific, 240 US 1, 12 (1916), on original intent.

U.S. vs. Whitridge, 231 US 144, 147 (1913): "As repeatedly pointed out by this court, thecorporation tax law of 1909... imposed an excise or privilege tax, and not in any sense a taxupon property or upon income merely as income.";

MERCHANTS’ LOAN & TRUST CO. v SMIETANKA, 255 US 509, 518 - 519 (1921): “TheCorporation Excise Tax Act of August 5, 1909, was not an income tax law, but a definition ofthe word ‘income’ was so necessary in its administration…” “It is obvious that thesedecisions in principle rule the case at bar if the word ‘income’ has the same meaning in theIncome Tax Act of 1913 that it had in the Corporation Excise Tax Act of 1909, and that it hasthe same scope of meaning was in effect decided in Southern Pacific v Lowe…, where it wasassumed for the purpose of decision that there was no difference in its meaning as used in theact of 1909 and in the Income Tax Act of 1913. There can be no doubt that the word must begiven the same meaning and content in the Income Tax Acts of 1916 and 1917 that it had inthe act of 1913. When we add to this, Eisner v Macomber…the definition of ‘income’ whichwas applied was adopted from Stratton’s Independence v Howbert, supra, arising under theCorporation Excise Tax Act of 1909… there would seem to be no room to doubt that the wordmust be given the same meaning in all the Income Tax Acts of Congress that was given to it inthe Corporation Excise Tax Act, and that what that meaning is has now become definitelysettled by decisions of this Court.” (Underline emphasis)


EISNER v MACOMBER, 252 US 189, 205 - 206 (1920): “The 16th Amendment must beconstrued in connection with the taxing clauses of the original Constitution and the effectattributed to them before the amendment was adopted.”“As repeatedly held, this did not extend the taxing power to new subjects…”“…it becomes essential to distinguish between what is and is not ‘income’, as the term is thereused..”“…we find little to add to the succinct definition adopted in two cases arising under theCorporation Tax Act of 1909…(Stratton’s and Doyle)”

SOUTHERN PACIFIC CO. v. LOWE, 247 U.S. 330, 335 (1918): "We must reject in this case,as we have rejected in cases arising under the Corporation Excise Tax Act of 1909, the broadcontention submitted on behalf of the government that all receipts, everything that comes in,are income within the proper definition of the term 'gross income'. Certainly the term'income' has no broader meaning in the Income Tax Act of 1913 than in that of 1909, and forthe present purpose we assume there is no difference in its meaning as used in the two acts."

FLINT v. STONE TRACY CO., 220 U.S. 107, 162 (1911): “In the case at bar we have alreadydiscussed the limitations which the Constitution imposes upon the right to levy excise taxes,and it could not be said, even if the principles of the 14th Amendment were applicable to thepresent case, that there is no substantial difference between the carrying on of business by thecorporations taxed, and the same business when conducted by a private firm or individual.The thing taxed is not the mere dealing in merchandise, in which the actual transactions maybe the same, whether conducted by individuals or corporations, but the tax is laid upon theprivileges which exist in conducting business with the advantages which inhere in thecorporate capacity of those taxed, and which are not enjoyed by private firms or individuals.”(Underline emphasis)

Stratton's Independence, 231 US 399, 417 (1913): “Evidently Congress adopted the income asthe measure of the tax to be imposed with respect to the doing of business in corporate formbecause it desired that the excise should be imposed, approximately at least, with regard to theamount of benefit presumably derived by such corporations from the current operations of thegovernment. In Flint v. Stone Tracy Co. 220 U.S. 107, 165, 55 S. L. ed. 107, 419, 31 Sup. Ct.Rep. 342, Ann. Cas. 1912 B. 1312, it was held that Congress, in exercising the right to tax alegitimate subject of taxation as a franchise [231 U.S. 399, 417] or privilege, was not debarredby the Constitution from measuring the taxation by the total income, although derived in partfrom property which, considered by itself, was not taxable.” (Underline emphasis);

Sims v. Ahrens et al., 271 SW Reporter at 730: “Income is necessarily the product of the jointefforts of the state and the recipient of the income, the state furnishing the protectionnecessary to enable the recipient to produce, receive, and enjoy it, and a tax thereon in the lastanalysis is simply a portion cut from the income and appropriated by the state as its share…”(Underline emphasis)

Redfield v. Fisher, 135 Or. 180, 292 P. 813, 819 (Ore. 1930): "The individual, unlike thecorporation, cannot be taxed for the mere privilege of existing. The corporation is an artificialentity which owes its existence and charter powers to the state; but the individual's rights tolive and own property are natural rights for the enjoyment of which an excise cannot beimposed." (Underline emphasis)


Doyle v. Mitchell Bros., 247 U.S. 179, 183 (1918): "An examination of these and otherprovisions of the Act (Corporation Excise Tax Act of August 5, 1909) make it plain that thelegislative purpose was not to tax property as such, or the mere conversion of property, but totax the conduct of the business of corporations organized for profit upon the gainful returnsfrom their business operations." (Underline emphasis)

STANTON v BALTIC MINING CO., 240 US 103, 112 -114 (1916): “Not being within theauthority of the 16th Amendment, the tax is therefore, within the ruling of Pollack… a directtax and void for want of compliance with the regulation of apportionment.”; (Underlineemphasis)

STANTON v BALTIC MINING CO., 240 US 103, 112 -114 (1916): “…it was settled inStratton’s Independence… that such tax is not a tax upon property… but a true excise leviedon the result of the business...” (Underline emphasis);

Jerome H. Sheip Co. v. Amos, 100 Fla. 863, 130 So. 699, 705 (1930): "A man is free to layhand upon his own property. To acquire and possess property is a right, not a privilege ... Theright to acquire and possess property cannot alone be made the subject of an excise .... nor,generally speaking, can an excise be laid upon the mere right to possess the fruits thereof, asthat right is the chief attribute of ownership." (Underline emphasis);

U.S. v. BALLARD, 535 F2d 400 (1976): “Gross income and not ‘gross receipts’ is thefoundation of income tax liability…” At 404, “The general term ‘income’ is not defined in theInternal Revenue Code.” At 404, “… ‘gross income’ means the total sales, less the cost ofgoods sold, plus any income from investments and from incidental or outside operations orsources.”

Doyle vs. Mitchell, 247 US 179, at 183, at 185 (1918): "Whatever difficulty there may be abouta precise and scientific definition of 'income"; it imports, as used here, something entirelydistinct from principal or capital either as a subject of taxation or as a measure of the tax;conveying rather the idea of gain or increase arising from corporate activities." (Underlineemphasis);

Evans vs. Gore, 253 US 245, 263 (1920); "... It manifestly disregards the fact that by theprevious ruling it was settled that the provisions of the 16th Amendment conferred no newpower of taxation." (Underline emphasis);

Brushaber vs. Union Pacific, 240 US 1, 12 (1916), "... the whole purpose of the Amendmentwas to relieve all income taxes when imposed from apportionment from a consideration of thesource..." and “…on the contrary shows that it was drawn with the object of maintaining thelimitations of the Constitution and harmonizing their operation.” (Underline emphasis);

Peck vs. Lowe, 247 US 165, 173 (1918); "The Sixteenth Amendment, although referred to inargument, has no real bearing and may be put out of view. As pointed out in recent decisions,it does not extend the taxing power to new or excepted subjects…” (Underline emphasis)

Bowers vs. Kerbaugh-Empire, 271 US 170, 174 (1926), "It was not the purpose or effect of thatAmendment to bring any new subject within the taxing power." (Underline emphasis);


Helvering vs. Edison Brothers, 8th Cir. 133 F2d 575 (1943); "The Treasury cannot byinterpretive regulation make income of that which is not income within the meaning of therevenue acts of Congress, nor can Congress, without apportionment, tax that which is notincome within the meaning of the 16th Amendment.";

Also see Southern Pacific vs. Lowe, 247 US 330, 335 (1918); Butcher's Union vs. Cresent City,111 US 746, 756 (1884) "It has been well said that the property which every man has in hisown labor, as it is the original foundation of all other property, so it is the most sacred andinviolable.";

Pollack, 157 US 429, 556, 573, 582, and 436-441 (1895), “No capitation, or other direct, taxshall be laid, unless in proportion to the census….” And, “As to the states and theirmunicipalities, this (contributions to expense of government) is reached largely through theimposition of direct taxes. As to the federal government, it is attained in part through excisesand indirect taxes upon luxuries and consumption generally, to which direct taxation may beadded to the extent the rule of apportionment allows.”;

Flint vs. Stone Tracy, 220 US 107, 161, 165 (1911); Coppage vs. State of Kansas, 236 US 1, 23-24 (1915), “The court held it unconstitutional, saying: 'The right to follow any lawful vocationand to make contracts is as completely within the protection of the Constitution as the right tohold property free from unwarranted seizure, or the liberty to go when and where one will.One of the ways of obtaining property is by contract. The right, therefore, to contract cannotbe infringed by the legislature without violating the letter and spirit of the Constitution. Everycitizen is protected in his right to work where and for whom he will. He may select not only hisemployer, but also his associates.”(Underline emphasis);

Truax vs. Corrigan, 257 US 312, 348 (1921); “That the right to conduct a lawful business, andthereby acquire pecuniary profits, is property, is indisputable.”

Meyer vs. State of Nebraska, 262 US 390, 399 (1923); Without doubt, it denotes not merelyfreedom from bodily restraint but also the right of the individual to contract, to engage in anyof the common occupations of life..."

Sims vs. Ahrens, 167 Ark. 557; 271 S.W. 720, 730-733 (1925), "The legislature has no powerto declare as a privilege and tax for revenue purposes, occupations that are of commonright..." (Underline emphasis);

Taft vs. Bowers, 278 US 470, 481 (1929); “Under former decisions here the settled doctrine isthat the Sixteenth Amendment confers no power upon Congress to define and tax as incomewithout apportionment something which theretofore could not have been properly regarded asincome.”;

Jack Cole vs. MacFarland, 337 S.W. 2d 453, 455-56 (Tenn. 1960), "Realizing and receivingincome or earnings is not a privilege that can be taxed." ... "Since the right to receive incomeor earnings is a right belonging to every person. This right cannot be taxed as a privilege."(Underline emphasis)


Exhibit D

Shreveport TimesJuly 13, 2007

Tommy CryerCase #06-50164-01



EXHIBIT

R-23





EXHIBIT

R-24


Houston, Texas 77007713-806-5199

September 13, 2007

Mr. Roger CarisRevenue OfficerDepartment of the TreasuryInternal Revenue Service8701 S. Gessner, STOP5433HALHouston, Texas 77074

Subject: SECOND Response to Summons

Dear Mr. Caris:

I received a letter from R. Scott Shieldes, Special Assistant U.S. Attorney, dated August 16,2007, entitled “Enforcement of Summons” (see Exhibit A). In that letter, he stated:

That I had failed to fully comply with a summons to appear in your office at 10:00am onAugust 10, 2007 and provide all documents and records I possess or control aboutincome I received for the years 2003, 2004, 2005, and 2006;

That he had been requested to institute proceedings against me in the United StatesDistrict Court to secure an order directing me to appear and to provide the requestedinformation;

That I am ordered to appear before you on September 14, 2007, at 10:00am at 6701 S.Gessner, Houston, Texas 77074 and produce the books, records, or other documentscalled for in the summons at that time, and;

That, if I fail to fully comply with the summons, he will immediately proceed to file anaction against me in the United States District Court.

As you are no doubt aware, I responded to the summons with a 24-page letter, dated August 9,2007, delivered to you, via courier, on August 10, 2007 (see Exhibit B).

In that letter, I demanded that you provide evidence of your authority to take action against meby completing and returning to me an “Affidavit of Authority”. The Affidavit contains thefollowing 10 questions, with instructions:

“Please fill out the following Affidavit and return by certified mail to Robert A. McNeil within 10days. You may fill out only those items that you are prepared to swear to or affirm. You mayrefuse certain items by drawing a line through the items and initialing those items in the margin.


Page 2

Please be notified that if you refuse to swear to or affirm any of the listed items, relying on your5th amendment rights of not being compelled to testify against yourself, that such refusal shall bethe equivalent of standing mute and the court will be forced to make its determinations based onthe sworn testimony and evidence provided by Robert A. McNeil.

1) I understand that Robert A. McNeil is a citizen of Texas and the United States and is notengaged in a corporate activity and is not liable for the income tax under the corporateincome (excise) tax and does not have earnings from foreign sources.

2) Robert A. McNeil is liable for the individual income tax, that is a direct tax on hisproperty, levied without the Apportionment provision of the U.S. Constitution.

3) IRC section 7608 or section _________ authorizes agents with my title to performcollection actions under subtitle A and C.

4) I certify that I am duly delegated to issue Notices of Lien and Levy by Delegation Ordernumber ____________ from the Secretary.

5) My delegation orders from the Secretary to perform collection actions under IRC Section6331 are listed in delegation order number(s) ________________.

6) I am authorized to take collection actions against Robert A. McNeil, under the authorityof the 16th Amendment without the constitutional requirements of Apportionment. Iunderstand that Robert A. McNeil is not operating as a corporate entity and has notreceived taxable income under the definition of “income” in the 16th Amendment, asstated by U.S. Supreme Court rulings.

7) The Internal Revenue Service has the lawful authority under subtitle A to require RobertA. McNeil to file 1040s and require him to include his sources of income as if thosesources were “income” defined by the U.S. Supreme Court.

8) The Internal Revenue Service has the lawful authority to require Robert A. McNeil to fileform 1040s under penalty of perjury for any and all years in question and this would notviolate Robert A. McNeil’s Constitutional protections.

9) Our lawful authority to impose an individual direct tax without Apportionment, thatmakes Robert A. McNeil liable for the individual income tax, is the Internal RevenueCode, section _______, paragraph(s) ________, and regulation number ___________,paragraph ________ of the Code of Federal Regulations, Title 26.

10) I further certify that the IRS is acting under all lawful and correct collectionprocedures.”

You failed to complete and return the Affidavit to me.


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In fact, this is the second time you have refused to provide evidence of your authority to takeaction against me. The first instance occurred when you refused to respond to my March 16,2007 letter, in which I provided the first copy of the Affidavit for you to complete (see ExhibitC).

Although you failed to complete the Affidavit, you made the effort to detach the Affidavit frommy letter and return the original, blank Affidavit to me, staple holes intact, in an obvious act ofdefiance. Your actions clearly demonstrate bad faith in dealing with the matters before us today.

Your refusal to provide evidence of your authority or to respond to the issues raised in my letters,however, is consistent with the actions of other IRS employees, as well, as shown below:

Jan Sinclair, Operations Manager, Automatic Substitute For Return (ASFR),Holtsville, New York, who refused to provide evidence of authority or respond to theissues raised in my letters dated August 25, 2005 and January 21, 2006.

Scott Prentky, Field Director, Compliance Services, Ogden, Utah, who, in effect,referred to the U.S. Constitution and Supreme Court rulings as “frivolous” andrefused to respond to the issues raised in my letter dated August 25, 2005.

Larry Leder, Operations Manager, Automated Collection System (ACS), Bensalem,Pennsylvania, who refused to provide evidence of authority or respond to the issuesraised in my letter dated September 13, 2006.

Mary Hannah, Operations Manager, Automated Collection System (ACS), Bensalem,Pennsylvania, who refused to provide evidence of authority or respond to the issuesraised in my letter dated February 12, 2007.

Theresa Harley, Operations Manager, Collection, Philadelphia, Pennsylvania, whorefused to provide evidence of authority or respond to the issues raised in my letterdated February 12, 2007.

The silence and evasion exhibited by you and the above-referenced IRS employees clearlydemonstrate a pattern of bad faith dealing and occurred in spite of the fact that I served notice toall parties of the following case law, which requires me to know the authority of the agent who istaking such action:






Page 4





Per Ryder v. United States, 115 S.Ct. 2031, 132 L.Ed.2d 136, 515 U.S. 177, I am required toinitiate a direct challenge to authority of anyone representing himself or herself as a governmentofficer or agent prior to the finality of any proceeding in order to avoid implications of de factoofficer doctrine. When challenged, those posing as government officers and agents are requiredto affirmatively prove whatever authority they claim.

In the absence of proof, they may be held personally accountable for loss, injury and damages.See particularly, the former 26 U.S.C. § 7804(b), now published in notes following § 7801. Per26 U.S.C. § 7214(a), if and when IRS personnel exceed authority prescribed by law, or fail tocarry out duties imposed by law, they are criminally liable.

Now comes my SECOND response to the Summons.

In my letter of August 9, 2007, I noted that the summons was issued under authority of 26 USC7602, 7603, 7604, 7605, and 7210, which relate to activities involving alcohol, tobacco productsand firearms.

Fully convinced that I have never been engaged in such activities, I responded with the followingstatement:

“I, Robert A. McNeil, state, unequivocally, that I have not now, nor have I ever been,engaged in any business activity related to alcohol, tobacco products, or firearms.Therefore, I have no documents responsive to the Summons.”

I have no “income” related to the activities under which the Summons was issued.

I stand by that statement today.


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You failed to refute my claims or even respond to that letter, choosing, instead to contact theU.S. Department of Justice to initiate proceedings against me in United States District Court.

From my research, I noted that the IRS relies primarily on United States v. Powell, 379 U.S. 48(1964) to determine the validity of a Summons. In that case, the Court held that the IRS did nothave to satisfy any standard of probable cause in order to issue a valid summons. All that theGovernment must show is that the summons meets all of the following four criteria:

1. The summons is issued for a legitimate purpose;2. The summons seeks information that may be relevant to that purpose;3. The summons seeks information that is not already within the IRS's possession; and4. The summons satisfies all administrative steps required by the Internal Revenue Code.

The Summons seeks all documents and records I possess or control about “income” I receivedfor the years 2003, 2004, 2005, and 2006.

I contend that the Summons fails to meet the criteria required in United States v Powell379 U.S. 48 (1964), as follows:

1. The summons is issued for a legitimate purpose.

I have no “income” subject to any income tax law, and the IRS knows it. I say this withcertainty because I have served notice to the IRS, on numerous occasions, of the followingcourt cases supporting my position:

Butcher's Union vs. Cresent City, 111 US 746, 756 (1884) Pollock vs. Farmers’ Loan and Trust Co., 157 US 429, 629 (1895) Flint vs. Stone Tracy, 220 US 107, 151 - 152 (1911) U.S. vs. Whitridge, 231 US 144, 147 (1913) Stratton's Independence, 231 US 399, 417 (1913) Merchants’ Loan & Trust Co. vs. Smietanka, 255 US 509, 518 - 519 (1921) Brushaber vs. Union Pacific, 240 US 1, 12 (1916) Stanton vs. Baltic Mining Co., 240 US 103, 112 -114 (1916) Doyle vs. Mitchell Bros., 247 U.S. 179, 183 (1918) Peck vs. Lowe, 247 US 165, 173 (1918) Southern Pacific vs. Lowe, 247 US 330, 335 (1918) Evans vs. Gore, 253 US 245, 263 (1920) Eisner vs. Macomber, 252 US 189, 205 - 206 (1920) Bowers vs. Kerbaugh-Empire, 271 US 170, 174 (1926) Jerome H. Sheip Co. vs. Amos, 100 Fla. 863, 130 So. 699, 705 (1930) Redfield vs. Fisher, 135 Or. 180, 292 P. 813, 819 (Ore. 1930) Helvering vs. Edison Brothers, 8th Cir. 133 F2d 575 (1943) U.S. vs. Ballard, 535 F2d 400 (1976)

Further information regarding these cases can be found in “Exhibit F” attached.


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It should be noted that the IRS’ consistent response to legal arguments based on these casesis to refer to them as “frivolous” and to contend that they have no basis in law. Whenchallenged in court, the U.S. Attorneys consistently cite U.S. Tax Court cases andunpublished lower court decisions to refute the U.S. Supreme Court cases, in clear violationof “stare decisis”, the doctrine of precedence under which a court must follow earlier judicialdecisions when the same points arise again in litigation.

Given the overwhelming evidence that I have no “income” subject to any income taxlaw, the Summons is invalid because the IRS has knowingly and fraudulently issued theSummons for no legitimate purpose.

2. The summons seeks information that may be relevant to that purpose.

As stated in the paragraph above, I have provided overwhelming evidence that I have no“income” subject to any income tax law, and the IRS has knowingly and fraudulently issuedthe Summons for no legitimate purpose.

The Summons is, therefore, invalid, because there is no relevant purpose for seekinginformation regarding “income” not subject to any income tax law.

3. The summons seeks information that is not already within the IRS's possession.

U.S. Attorney Manual Title 6 Tax Resource Manual 27 sets forth the requirements necessaryto satisfy the third Powell requirement as follows:

The IRS must show that the summoned information is not already in the IRS'possession. As noted above, the simple statement in the IRS agent's declaration thatthe summoned information is not in the possession of the IRS is sufficient to shift theburden of proof to the party opposing enforcement to come forward with evidence tothe contrary.

The Summons seeks records and documents supporting “income” I may have received forthe years 2003, 2004, 2005, and 2006. In reviewing the Summons, I noted that you hadattached eight (8) pages of documents that appeared to have been extracted from the IRS’computer files.

The header on each document indicates that they were extracted on July 24, 2007 on StationName: HUS026MA2621481 using Document Type “1099-MISC” as the search criteria.Each document shows the “Payer Identity Data” and “Non-Employee Compensation”amounts for tax years 2003, 2004, 2005, and 2006.

These documents provide clear and convincing evidence that the IRS already has in itspossession all information necessary to determine “income” for the tax years 2003, 2004,2005, and 2006, as stated in the Summons.


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I have reason to believe that you made a false and misleading statement to the U.S. Attorneythat the summoned information is not in the possession of the IRS, thereby rendering theSummons unenforceable.

Therefore, the Summons is invalid and “unnecessary” because it fails to satisfy therequirement that the information sought is not already within the IRS’ possession, asset forth in United States v. Powell, 379 U.S. 48 (1964).

4. The summons meets all administrative requirements

26 USC 7602(c) sets forth the requirement that, prior to the issuance of a Summons, the IRSmust notify me of contact with third parties with respect to the determination or collection ofa tax liability, as follows:

(c) Notice of contact of third parties(1) General noticeAn officer or employee of the Internal Revenue Service may not contact any personother than the taxpayer with respect to the determination or collection of the taxliability of such taxpayer without providing reasonable notice in advance to thetaxpayer that contacts with persons other than the taxpayer may be made.(2) Notice of specific contactsThe Secretary shall periodically provide to a taxpayer a record of persons contactedduring such period by the Secretary with respect to the determination or collectionof the tax liability of such taxpayer. Such record shall also be provided uponrequest of the taxpayer. (Emphasis added).(3) ExceptionsThis subsection shall not apply—

(A) to any contact which the taxpayer has authorized;(B) if the Secretary determines for good cause shown that such notice wouldjeopardize collection of any tax or such notice may involve reprisal against anyperson; or(C) with respect to any pending criminal investigation.

Further, U.S. Attorney Manual Title 6 Tax Resource Manual 27 sets forth the requirementsnecessary to satisfy the fourth Powell requirement as follows:

The fourth element of the Powell test is that the IRS comply with the administrativesteps required by the Code. These steps include service on the summoned party and,in the case of a third-party summons, notice to any person identified in the summons.

Courts occasionally have excused minor failures to comply with the requiredadministrative steps provided that the taxpayer has not been prejudiced thereby.United States v. Texas Heart Inst., 755 F.2d 469, 478 (5th Cir. 1985) (provided thatthe taxpayer has had "every benefit of the administrative steps required by the Code,a failure by the IRS to meet the technical niceties of the statute will not barenforcement") (emphasis in original), overruled on other grounds, United States v.Barrett, 837 F.2d 1341 (5th Cir. 1988); United States v. Privitera, 75 A.F.T.R.2d


Page 8

(RIA) 1266, 1266 (9th Cir. 1995) ("Minor violations will be excused where the IRSacts in good faith and there is no prejudice to the taxpayer."). (Emphasis added)

But even though the Sixth Circuit allowed enforcement of a summons despite anonprejudicial administrative deficiency, it cautioned that it expected the IRS tostrictly adhere to all administrative niceties in future cases. See Cook v. UnitedStates, 104 F.3d 886 (6th Cir. 1997). In other words, "technical" violations shouldbe not treated lightly. (Emphasis added)

I acknowledge notice of third party contact under 7602(c), as evidenced in your letter datedFebruary 9, 2007 (copy included in Exhibit C attached). I call your attention to the lastparagraph of that letter, which reads as follows:

“If you have any questions regarding this letter or wish to request a list of contacts,please do not hesitate to contact us at the telephone number listed above.”

In all of my dealings with the IRS, I prefer to use written correspondence, as stated in my March16, 2007 response to your letter (see Exhibit C attached):

“It is apparent that the Internal Revenue Service is gathering evidence for future legalaction against me, so I would prefer to communicate with all IRS personnel in writingfrom this day forward.”

Further, I made the following request, as provided for in 26 USC 7602(c)(2):

“So, please let this letter serve as my formal request to be provided with a list of allpersons contacted by any employee, contractor, agent, officer, or other representativeof the Internal Revenue Service, along with the name(s) and employee number(s) of anyemployee(s), contractor(s), agent(s), officer(s) or other representative(s) of the InternalRevenue Service who contacted them.”

To date, you have failed to provide the information requested, in clear violation of 26 USC7602(c)(2).

The Summons, therefore, is invalid because it fails the fourth Powell test that it “meets alladministrative requirements”.

Which, for a second time, leads me to the subject of Constructive Notice:



Page 9


Which, for a second time, leads me to the subject of fraud:

You are hereby NOTICED of the definition of the word “fraud”:


Further,






You are hereby NOTICED that, without proper authority, the Summons issued by theCommissioner, through you, is fraudulent and, therefore, null and void.

You are hereby NOTICED that it is fraud for an IRS agent to impersonate a criminalinvestigator of the Intelligence Division, and fraud vitiates everything that it enters into,including this summons. You have failed to provide evidence of your authority to act as acriminal investigator in the Intelligence Division.


Page 10

You are hereby NOTICED of the following case law related to the search and seizure of privatebooks and papers:

BOYD v. U S, 116 U.S. 616, 623 (1886): "The search for and seizure of stolen orforfeited goods, or goods liable to duties and concealed to avoid the payment thereof,are totally different things from a search for and seizure of a man's private books andpapers for the purpose of obtaining information therein contained, or of using themas evidence against him. The two things differ toto coelo. In the one case, thegovernment is entitled to the possession of the property; in the other it is not.""Papers are the owner's goods and chattels; they are his dearest property, and are sofar from enduring a seizure, that they will hardly bear an inspection; and though theeye cannot by the laws of England be guilty of a trespass, yet where private papers areremoved and erried away the secret nature of those goods will be an aggravation ofthe trespass, and demand more considerable damages in that respect. Where is thewritten law that gives any magistrate such a power? I can safely answer, there isnone; and therefore it is too much for us, without such authority, to pronounce apractice legal which would be subversive of all the comforts of society.", at 628.

It appears that there is no written law giving you the power to search for and seize mypersonal books and records.

You are hereby NOTICED of the following U.S. Supreme Court case, setting forth the essentialelements of tax evasion and willful failure to file, which the Government is required to prove:

CHEEK v. UNITED STATES, 498 U.S. 192 (1991): Willfulness, as construed by ourprior decisions in criminal tax cases, requires the Government to prove that the (1)law imposed a duty on the defendant, (2) that the defendant knew of this duty, and (3)that he voluntarily and intentionally violated that duty. There are three essentialelements to the crime of tax evasion, namely (1) willfulness; (2) existence of a taxdeficiency; and (3) an affirmative act constituting an evasion or attempted evasion ofthe tax. Sansone v. United States, 380 U.S. 343, at 351, 85 S.Ct. 1004, at 1010 (1965);United States v. Bishop, 264 F.3d 535 (5th Cir. 2001); United States v. Dack, 747 F.2d1172, at 1174 (7th Cir. 1984); and United States v. Mal, 942 F.2d 682, at 687 (9th Cir.1991); United States v. Silkman, 156 F.3d 833 (8th Cir. 1998). See also Lawn v.United States, 355 U.S. 339, at 361, 78 S.Ct. 311 (1958.

You are hereby NOTICED of the recent case against Tommy K. Cryer (Case #06-50164-01),involving tax evasion and willful failure to file. After two years of investigation and preparation,the Department of Justice attorneys withdrew the felony tax evasion charges at the start of thetrial. In addition, the U.S. Attorneys could not provide the “law” that made the defendant liablefor the Federal Income Tax. As a result, Mr. Cryer was acquitted by the jury of the charges ofwillful failure to file. This case was decided on July 13, 2007.



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In truth, these Supreme Court cases have never been overturned and support the fact that thefollowing clauses of the U.S. Constitution, prohibiting a direct un-apportioned tax, remains infull force and effect today.

Article 1, Section 2, Clause 3: “Representatives and direct Taxes shall be apportioned amongthe several states which may be included in this Union, according to their respectiveNumbers…..”


You are hereby NOTICED of the numerous U.S. Supreme Court cases prohibiting a direct taxon the citizens of the United States without apportionment according to the census, as set forth inArticle I, Section 2, Clause 3 and Article I, Section 9, Clause 4. (Please see Exhibit F)


If you have knowledge of such a law, you will be required to state it when we appear in U.S.District Court.


Mr. Shieldes’ letter of August 16 closed with the following statement:

“Please be assured that if you again fail to fully comply with the summons, we willimmediately proceed to file an action against you in United States District Court.”

While the prospect of coercive fines and imprisonment causes me a great deal of concern, I amprepared to demonstrate in Court that the Summons is invalid because it fails to meet therequirements set forth in Powell, thereby rendering it invalid and unenforceable.

Which brings me to your Oath of Office.


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Title 5 USC Part III Subpart B Chapter 33 Subchapter II § 3331 sets forth the oath required byCivil Servants, including IRS Revenue Officers such as you, as follows:

§ 3331. Oath of office

An individual, except the President, elected or appointed to an office of honor or profitin the civil service or uniformed services, shall take the following oath: “I, AB, dosolemnly swear (or affirm) that I will support and defend the Constitution of the UnitedStates against all enemies, foreign and domestic; that I will bear true faith andallegiance to the same; that I take this obligation freely, without any mental reservationor purpose of evasion; and that I will well and faithfully discharge the duties of theoffice on which I am about to enter. So help me God.”

Your silence and evasion in addressing the facts of this case; your failure to recognize thenumerous Supreme Court cases supporting my position; and your complete disregard for theU.S. Constitution, all constitute a clear violation of your oath of office, thereby negating yourauthority to take any action against me.

Now, this section of my response is directed to Mr. Shieldes.

Mr. Shieldes, you are hereby NOTICED of the Local Rules of the United States District Courtfor the Southern District of Texas. You are obviously admitted to the bar of this Court and havebeen assigned Texas Bar No. 38944. In accordance with Section LR83.1 Admission toPractice, you were required to take the following oath:

LR83.1.I Oath. On admission, the lawyer will take this oath before any judicial officer ofthe United States:

I do solemnly swear [affirm] that I will discharge the duties of attorney and counselorof this court faithfully, that I will demean myself uprightly under the law and the highestethics of our profession, and that I will support and defend the Constitution of theUnited States.

Should you proceed with further actions against me, you will find yourself defending thefraudulent actions of the Internal Revenue Service, which will place you in the unenviableposition of a being an “accessory to fraud”, in direct conflict with the ethics of your professionand the very Constitution you took an oath to support and defend. Your actions will constitute a“Serious Crime”, defined in Part 1.Z of the General Rules of the Texas Rules of DisciplinaryProcedure, as follows:

“Serious Crime” means barratry; any felony involving moral turpitude; anymisdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriationof money or other property, or any attempt, conspiracy, or solicitation of another tocommit any of the foregoing crimes.”


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Such actions will subject you to the sanctions provided for in such rules, including:

Disbarment. Resignation in lieu of discipline. Indefinite Disability suspension. Suspension for a term certain.

The term “Sanction” may also include the following additional ancillary requirements:

Restitution (which may include repayment to the Client Security Fund of the State Bar ofany payments made by reason of Respondent’s Professional Misconduct); and

Payment of Reasonable Attorneys’ Fees and all direct expenses associated with theproceedings.

Mr. Caris and Mr. Shieldes, proceed as you will, but, you are hereby NOTICED that I intend tovigorously defend myself as a Pro Se litigant and will exercise all of my rights under the First,Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution, the numerous SupremeCourt cases I have cited, as well as Miranda (MIRANDA v. ARIZONA, 384 U.S. 436 1966).

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting thefree exercise thereof; or abridging the freedom of speech, or of the press; or the right ofthe people peaceably to assemble, and to petition the Government for a redress ofgrievances.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and no Warrantsshall issue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless ona presentment or indictment of a Grand Jury, except in cases arising in the land ornaval forces, or in the Militia, when in actual service in time of War or public danger;nor shall any person be subject for the same offence to be twice put in jeopardy of lifeor limb; nor shall be compelled in any criminal case to be a witness against himself,nor be deprived of life, liberty, or property, without due process of law; nor shallprivate property be taken for public use, without just compensation.




































































EXHIBIT

R-25



EXHIBIT

R-26










EXHIBIT

R-27


Houston, Texas 77007713-806-5199

October 5, 2007

Mr. Roger CarisRevenue OfficerEmployee #76-42930Department of the TreasuryInternal Revenue Service8701 S. Gessner, STOP5433HALHouston, Texas 77074

Subject: Response to Summons Collection Information StatementTax Year: 2002

Dear Mr. Caris:

I recently received a document entitled “Summons Collection Information Statement”, datedSeptember 19, 2007. The Summons stated that I am required to appear before you on October 5,2007 to give testimony and to bring for examination certain information for the period August 1,2007 to present, related to tax period 2002. Attached to the Summons was Form 433-A“Collection Information Statement for Wage Earners and Self-Employed Individuals”. (Pleasesee Exhibit 1)

The Summons stated that the “IRS will use this information to prepare a Collection InformationStatement”.

As any prudent person would do, I read the entire document very carefully. I took special noticeof the fact that the Summons was issued by the Commissioner of Internal Revenue to me, RobertA. McNeil, under the authority of the Internal Revenue Code, and was signed in the bottomportion of the page by you, Roger Caris, Revenue Officer. There was no signature of anApproving Officer on the Summons, so, I can only conclude that you are operating withoutoversight.

I turned the page over and read the “Provisions of the Internal Revenue Code” on the back,noting that the authority of the Commissioner to issue the Summons apparently comes from:

Section 7602 Examination of books and witnesses Section 7603 Service of summons Section 7604 Enforcement of summons Section 7605 Time and place of examination Section 7610 Fees and costs of witnesses Section 7210 Failure to obey summons


Page 2

A reasonable person would conclude that, since the Summons references Section 76XX as itssource of authority, you are claiming authority to enforce the Summons under “Section 7608Authority of internal revenue enforcement officers”.

Based on my research of the following case law, I am required by the U.S. Supreme Court toknow the authority of the agent who is taking such action.









Per Ryder v. United States, 115 S.Ct. 2031, 132 L.Ed.2d 136, 515 U.S. 177, I am required toinitiate a direct challenge to authority of anyone representing himself or herself as a governmentofficer or agent prior to the finality of any proceeding in order to avoid implications of de factoofficer doctrine. When challenged, those posing as government officers and agents arerequired to affirmatively prove whatever authority they claim. (Emphasis added)


Page 3

In the absence of proof, they may be held personally accountable for loss, injury and damages.See particularly, the former 26 U.S.C. § 7804(b), now published in notes following § 7801. Per26 U.S.C. § 7214(a), if and when IRS personnel exceed authority prescribed by law, or failto carry out duties imposed by law, they are criminally liable. (Emphasis added)

Putting my research skills to work, I set out to find the implementing regulations for each of theSections referenced on the back of the Summons.

As you are probably aware, the Parallel Table of Authorities lists rulemaking authority (except 5U.S.C. 301) for regulations codified in the Code of Federal Regulations. During my extensiveresearch, I have learned that each “law” must have a statute at large AND an implementingregulation. Otherwise, it is not law, and that is as stated by the U.S. Code and the Supreme Courtof the United States.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Source: http://www.access.gpo.gov/nara/cfr/parallel/parallel_table.html

[Code of Federal Regulations][Parallel Table][Revised as of January 1, 2006][From the U.S. Government Printing Office via GPO Access]

PARALLEL TABLE OF AUTHORITIES AND RULES

-------------------------------------------------------------------------------------------------------------------------------------------

The following table lists rulemaking authority (except 5 U.S.C. 301) for regulations codified in the Code of FederalRegulations. Also included are statutory citations which are noted as being interpreted or applied by thoseregulations.

The table is divided into four segments: United States Code citations, United States Statutes at Large citations,public law citations, and Presidential document citations. Within each segment, the citations are arranged innumerical order:

For the United States Code, by title and section;For the United States Statutes at Large, by volume and page number;For public laws, by number; andFor Presidential documents (Proclamations, Executive orders, and Reorganization plans), by document number.

Entries in the table are taken directly from the rulemaking authority citation provided by Federal agencies in theirregulations. Federal agencies are responsible for keeping these citations current and accurate. Because Federalagencies sometimes present these citations in an inconsistent manner, the table cannot be considered all-inclusive.

The portion of the table listing the United States Code citations is the most comprehensive, as these citations areentered into the table whenever they are given in the authority citations provided by the agencies. United StatesStatutes at Large and public law citations are carried in the table only when there are no corresponding UnitedStatesCode citations given.

This table is revised as of January 1, 2006.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


Page 4

Just a few minutes of research revealed that the Sections of Title 26, referenced on the Summons,provide rulemaking authority for the relevant Parts of Title 27, as shown below:

26 U.S.C. (1986 I.R.C.)

7601-7606………………………………………27 Part 707602………………………………….27 Parts 29, 46, 2967608……………………………………….27 Part 70, 2967610……………………………………………..27 Part 70

Please note that there are no CFR parts for which 26 USC 7210 provides authority, as shownbelow.

You can imagine my surprise and confusion when I searched the internet for Title 27 and foundthe following:

Source:http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div6&view=text&node=27:2.0.1.4.7.1&idno=27

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~TITLE 27--Alcohol, Tobacco Products and Firearms

CHAPTER I--ALCOHOL AND TOBACCO TAX AND TRADE BUREAU, DEPARTMENT OF THETREASURY~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


Page 5

I decided to read further, in the hopes that I could see the connection between a Summons for analleged tax liability under 26 USC Subtitles A and C – Internal Revenue Code, and your claim ofauthority to summon me along with my books and records, under 26 USC Section 7608, whichprovides rulemaking authority for 27 CFR Part 70 – Alcohol, Tobacco Products and Firearms.

So, I started at the beginning and clicked on the link to Subpart A – Scope, taking note of theparagraphs related to the issuance of summonses, examination of books and records, entry ofpremises, and preparation of returns.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Title 27: Alcohol, Tobacco and FirearmsPART 70—PROCEDURE AND ADMINISTRATIONSubpart A—Scope§ 70.1 General.

(a) The regulations in Subparts C, D, and E of this part set forth the procedural andadministrative rules of the Alcohol and Tobacco Tax and Trade Bureau for:

(1) The issuance and enforcement of summonses, examination of books of account and witnesses,administration of oaths, entry of premises for examination of taxable objects, granting ofrewards for information, canvass of regions for taxable objects and persons, and authority ofTTB officers.

(3) The preparing or executing of returns; deposits; payment on notice and demand;assessment; abatements, credits and refunds; limitations on assessment; limitations on credit orrefund; periods of limitation in judicial proceedings; interest; additions to tax, additionalamounts, and assessable penalties; enforced collection activities; authority for establishment,alteration, and distribution of stamps, marks, or labels; jeopardy assessment of alcohol, tobacco,and firearms taxes, and registration of persons paying a special tax.

[T.D. ATF–376, 61 FR 31031, June 19, 1996, as amended by T.D. TTB–44, 71 FR 16958, Apr.4, 2006]~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

As you can see, Subpart A talks solely about matters related to alcohol, tobacco products, andfirearms, therefore, I could find no legal basis for your claim of authority, under 26 USC Section7608, which provides rulemaking authority for 27 CFR Part 70 – Alcohol, Tobacco Products andFirearms.

In addition, 27 CFR 29 pertains to regulations related to stills, as shown below:

TITLE 27--Alcohol, Tobacco Products and FirearmsCHAPTER I--ALCOHOL AND TOBACCO TAX AND TRADE BUREAU,DEPARTMENT OF THE TREASURYSUBCHAPTER A--LIQUORSPART 29--STILLS AND MISCELLANEOUS REGULATIONS


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Further research revealed that 27 CFR 46 provides regulations for the following activity:

TITLE 27--Alcohol, Tobacco Products and FirearmsCHAPTER I--ALCOHOL AND TOBACCO TAX AND TRADE BUREAU,DEPARTMENT OF THE TREASURYSUBCHAPTER B--TOBACCOPART 46--MISCELLANEOUS REGULATIONS RELATING TO TOBACCOPRODUCTS AND CIGARETTE PAPERS AND TUBES

Finally, to add to the confusion, Section 7602 entitled “Examination of books and records”,Paragraph (a) entitled “Authority to Summon”, talks about “determining the liability of anyperson for any internal revenue tax”. The phrase “any internal revenue tax” suggests that theremight be more than one.

In fact, on the bottom left of the Summons, it states “Authority to examine books and witnessesis also provided under sec. 6420(e)(2)-Gasoline used on farms; sec 6421(g)(2) Gasoline used forcertain nonhighway purposes by local transit systems, or sold for certain exempt purposes; andsec. 6427(j)(2)-Fuels not used for taxable purposes.”

So, in my mind, the Summons fails to clearly state either a) the internal revenue tax that the IRSclaims I am liable for, or; b) the section of the U.S. Code for which you claim authority to issuethe Summons.

If I have erred in my research and you claim authority under a different Section of the U. S.Code, or Commissioner’s Delegation Order (CDO), or Treasury Delegation Order (TDO), youwill have the opportunity to clarify that point in your response to the Affidavit of Authority,attached to this letter as Exhibit 2.

Until I receive the completed Affidavit from you, I offer this response to the Summons:

I, Robert A. McNeil, state, unequivocally, that I have not now, nor have I ever been,engaged in any activity related to alcohol, tobacco products, or firearms; or gasoline usedon farms; or gasoline used for certain nonhighway purposes by local transit systems, orsold for certain exempt purposes; or fuels not used for taxable purposes.”. Therefore, Ihave no documents responsive to the Summons.

In fact, I have no “income” subject to any income tax law, and the IRS knows it. I say this withcertainty because I have served notice to the IRS, on numerous occasions, of the following courtcases supporting my position:

Butcher's Union vs. Cresent City, 111 US 746, 756 (1884) Pollock vs. Farmers’ Loan and Trust Co., 157 US 429, 629 (1895) Flint vs. Stone Tracy, 220 US 107, 151 - 152 (1911) U.S. vs. Whitridge, 231 US 144, 147 (1913)


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Stratton's Independence, 231 US 399, 417 (1913) Merchants’ Loan & Trust Co. vs. Smietanka, 255 US 509, 518 - 519 (1921) Brushaber vs. Union Pacific, 240 US 1, 12 (1916) Stanton vs. Baltic Mining Co., 240 US 103, 112 -114 (1916) Doyle vs. Mitchell Bros., 247 U.S. 179, 183 (1918) Peck vs. Lowe, 247 US 165, 173 (1918) Southern Pacific vs. Lowe, 247 US 330, 335 (1918) Evans vs. Gore, 253 US 245, 263 (1920) Eisner vs. Macomber, 252 US 189, 205 - 206 (1920) Bowers vs. Kerbaugh-Empire, 271 US 170, 174 (1926) Jerome H. Sheip Co. vs. Amos, 100 Fla. 863, 130 So. 699, 705 (1930) Redfield vs. Fisher, 135 Or. 180, 292 P. 813, 819 (Ore. 1930) Helvering vs. Edison Brothers, 8th Cir. 133 F2d 575 (1943) U.S. vs. Ballard, 535 F2d 400 (1976)

Further information regarding these cases can be found in “Exhibit 3” attached.

It should be noted that the IRS’ consistent response to legal arguments based on these cases is torefer to them as “frivolous” and to contend that they have no basis in law. When challenged incourt, however, the U.S. Attorneys consistently cite U.S. Tax Court cases and unpublished lowercourt decisions to refute the U.S. Supreme Court cases, in clear violation of “stare decisis”, thedoctrine of precedence under which a court must follow earlier judicial decisions when the samepoints arise again in litigation.

Which leads me to the subject of Constructive Notice:



Which leads me to the subject of fraud:

YOU ARE HEREBY NOTICED of the definition of the word “fraud”:



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Further,






YOU ARE HEREBY NOTICED that, without proper authority, the Summons issued by theCommissioner, through you, is fraudulent and, therefore, null and void.

YOU ARE HEREBY NOTICED that it is fraud for an IRS agent to impersonate a criminalinvestigator of the Intelligence Division, and fraud vitiates everything that it enters into,including this summons. In your response to the Affidavit of Authority, you will be required toprovide evidence of your authority to act as a criminal investigator in the Intelligence Division.

YOU ARE HEREBY NOTICED of the following case law related to the search and seizure ofprivate books and papers:

BOYD v. U S, 116 U.S. 616, 623 (1886): "The search for and seizure of stolen orforfeited goods, or goods liable to duties and concealed to avoid the payment thereof,are totally different things from a search for and seizure of a man's private books andpapers for the purpose of obtaining information therein contained, or of using themas evidence against him. The two things differ toto coelo. In the one case, thegovernment is entitled to the possession of the property; in the other it is not.""Papers are the owner's goods and chattels; they are his dearest property, and are sofar from enduring a seizure, that they will hardly bear an inspection; and though theeye cannot by the laws of England be guilty of a trespass, yet where private papers are


Page 9

removed and erried away the secret nature of those goods will be an aggravation ofthe trespass, and demand more considerable damages in that respect. Where is thewritten law that gives any magistrate such a power? I can safely answer, there isnone; and therefore it is too much for us, without such authority, to pronounce apractice legal which would be subversive of all the comforts of society.", at 628.

It appears, therefore, that there is no written law giving you the power to search for andseize my personal books and records.

YOU ARE HEREBY NOTICED of the following U.S. Supreme Court case, setting forth theessential elements of tax evasion and willful failure to file, which the Government is required toprove:

CHEEK v. UNITED STATES, 498 U.S. 192 (1991): Willfulness, as construed by ourprior decisions in criminal tax cases, requires the Government to prove that the (1)law imposed a duty on the defendant, (2) that the defendant knew of this duty, and (3)that he voluntarily and intentionally violated that duty." There are three essentialelements to the crime of tax evasion, namely (1) willfulness; (2) existence of a taxdeficiency; and (3) an affirmative act constituting an evasion or attempted evasion ofthe tax. Sansone v. United States, 380 U.S. 343, at 351, 85 S.Ct. 1004, at 1010 (1965);United States v. Bishop, 264 F.3d 535 (5th Cir. 2001); United States v. Dack, 747 F.2d1172, at 1174 (7th Cir. 1984); and United States v. Mal, 942 F.2d 682, at 687 (9th Cir.1991); United States v. Silkman, 156 F.3d 833 (8th Cir. 1998). See also Lawn v.United States, 355 U.S. 339, at 361, 78 S.Ct. 311 (1958.

YOU ARE HEREBY NOTICED of the recent case against Tommy K. Cryer (Case #06-50164-01), involving tax evasion and willful failure to file. After two years of investigation andpreparation, the Department of Justice attorneys withdrew the felony tax evasion charges at thestart of the trial. In addition, the attorneys could not provide the “law” that made the defendantliable for the Federal Income Tax. As a result, Mr. Cryer was acquitted by the jury of thecharges of willful failure to file. This case was decided on July 13, 2007. (Please see Exhibit 4)



YOU ARE HEREBY NOTICED of the numerous U.S. Supreme Court cases prohibiting adirect tax on the citizens of the United States without apportionment according to the census, asset forth in Article I, Section 2, Clause 3 and Article I, Section 9, Clause 4. (Please see Exhibit3)


Page 10


In truth, these Supreme Court cases have never been overturned and support the fact that ArticleI, Section 2, Clause 3 and Article I, Section 9, Clause 4 of the Constitution remain in full effecttoday.

These clauses are stated below:

Article 1, Section 2, Clause 3: “Representatives and direct Taxes shall be apportioned amongthe several states which may be included in this Union, according to their respectiveNumbers…..”



If you have knowledge of such a law, you will have the opportunity to state it in the Affidavit ofAuthority.


My first contact from the IRS for an alleged tax liability occurred when I received a “ProposedIndividual Income Tax Assessment” for the tax year 2002. That document was dated July 25,2005. Over the next 18 months, I repeatedly provided the IRS with evidence that I did not havea tax liability for 2002, or any other year.

My first contact with you was your letter to me on February 9, 2007, informing me that you werein the process of gathering information from various third parties related to unfiled returns.Since that time, you have taken the following actions:

Refused to acknowledge the U. S. Supreme Court cases cited; Refused twice to fill out and return the Affidavit of Authority (even going so far as to

detach the Affidavit from my original letter and mailing it back to me, staple holes andall);

Refused to provide me with a list of all persons contacted by any employee, contractor,agent, officer, or other representative of the Internal Revenue Service, along with thename(s) and employee number(s) of any employee(s), contractor(s), agent(s), officer(s)or other representative(s) of the Internal Revenue Service who contacted them, as Irequested in my letter dated March 16, 2007;

Placed Federal Tax Liens on my assets; Confiscated $1,358.76 from my bank accounts; Caused me to incur $136.00 in insufficient funds charges, as a result of the confiscation

of my funds;


Page 11

Threatened and intimidated my clients, causing them to remit $18,937.71 to theDepartment of Treasury for a tax liability that I do not owe;

As a direct result of your threats, at least one client has refused to engage me for anyfuture projects, thereby depriving me of my most basic right….. the right to contract andwork where and for whom I choose.

Butcher's Union vs. Crescent City, 111 US 746, 756 (1884) "It has been wellsaid that the property which every man has in his own labor, as it is theoriginal foundation of all other property, so it is the most sacred andinviolable.";

Murdock vs. Com. of Penn., 319 US 105, at 113; 63 S Ct at 875; 87 L Ed at1298 (1943): “A state may not impose a charge for the enjoyment of a rightgranted by the Federal Constitution.”

YOU ARE HEREBY NOTICED that your actions have damaged my standing in the businesscommunity, are in violation of the U. S. Constitution, and show a total disregard for the SupremeCourt rulings cited. As a result, you have subjected yourself to prosecution for multiple countsof provable fraud.

Sadly, your refusal to provide evidence of your authority, or to respond to the issues raised in myletters, is consistent with the actions of other IRS employees, as well, as shown below:

Jan Sinclair, Operations Manager, Automatic Substitute For Return (ASFR),Holtsville, New York, who refused to provide evidence of authority or respond to theissues raised in my letters dated August 25, 2005 and January 21, 2006.

Scott Prentky, Field Director, Compliance Services, Ogden, Utah, who, in effect,referred to the U.S. Constitution and Supreme Court rulings as “frivolous” andrefused to respond to the issues raised in my letter dated August 25, 2005.

Larry Leder, Operations Manager, Automated Collection System (ACS), Bensalem,Pennsylvania, who refused to provide evidence of authority or respond to the issuesraised in my letter dated September 13, 2006.

Mary Hannah, Operations Manager, Automated Collection System (ACS), Bensalem,Pennsylvania, who refused to provide evidence of authority or respond to the issuesraised in my letter dated February 12, 2007.

Theresa Harley, Operations Manager, Collection, Philadelphia, Pennsylvania, whorefused to provide evidence of authority or respond to the issues raised in my letterdated February 12, 2007.

The silence and evasion exhibited by you and the above-referenced IRS employees clearlydemonstrates a pattern of bad faith dealing, and occurred in spite of the fact that I served noticeto all parties of relevant case law which requires me to know the authority of the agent who istaking such action:

Based on your actions over the past several months, including the issuance of this Summons, Ican only conclude that you are contemplating further unlawful acts against me.


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Proceed as you will, Mr. Caris, but, YOU ARE HEREBY NOTICED that I intend tovigorously defend myself as a Pro Se litigant and will exercise all of my rights under the First,Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution, the numerous SupremeCourt cases I have cited, as well as Miranda (MIRANDA v. ARIZONA, 384 U.S. 436 1966).

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting thefree exercise thereof; or abridging the freedom of speech, or of the press; or the right ofthe people peaceably to assemble, and to petition the Government for a redress ofgrievances.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and no Warrantsshall issue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless ona presentment or indictment of a Grand Jury, except in cases arising in the land ornaval forces, or in the Militia, when in actual service in time of War or public danger;nor shall any person be subject for the same offence to be twice put in jeopardy of lifeor limb; nor shall be compelled in any criminal case to be a witness against himself,nor be deprived of life, liberty, or property, without due process of law; nor shallprivate property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and publictrial, by an impartial jury of the State and district wherein the crime shall have beencommitted, which district shall have been previously ascertained by law, and to beinformed of the nature and cause of the accusation; to be confronted with the witnessesagainst him; to have compulsory process for obtaining witnesses in his favor, and tohave the Assistance of Counsel for his defence.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusualpunishments inflicted.

Finally, I hereby demand that you fill out and return the attached Affidavit of Authority(Exhibit 2) to me by Certified Mail within 10 calendar days of the date of this letter. ThisAffidavit will serve as proof of your authority under the laws of this country to take any actionagainst me.



Exhibit 1

Summons Collection Information Statement











Exhibit 2


Please fill out the following Affidavit and return by certified mail to Robert A. McNeilwithin 10 days. You may fill out only those items that you are prepared to swear to oraffirm. You may refuse certain items by drawing a line through the items and initialingthose items in the margin.

Please be notified that if you refuse to swear to or affirm any of the listed items, relying onyour 5th amendment rights of not being compelled to testify against yourself, that suchrefusal shall be the equivalent of standing mute and the court will be forced to make itsdeterminations based on the sworn testimony and evidence provided by Robert A. McNeil.



I am an authorized representative of the Internal Revenue Service.

1) I understand that Robert A. McNeil is a citizen of Texas and the United States and

is not engaged in a corporate activity and is not liable for the income tax under the

corporate income (excise) tax and does not have earnings from foreign sources.

2) Robert A. McNeil is liable for the individual income tax, that is a direct tax on his

property, levied without the Apportionment provision of the U.S. Constitution.

3) IRC section 7608 or section _________ authorizes agents with my title to perform

collection actions under subtitle A and C.

4) I certify that I am duly delegated to issue Notices of Lien and Levy by Delegation

Order number ____________ from the Secretary.

5) My delegation orders from the Secretary to perform collection actions under IRC

Section 6331 are listed in delegation order number(s) ________________.

6) I am authorized to take collection actions against Robert A. McNeil, under the

authority of the 16th Amendment without the constitutional requirements of

Apportionment. I understand that Robert A. McNeil is not operating as a corporate

entity and has not received taxable income under the definition of “income” in the

16th Amendment, as stated by U.S. Supreme Court rulings.

7) The Internal Revenue Service has the lawful authority under subtitle A to require

Robert A. McNeil to file 1040s and require him to include his sources of income as if

those sources were “income” defined by the U.S. Supreme Court.

8) The Internal Revenue Service has the lawful authority to require Robert A. McNeil

to file form 1040s under penalty of perjury for any and all years in question and this

would not violate Robert A. McNeil’s Constitutional protections.


9) Our lawful authority to impose an individual direct tax without Apportionment,

that makes Robert A. McNeil liable for the individual income tax, is the Internal

Revenue Code, section _______, paragraph(s) ________, and regulation number

___________, paragraph ________ of the Code of Federal Regulations, Title 26.

10) I further certify that the IRS is acting under all lawful and correct collection

procedures.

I declare under the penalty of perjury and under the laws of the United States that the foregoingis true and correct, except for items that I have crossed out and initialed.

Signed _______________________________ Date: ___________________

Printed Name of Agent __________________________________________

Agent’s Employee Number ______________________

Agent’s Title ________________________

Agent’s IRS Division Name _______________________________

Witness Signature and Printed Name _________________________________

The State of Texas

County of _________________________

Before me, a Notary Public, on this day personally appeared_____________________________, known to me (orproved to me on the oath of__________________________) to be the person whose name is subscribed to theforgoing instrument and acknowledged to me that he executed the same for the purpose and consideration thereinexpressed.

Given under my hand and seal of office this _______day of _________________ A.D. 20_______

________________________________________

Notary Public, State of Texas

________________________________________

(Print name of Notary Public here)

My commission expires the______ day of____________________20______


Notice of Non-Compliance

Notice is hereby given that if you fail to produce this affidavit, signed by an authorized

agent, your failure to do so shall be construed as prima facie evidence that there is no agent

in your department or agency who is authorized to take collection actions under IRC

section 6331, or subtitle A or C, or under Title 26 and shall create the legal presumption or

conclusion that you have been taking illegal collection actions against Robert A. McNeil,

while acting “under color of law” and are engaged in an extortion and fraud scheme

against Robert A. McNeil.

Important footnotes follow;

In Federal Crop Insurance v. Merrill, 332 U.S. 380, the Supreme Court ruled:

“Whatever the form in which the government functions, anyone entering into anarrangement with the government takes a risk of having accurately ascertained that hewho purports to act for the government stays within the bounds of his authority, eventhough the agent himself may be unaware of the limitations upon his authority.” Alsosee Utah Power & Light Co. v. United States, 243 U.S. 389; United States v. Stewart,311 U.S. 60; and generally, in re Floyd Acceptances, 7 Wall. 666.

Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587 (1931):

"Official powers cannot be extended beyond the terms and necessary implications ofthe grant. If broader powers be desirable, they must be conferred by Congress. Theycannot be merely assumed by administrative officers; nor can they be created by thecourts in the proper exercise of their judicial functions," 283 U.S., at 649.

State ex rel McConnell v. First State Bank, 22 Tenn. App. 577, 124 S.W.2d 726, 733 (1938):

"All persons dealing with public officers are bound to take notice of the law prescribingtheir authority and powers."





Exhibit 3

The U.S. Constitution and the 16th Amendment

The Constitution of the United States prohibits a direct un-apportioned tax in two places: Article1, Section 2, Clause 3 and Article 1, Section 9, Clause 4.

Article 1, Section 2, Clause 3: “Representative and direct Taxes shall be apportioned amongthe several states which may be included in this Union, according to their respectiveNumbers…..”


This prohibition against a direct un-apportioned tax remains in full force and effect today.

16th Amendment (Passed by Congress July 2, 1909. Ratified February 3, 1913): The Congressshall have power to lay and collect taxes on incomes, from whatever source derived, withoutapportionment among the several States, and without regard to any census or enumeration.

The Internal Revenue Service falsely states that the Constitution and the 16th Amendmentauthorize a tax on every individual. The following cases show that such claim is false andfraudulent.

STATE OF RHODE ISLAND v. COM. OF MASSACHUSETTS, 37 U.S. 657 (1838): "Thegovernment of the United States may, therefore, exercise all, but no more than all the judicialpower provided for it by the constitution." 37 US 657, 672. (Underline emphasis)

Murdock vs. Com. of Penn., 319 US 105, at 113; 63 S Ct at 875; 87 L Ed at 1298 (1943): “Astate may not impose a charge for the enjoyment of a right granted by the FederalConstitution.”

“Nothing can be clearer than that what the constitution intended to guard against was theexercise by the general government of the power of directly taxing persons and property withinany state through a majority made up from the other states.” Pollock vs. Farmers’ Loan andTrust Co. on original intent, 157 US 429, 582 (1895).

Brushaber vs. Union Pacific, 240 US 1, 12 (1916), on original intent, "... the all embracingcharacter of the two great classifications, including, on the one hand, Direct Taxes subject toapportionment, and on the other, excises, duties, and imposts subject to uniformity, held thelaw to be unconstitutional in substance for these reasons: concluding that the classification ofDirect was adopted for the purpose of rendering it impossible to burden by taxationaccumulations of property, real or personal, except subject to the regulation of apportionment,..." (Underline emphasis)

10th Amendment to the Constitution states: "The powers not delegated to the United Statesby the Constitution, nor prohibited by it to the States, are reserved to the Statesrespectively, or to the People."


Pollock vs. Farmers’ Loan and Trust Co., 157 US 429, 629 (1895): "Excise' is defined to be aninland imposition, sometimes upon the consumption of the commodity, and sometimes uponthe retail sale; sometimes upon the manufacturer, and sometimes upon the vendor.”

Knowlton vs. Moore, 178 US 41, 47 (1900): "Direct Taxes bear upon persons, upon possessionand the enjoyment of rights";

FLINT v STONE TRACY, 220 US 107, 151 - 152 (1911): “Duties and imposts are termscommonly applied to levies made by governments on the importation or exportation ofcommodities. Excises are 'taxes laid upon the manufacture, sale, or consumption ofcommodities within the country, upon licenses to pursue certain occupations, and uponcorporate privileges.' Cooley, Const. Lim. 7th ed. 680.” (Underline emphasis)“Thus, in the matter of taxation, the constitution recognizes the two great classes of direct andindirect taxes, and lays down two rules by which their imposition must be governed, namely,the rule of apportionment as to direct taxes, and the rule of uniformity as to duties, imposts,and excises.” Pollock, 157 US 429, 556 (1895);

The Code of Federal Regulations cites direct and indirect taxes in 19 CFR 351.102 Definitions.

Direct tax. ``Direct tax'' means a tax on wages, profits, interests, rents, royalties, and all otherforms of income, a tax on the ownership of real property, or a social welfare charge.

Indirect tax. `Ìndirect tax'' means a sales, excise, turnover, value added, franchise, stamp,transfer, inventory, or equipment tax, a border tax, or any other tax other than a direct tax oran import charge.

See above Brushaber vs. Union Pacific, 240 US 1, 12 (1916), on original intent.

U.S. vs. Whitridge, 231 US 144, 147 (1913): "As repeatedly pointed out by this court, thecorporation tax law of 1909... imposed an excise or privilege tax, and not in any sense a taxupon property or upon income merely as income.";

MERCHANTS’ LOAN & TRUST CO. v SMIETANKA, 255 US 509, 518 - 519 (1921): “TheCorporation Excise Tax Act of August 5, 1909, was not an income tax law, but a definition ofthe word ‘income’ was so necessary in its administration…” “It is obvious that thesedecisions in principle rule the case at bar if the word ‘income’ has the same meaning in theIncome Tax Act of 1913 that it had in the Corporation Excise Tax Act of 1909, and that it hasthe same scope of meaning was in effect decided in Southern Pacific v Lowe…, where it wasassumed for the purpose of decision that there was no difference in its meaning as used in theact of 1909 and in the Income Tax Act of 1913. There can be no doubt that the word must begiven the same meaning and content in the Income Tax Acts of 1916 and 1917 that it had inthe act of 1913. When we add to this, Eisner v Macomber…the definition of ‘income’ whichwas applied was adopted from Stratton’s Independence v Howbert, supra, arising under theCorporation Excise Tax Act of 1909… there would seem to be no room to doubt that the wordmust be given the same meaning in all the Income Tax Acts of Congress that was given to it inthe Corporation Excise Tax Act, and that what that meaning is has now become definitelysettled by decisions of this Court.” (Underline emphasis)


EISNER v MACOMBER, 252 US 189, 205 - 206 (1920): “The 16th Amendment must beconstrued in connection with the taxing clauses of the original Constitution and the effectattributed to them before the amendment was adopted.”“As repeatedly held, this did not extend the taxing power to new subjects…”“…it becomes essential to distinguish between what is and is not ‘income’, as the term is thereused..”“…we find little to add to the succinct definition adopted in two cases arising under theCorporation Tax Act of 1909…(Stratton’s and Doyle)”

SOUTHERN PACIFIC CO. v. LOWE, 247 U.S. 330, 335 (1918): "We must reject in this case,as we have rejected in cases arising under the Corporation Excise Tax Act of 1909, the broadcontention submitted on behalf of the government that all receipts, everything that comes in,are income within the proper definition of the term 'gross income'. Certainly the term'income' has no broader meaning in the Income Tax Act of 1913 than in that of 1909, and forthe present purpose we assume there is no difference in its meaning as used in the two acts."

FLINT v. STONE TRACY CO., 220 U.S. 107, 162 (1911): “In the case at bar we have alreadydiscussed the limitations which the Constitution imposes upon the right to levy excise taxes,and it could not be said, even if the principles of the 14th Amendment were applicable to thepresent case, that there is no substantial difference between the carrying on of business by thecorporations taxed, and the same business when conducted by a private firm or individual.The thing taxed is not the mere dealing in merchandise, in which the actual transactions maybe the same, whether conducted by individuals or corporations, but the tax is laid upon theprivileges which exist in conducting business with the advantages which inhere in thecorporate capacity of those taxed, and which are not enjoyed by private firms or individuals.”(Underline emphasis)

Stratton's Independence, 231 US 399, 417 (1913): “Evidently Congress adopted the income asthe measure of the tax to be imposed with respect to the doing of business in corporate formbecause it desired that the excise should be imposed, approximately at least, with regard to theamount of benefit presumably derived by such corporations from the current operations of thegovernment. In Flint v. Stone Tracy Co. 220 U.S. 107, 165, 55 S. L. ed. 107, 419, 31 Sup. Ct.Rep. 342, Ann. Cas. 1912 B. 1312, it was held that Congress, in exercising the right to tax alegitimate subject of taxation as a franchise [231 U.S. 399, 417] or privilege, was not debarredby the Constitution from measuring the taxation by the total income, although derived in partfrom property which, considered by itself, was not taxable.” (Underline emphasis);

Sims v. Ahrens et al., 271 SW Reporter at 730: “Income is necessarily the product of the jointefforts of the state and the recipient of the income, the state furnishing the protectionnecessary to enable the recipient to produce, receive, and enjoy it, and a tax thereon in the lastanalysis is simply a portion cut from the income and appropriated by the state as its share…”(Underline emphasis)

Redfield v. Fisher, 135 Or. 180, 292 P. 813, 819 (Ore. 1930): "The individual, unlike thecorporation, cannot be taxed for the mere privilege of existing. The corporation is an artificialentity which owes its existence and charter powers to the state; but the individual's rights tolive and own property are natural rights for the enjoyment of which an excise cannot beimposed." (Underline emphasis)


Doyle v. Mitchell Bros., 247 U.S. 179, 183 (1918): "An examination of these and otherprovisions of the Act (Corporation Excise Tax Act of August 5, 1909) make it plain that thelegislative purpose was not to tax property as such, or the mere conversion of property, but totax the conduct of the business of corporations organized for profit upon the gainful returnsfrom their business operations." (Underline emphasis)

STANTON v BALTIC MINING CO., 240 US 103, 112 -114 (1916): “Not being within theauthority of the 16th Amendment, the tax is therefore, within the ruling of Pollack… a directtax and void for want of compliance with the regulation of apportionment.”; (Underlineemphasis)

STANTON v BALTIC MINING CO., 240 US 103, 112 -114 (1916): “…it was settled inStratton’s Independence… that such tax is not a tax upon property… but a true excise leviedon the result of the business...” (Underline emphasis);

Jerome H. Sheip Co. v. Amos, 100 Fla. 863, 130 So. 699, 705 (1930): "A man is free to layhand upon his own property. To acquire and possess property is a right, not a privilege ... Theright to acquire and possess property cannot alone be made the subject of an excise .... nor,generally speaking, can an excise be laid upon the mere right to possess the fruits thereof, asthat right is the chief attribute of ownership." (Underline emphasis);

U.S. v. BALLARD, 535 F2d 400 (1976): “Gross income and not ‘gross receipts’ is thefoundation of income tax liability…” At 404, “The general term ‘income’ is not defined in theInternal Revenue Code.” At 404, “… ‘gross income’ means the total sales, less the cost ofgoods sold, plus any income from investments and from incidental or outside operations orsources.”

Doyle vs. Mitchell, 247 US 179, at 183, at 185 (1918): "Whatever difficulty there may be abouta precise and scientific definition of 'income"; it imports, as used here, something entirelydistinct from principal or capital either as a subject of taxation or as a measure of the tax;conveying rather the idea of gain or increase arising from corporate activities." (Underlineemphasis);

Evans vs. Gore, 253 US 245, 263 (1920); "... It manifestly disregards the fact that by theprevious ruling it was settled that the provisions of the 16th Amendment conferred no newpower of taxation." (Underline emphasis);

Brushaber vs. Union Pacific, 240 US 1, 12 (1916), "... the whole purpose of the Amendmentwas to relieve all income taxes when imposed from apportionment from a consideration of thesource..." and “…on the contrary shows that it was drawn with the object of maintaining thelimitations of the Constitution and harmonizing their operation.” (Underline emphasis);

Peck vs. Lowe, 247 US 165, 173 (1918); "The Sixteenth Amendment, although referred to inargument, has no real bearing and may be put out of view. As pointed out in recent decisions,it does not extend the taxing power to new or excepted subjects…” (Underline emphasis)

Bowers vs. Kerbaugh-Empire, 271 US 170, 174 (1926), "It was not the purpose or effect of thatAmendment to bring any new subject within the taxing power." (Underline emphasis);


Helvering vs. Edison Brothers, 8th Cir. 133 F2d 575 (1943); "The Treasury cannot byinterpretive regulation make income of that which is not income within the meaning of therevenue acts of Congress, nor can Congress, without apportionment, tax that which is notincome within the meaning of the 16th Amendment.";

Also see Southern Pacific vs. Lowe, 247 US 330, 335 (1918); Butcher's Union vs. Cresent City,111 US 746, 756 (1884) "It has been well said that the property which every man has in hisown labor, as it is the original foundation of all other property, so it is the most sacred andinviolable.";

Pollack, 157 US 429, 556, 573, 582, and 436-441 (1895), “No capitation, or other direct, taxshall be laid, unless in proportion to the census….” And, “As to the states and theirmunicipalities, this (contributions to expense of government) is reached largely through theimposition of direct taxes. As to the federal government, it is attained in part through excisesand indirect taxes upon luxuries and consumption generally, to which direct taxation may beadded to the extent the rule of apportionment allows.”;

Flint vs. Stone Tracy, 220 US 107, 161, 165 (1911); Coppage vs. State of Kansas, 236 US 1, 23-24 (1915), “The court held it unconstitutional, saying: 'The right to follow any lawful vocationand to make contracts is as completely within the protection of the Constitution as the right tohold property free from unwarranted seizure, or the liberty to go when and where one will.One of the ways of obtaining property is by contract. The right, therefore, to contract cannotbe infringed by the legislature without violating the letter and spirit of the Constitution. Everycitizen is protected in his right to work where and for whom he will. He may select not only hisemployer, but also his associates.”(Underline emphasis);

Truax vs. Corrigan, 257 US 312, 348 (1921); “That the right to conduct a lawful business, andthereby acquire pecuniary profits, is property, is indisputable.”

Meyer vs. State of Nebraska, 262 US 390, 399 (1923); Without doubt, it denotes not merelyfreedom from bodily restraint but also the right of the individual to contract, to engage in anyof the common occupations of life..."

Sims vs. Ahrens, 167 Ark. 557; 271 S.W. 720, 730-733 (1925), "The legislature has no powerto declare as a privilege and tax for revenue purposes, occupations that are of commonright..." (Underline emphasis);

Taft vs. Bowers, 278 US 470, 481 (1929); “Under former decisions here the settled doctrine isthat the Sixteenth Amendment confers no power upon Congress to define and tax as incomewithout apportionment something which theretofore could not have been properly regarded asincome.”;

Jack Cole vs. MacFarland, 337 S.W. 2d 453, 455-56 (Tenn. 1960), "Realizing and receivingincome or earnings is not a privilege that can be taxed." ... "Since the right to receive incomeor earnings is a right belonging to every person. This right cannot be taxed as a privilege."(Underline emphasis)


Exhibit 4

Shreveport TimesJuly 13, 2007

Tommy CryerCase #06-50164-01



EXHIBIT

R-28





EXHIBIT

R-29

































EXHIBIT

R-30


Page 2

In spite of my detailed response, and your repeated failure to provide proof of your authority,Mr. Shieldes’ letter instructed me to appear a SECOND time before you at 10:00am on Friday,October 26, 2007 to provide the information requested in the Summons.

It is now apparent that both the Internal Revenue Service and the United States Department ofJustice have ignored the appropriate citations from the United States Constitution, the numerousSupreme Court rulings, citations from the relevant sections of the Internal Revenue Code and theCode of Federal Regulations, and other information I have provided in my defense.

I now offer further proof that I am not required to respond to either the Summons CollectionInformation Statement or the Collection Information Statement for Wage Earners and Self-Employed Individuals.

The Paperwork Reduction Act of 1980 (Act) sets forth a comprehensive scheme to reduce thefederal paperwork burden on the public by requiring an agency to submit any instrument for the"collection of information" - termed an "information collection request" - to the Office ofManagement and Budget (OMB) for approval before it may collect the information.

The Act applies to "information collection requests" by a federal agency which are defined as "awritten report form, application form, schedule, questionnaire, reporting or recordkeepingrequirement, collection of information requirement, or other similar method calling for thecollection of information." 44 U.S.C. 3502(11) (1982 ed., Supp. V).

Typical information collection requests include tax forms, Medicare forms, financial loanapplications, job applications, questionnaires, compliance reports, and tax or business records.

When OMB approves an information collection request, it issues a control number which isplaced on all forms. If a request does not receive OMB approval, it is not issued a controlnumber and the agency is prohibited from collecting the information. See 44 U.S.C.3504(c)(3)(A), 3507(f) (1982 ed.). In addition, if the agency nevertheless promulgates thepaperwork requirement, members of the public may ignore it without risk of penalty. See 44U.S.C. 3512 (1982 ed.). However, this protection of the public is applicable only to information-gathering rules. Section 3512 provides that "no person shall be subject to any penalty for failingto maintain or provide information to any agency if the information collection request involved .. . does not display a current control number assigned by the OMB.” [See Exhibit B]. The Actallows the public, by refusing to answer these information collection requests, to help control“outlaw forms”.

This was affirmed by the United States Supreme Court in Dole v Steelworkers 494 U.S. 26(1990) [See Exhibit C], and more recently, by the United States Court of Appeals Tenth Circuitin United States of America v Jimmy C. Chisum, Case #06-7082, filed September 25, 2007[See Exhibit D].



Exhibit A

Summons Collection Information Statement










Exhibit B

Paperwork Reduction Act

Source: http://uscode.house.gov/download/pls/44C35.txt

-CITE-44 USC Sec. 3512 01/03/05

-EXPCITE-TITLE 44 - PUBLIC PRINTING AND DOCUMENTSCHAPTER 35 - COORDINATION OF FEDERAL INFORMATION POLICYSUBCHAPTER I - FEDERAL INFORMATION POLICY

-HEAD-Sec. 3512. Public protection

-STATUTE-(a) Notwithstanding any other provision of law, no person shall

be subject to any penalty for failing to comply with a collectionof information that is subject to this subchapter if -

(1) the collection of information does not display a validcontrol number assigned by the Director in accordance with thissubchapter; or

(2) the agency fails to inform the person who is to respond tothe collection of information that such person is not required torespond to the collection of information unless it displays avalid control number.

(b) The protection provided by this section may be raised in theform of a complete defense, bar, or otherwise at any time duringthe agency administrative process or judicial action applicablethereto.


Exhibit C

U.S. Supreme CourtDOLE v. STEELWORKERS, 494 U.S. 26 (1990)

494 U.S. 26DOLE, SECRETARY OF LABOR, ET AL. v. UNITED STEELWORKERS OF

AMERICA ETAL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRDCIRCUIT

No. 88-1434.Argued November 6, 1989Decided February 21, 1990

“Paperwork Reduction Act of 1980 (Act). That Act sets forth a comprehensive scheme to reducethe federal paperwork burden on the public by requiring, inter alia, an agency to submit anyinstrument for the "collection of information" - termed an "information collection request" - tothe OMB for approval before it may collect the information.

The Act applies to "information collection requests" by a federal agency which are defined as "awritten report form, application form, schedule, questionnaire, reporting or recordkeepingrequirement, collection of information requirement, or other similar method calling for thecollection of information." 44 U.S.C. 3502(11) (1982 ed., Supp. V).

Typical information collection requests include tax forms, Medicare forms, financial loanapplications, job applications, questionnaires, compliance reports, and tax or business records.

When OMB approves an information collection request, it issues a control number which isplaced on all forms. If a request does not receive OMB approval, it is not issued a controlnumber and the agency is prohibited from collecting the information. See 44 U.S.C.3504(c)(3)(A), 3507(f) (1982 ed.). In addition, if the agency nevertheless promulgates thepaperwork requirement, members of the public may ignore it without risk of penalty. See 44U.S.C. 3512 (1982 ed.). 6 However, this protection of the public is applicable only toinformation-gathering rules. Section 3512 provides that "no person shall be subject to anypenalty for failing to maintain or provide information to any agency if the informationcollection request involved . . . does not display a current control number assigned by the[OMB] . . . ." Ibid. (emphasis added).

[ Footnote 6 ] See id., at 20 (The Act "allow[s] the public, by refusing to answer these[information collection requests], to help control òutlaw forms'").”


Exhibit D

PUBLISH

UNITED STATES COURT OF APPEALSTENTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.JIMMY C. CHISUM,Defendant-Appellant.

No. 06-7082

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. CR-05-43-001-RAW)

FILEDUnited States Court of Appeals

Tenth CircuitSeptember 25, 2007

Elisabeth A. ShumakerClerk of Court

“The PRA, 44 U.S.C. §§ 3501-20, precludes the imposition of any penalty against a person for“failing to comply with a collection of information” if either (1) it “does not display a validcontrol number” or (2) the agency fails to alert the person that he or she “is not required torespond to the collection of information unless it displays a valid control number.” 44 U.S.C. §3512(a). A § 3512(a) defense may be raised at any time. See id. § 3512(b). Tax forms arecovered by the PRA. See Dole v. United Steelworkers of Am., 494 U.S. 26, 33 (1990).(Emphasis added) Mr. Chisum contends that “[s]ince there was no proof that Form 1040 was alawful form under the [PRA], the trial court erred in failing to grant [his] request [at thesentencing hearing] to dismiss the indictment.” Aplt. Br. at 29. But the PRA protects a persononly “for failing to file information. (Emphasis added) It does not protect one who filesinformation which is false.” Collins, 920 F.2d at 630 n.13 (internal quotation marks omitted).The charges against Mr. Chisum were predicated on the filing of false information, not thefailure to file. He is therefore not entitled to relief.”



EXHIBIT

R-31

http://caselaw.findlaw.com

U.S. Supreme Court

DOLE v. STEELWORKERS, 494 U.S. 26 (1990)

494 U.S. 26

DOLE, SECRETARY OF LABOR, ET AL. v. UNITED STEELWORKERS OF AMERICA ETAL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRDCIRCUIT

No. 88-1434.

Argued November 6, 1989Decided February 21, 1990

Pursuant to the Occupational Safety and Health Act of 1970, the Department of Labor (DOL)promulgated a hazard communication standard, which imposed disclosure requirements onmanufacturers aimed at ensuring that their employees were informed of the potential hazards posed bychemicals in the workplace. Among other things, the standard required the manufacturers to labelhazardous chemical containers, conduct training on the chemicals' dangers, and make available toemployees safety data sheets on the chemicals. Respondents and others challenged the standard in theCourt of Appeals. The court held that the Occupational Safety and Health Administration (OSHA) hadnot adequately explained why the standard was limited to the manufacturing sector and twice directedOSHA either to apply it to workplaces in other sectors of the economy or to state why such applicationwould be infeasible. Ultimately, DOL issued a revised standard that applied to worksites in all sectorsand submitted it to the Office of Management and Budget (OMB) for review under the PaperworkReduction Act of 1980 (Act). That Act sets forth a comprehensive scheme to reduce the federalpaperwork burden on the public by requiring, inter alia, an agency to submit any instrument for the"collection of information" - termed an "information collection request" - to the OMB for approvalbefore it may collect the information. OMB disapproved three of the standard's provisions on theground that their requirements were not necessary to protect employees, and DOL published noticewithdrawing the provisions. Respondents sought further relief from the Court of Appeals, whichordered DOL to reinstate the disapproved provisions. The court reasoned that the provisions representedgood-faith compliance by DOL with the court's prior orders, that OMB lacked the authority under theAct to disapprove the provisions, and that, therefore, DOL had no legitimate basis for withdrawingthem.

Held:

The Act does not authorize OMB to review and countermand agency regulations mandating disclosureby regulated entities directly to third parties. Pp. 32-43.

(a) The Act's language indicates that the terms "information collection request" and "collection ofinformation" - which is defined as "the [494 U.S. 26, 27] obtaining or soliciting of facts by an

Page 1 of 17FindLaw: Cases and Codes

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agency through . . . reporting or recordkeeping requirements" - refer solely to the collection ofinformation by, or for the use of, a federal agency, rather than to disclosure rules, which do notresult in information being made available for agency use. Petitioners' interpretation of the abovedefinition - that an agency is "soliciting facts" when it requires someone to communicatespecified data to a third party and that rules requiring labeling, employee training, and thekeeping of accessible data sheets are "reporting and recordkeeping requirements" - is precludedby the language, purpose, and structure of the Act as a whole. Pp. 34-35.

(b) Under the traditional canon of construction requiring that words grouped in a list be given arelated meaning, the phrase "reporting and recordkeeping requirements" would comprise onlyrules requiring information to be sent or made available to a federal agency, not disclosure rules,since the other examples listed are forms for communicating information to a party requestingthat information. P. 36.

(c) Moreover, disclosure rules present none of the problems Congress sought to solve, and noneof the enumerated purposes would be served by subjecting such rules to the Act's provisions. Pp.36-38.

(d) That Congress did not intend the Act to encompass disclosure rules is further revealed by thelanguage and import of other provisions. The internal preliminary steps that an agency must takebefore adopting an information collection request affect agencies only when they gatherinformation for their own use and do not relate to disclosure rules. Likewise, the provisionsgoverning OMB's review of proposed agency information collection requests focus on anagency's ability to use the information, particularly its ability to process it. The Act does notauthorize OMB to determine the usefulness of agency-adopted warning requirements to thosebeing warned. Furthermore, the Act's enforcement mechanism by its terms does not apply todisclosure rules, and its clear legislative history shows that Congress intended the provision toapply to all collections of information subject to the Act. Pp. 38-40.

(e) The Act's legislative history does not support petitioners' contention that Congress intended"collection of information" to include disclosure rules. This Court need not defer to OMB'scontrary interpretation where Congress' intent is clear. Pp. 40-41.

855 F.2d 108, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, STEVENS,O'CONNOR, SCALIA, and KENNEDY, JJ., joined. WHITE, J., filed a dissenting opinion, in whichREHNQUIST, C. J., joined, post, p. 43. [494 U.S. 26, 28]

Jeffrey P. Minear argued the cause for petitioners. With him on the briefs were Acting Solicitor GeneralWallace, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Merrill, LeonardSchaitman, and Marleigh D. Dover.

Laurence Gold argued the cause for respondents. With him on the brief for respondents UnitedSteelworkers of America et al. were George H. Cohen, Jeremiah A. Collins, David C. Vladeck, Alan B.Morrison, and Elihu I. Leifer. Maurice Baskin filed a brief for respondents Associated Builders andContractors, Inc., et al. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Business Council on theReduction of Paperwork by Clark R. Silcox; for the National-American Wholesale Grocers' Association




et al. by Arthur Y. Tsien; for the National Wholesale Druggists' Association by Lawrence W. Bierlein;and for Senator Lawton Chiles by Daniel J. Popeo, Paul D. Kamenar, and Wayne Hartke.

Burton D. Fretz, Toby S. Edelman, and Edward F. Howard filed a brief for the Action Alliance ofSenior Citizens et al. as amici curiae urging affirmance.

JUSTICE BRENNAN delivered the opinion of the Court.

Among the regulatory tools available to Government agencies charged with protecting public health andsafety are rules which require regulated entities to disclose information directly to employees,consumers, or others. Disclosure rules protect by providing access to information about what dangersexist and how these dangers can be avoided. Today we decide whether the Office of Management andBudget (OMB) has the authority under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.(1982 ed. and Supp. V), to review such regulations.

I

In 1983, pursuant to the Occupational Safety and Health Act of 1970 (OSH Act), 84 Stat. 1590, 29U.S.C. 651 et seq. (1982 ed.), which authorizes the Department of Labor (DOL) to set health and safetystandards for workplaces, DOL [494 U.S. 26, 29] promulgated a hazard communication standard. 29 CFR1910.1200 (1984). The standard imposed various requirements on manufacturers aimed at ensuring thattheir employees were informed of the potential hazards posed by chemicals found at their workplace.Specifically, the standard required chemical manufacturers to label containers of hazardous chemicalswith appropriate warnings. "Downstream" manufacturers - commercial purchasers who used thechemicals in their manufacturing plants - were obliged to keep the original labels intact or else transferthe information onto any substitute containers. The standard also required chemical manufacturers toprovide "material safety data sheets" to downstream manufacturers. The data sheets were to list thephysical characteristics and hazards of each chemical, the symptoms caused by overexposure, and anypre-existing medical conditions aggravated by exposure. In addition, the data sheets were to recommendsafety precautions and first aid and emergency procedures in case of over-exposure and provide asource for additional information. Both chemical manufacturers and downstream manufacturers wererequired to make the data sheets available to their employees and to provide training on the dangers ofthe particular hazardous chemicals found at each workplace.

Respondent United Steelworkers of America, among others, challenged the standard in the Court ofAppeals for the Third Circuit. That court held that the Occupational Safety and Health Administration(OSHA) had not adequately explained why the regulation was limited to the manufacturing sector, inview of the OSH Act's clear directive that, to the extent feasible, OSHA is to ensure that no employeesuffers material impairment of health from toxic or other harmful agents. The court directed OSHAeither to apply the hazard standard rules to workplaces in other sectors or to state reasons why suchapplication would not be feasible. United [494 U.S. 26, 30] Steelworkers of America v. Auchter, 763 F.2d728, 739 (1985).

When DOL responded by initiating an entirely new rulemaking proceeding, the union and itscopetitioners sought enforcement of the earlier order. The Third Circuit directed DOL, under threat ofcontempt, to publish in the Federal Register within 60 days either a hazard communication standardapplicable to all workers covered by the OSH Act or a statement of reasons why such a standard wasnot feasible, on the basis of the existing record, as to each category of excluded workers. UnitedSteelworkers of America v. Pendergrass, 819 F.2d 1263, 1270 (1987).




DOL complied by issuing a revised hazard communication standard that applied to work sites in allsectors of the economy. See 52 Fed. Reg. 31852 (1987). At the same time, DOL submitted the standardto OMB for review of any paperwork requirements. After holding a public hearing, OMB approved allbut three of its provisions. OMB rejected a requirement that employees who work at multiemployersites (such as construction sites) be provided with data sheets describing the hazardous substances towhich they were likely to be exposed, through the activities of any of the companies working at thesame site. The provision permitted employers either to exchange data sheets and make them available attheir home offices or to maintain all relevant data sheets at a central location on the work site. 29 CFR1910.1200(e)(2) (1988). OMB also disapproved a provision exempting consumer products used in theworkplace in the same manner, and resulting in the same frequency and duration of exposure, as innormal consumer use. 1910.1200(b)(6)(vii). Finally, OMB vetoed an exemption for drugs sold in solid,final form for direct administration to patients. 1910.1200(b)(6)(viii). See 52 Fed. Reg. 46076 (1987).

OMB disapproved these provisions based on its determination that the requirements were not necessaryto protect employees. 1 [494 U.S. 26, 31] OMB's objection to the exemptions was that they were toonarrow, and that the standard, therefore, applied to situations in which disclosure did not benefitemployees. 2 Id., at 46077-46078. DOL disagreed with OMB's assessment, but it published notice thatthe three provisions were withdrawn. DOL added its reasons for believing that the provisions werenecessary, proposed that they be retained, and invited public comment. 53 Fed. Reg. 29822 (1988).

The union and its copetitioners responded by filing a motion for further relief with the Third Circuit.That court ordered DOL to reinstate the OMB-disapproved provisions. The court reasoned that theprovisions represented goodfaith compliance by DOL with the court's prior orders, that [494 U.S. 26, 32]

OMB lacked authority under the Paperwork Reduction Act to disapprove the provisions, and that,therefore, DOL had no legitimate basis for withdrawing them. United Steelworkers of America v.Pendergrass, 855 F.2d 108 (1988).

Petitioners sought review in this Court. We granted certiorari to answer the important question whetherthe Paperwork Reduction Act authorizes OMB to review and countermand agency regulationsmandating disclosure by regulated entities directly to third parties. 490 U.S. 1064 (1989). We hold thatthe Paperwork Reduction Act does not give OMB that authority, and therefore affirm.

II

The Paperwork Reduction Act was enacted in response to one of the less auspicious aspects of theenormous growth of our federal bureaucracy: its seemingly insatiable appetite for data. Outcries fromsmall businesses, individuals, and state and local governments, that they were being buried underdemands for paperwork, led Congress to institute controls. 3 Congress designated OMB the overseer ofother agencies with respect to paperwork and set forth a comprehensive scheme designed to reduce thepaperwork burden. The Act charges OMB with developing uniform policies for efficient informationprocessing, storage, and transmittal systems, both within and among agencies. OMB is directed toreduce federal collection of all information by set percentages, establish a Federal Information LocatorSystem, and develop and implement procedures for guarding the privacy of those providing confidentialinformation. See 44 U.S.C. 3504, 3505, 3511 (1982 ed. and Supp. V).

The Act prohibits any federal agency from adopting regulations which impose paperwork requirementson the public unless the information is not available to the agency from another source within theFederal Government, and the agency [494 U.S. 26, 33] must formulate a plan for tabulating theinformation in a useful manner. Agencies are also required to minimize the burden on the public to theextent practicable. See 44 U.S.C. 3507(a) (1) (1982 ed. and Supp. V). In addition, the Act institutes a




second layer of review by OMB for new paperwork requirements. After an agency has satisfied itselfthat an instrument for collecting information - termed an "information collection request" - is needed,the agency must submit the request to OMB for approval. See 44 U.S.C. 3507(a)(2) (1982 ed., Supp.V). If OMB disapproves the request, the agency may not collect the information. See 44 U.S.C. 3507(a)(3) (1982 ed.).

Typical information collection requests include tax forms, Medicare forms, financial loan applications,job applications, questionnaires, compliance reports, and tax or business records. See S. Rep., at 3-4.These information requests share at least one characteristic: The information requested is provided to afederal agency, either directly or indirectly. 4 Agencies impose the requirements on private parties inorder to generate information to be used by the agency in pursuing some other purpose. For instance,agencies use these information requests in gathering background on a particular subject to develop theexpertise with which to devise or finetune appropriate regulations, amassing diffuse data for processinginto useful statistical form, and monitoring business records and compliance reports for signs or proofof nonfeasance to determine when to initiate enforcement measures.

By contrast, disclosure rules do not result in information being made available for agency personnel touse. The promulgation of a disclosure rule is a final agency action that represents a substantiveregulatory choice. An agency charged with protecting employees from hazardous chemicals has a [494

U.S. 26, 34] variety of regulatory weapons from which to choose: It can ban the chemical altogether; itcan mandate specified safety measures, such as gloves or goggles; or it can require labels or otherwarnings alerting users to dangers and recommended precautions. An agency chooses to impose awarning requirement because it believes that such a requirement is the least intrusive measure that willsufficiently protect the public, not because the measure is a means of acquiring information useful inperforming some other agency function.

No provision of the Act expressly declares whether Congress intended the Paperwork Reduction Act toapply to disclosure rules as well as information-gathering rules. The Act applies to "informationcollection requests" by a federal agency which are defined as

"a written report form, application form, schedule, questionnaire, reporting or recordkeepingrequirement, collection of information requirement, or other similar method calling for thecollection of information." 44 U.S.C. 3502(11) (1982 ed., Supp. V).

"Collection of information," in turn, is defined as

"the obtaining or soliciting of facts or opinions by an agency through the use of writtenreport forms, application forms, schedules, questionnaires, reporting or recordkeepingrequirements, or other similar methods calling for either -

"(A) answers to identical questions posed to, or identical reporting or recordkeepingrequirements imposed on, ten or more persons, other than agencies, instrumentalities, oremployees of the United States; or

"(B) answers to questions posed to agencies, instrumentalities, or employees of the UnitedStates which are to be used for general statistical purposes." 44 U.S.C. 3502(4) (1982 ed.).

Petitioners urge us to read the words "obtaining or soliciting of facts by an agency through . . . reportingor recordkeeping [494 U.S. 26, 35] requirements" as encompassing disclosure rules. They contend that anagency is "soliciting facts" when it requires someone to communicate specified data to a third party and




that the hazard communication standard's rules are "reporting and recordkeeping requirements" withinthe meaning of the Act because the employer is required to report hazard information to employees.Petitioners submit that the provisions requiring labeling and employee training are "reportingrequirements" and that the provision requiring accessible data sheets containing health and safetyinformation is a "recordkeeping requirement." We believe, however, that the language, structure, andpurpose of the Paperwork Reduction Act reveal that petitioners' position is untenable because Congressdid not intend the Act to encompass these or any other third-party disclosure rules.

"On a pure question of statutory construction, our first job is to try to determine congressionalintent, using traditional tools of statutory construction." NLRB v. Food and Commercial Workers,484 U.S. 112, 123 (1987). Our "starting point is the language of the statute," Schreiber v.Burlington Northern, Inc., 472 U.S. 1, 5 (1985), but "ìn expounding a statute, we are not guidedby a single sentence or member of a sentence, but look to the provisions of the whole law, and toits object and policy.'" Massachusetts v. Morash, 490 U.S. 107, 115 (1989), quoting Pilot LifeIns. Co. v. Dedeaux, 481 U.S. 41, 51 (1987). See also K mart Corp. v. Cartier, Inc., 486 U.S. 281,291 (1988) (same).

Petitioners' interpretation of "obtaining or soliciting facts by an agency through . . . reporting orrecordkeeping requirements" is not the most natural reading of this language. The commonsense viewof "obtaining or soliciting facts by an agency" is that the phrase refers to an agency's efforts to gatherfacts for its own use and that Congress used the word "solicit" in addition to the word "obtain" in orderto cover information requests that rely on the voluntary cooperation of information suppliers as well asrules which make compliance [494 U.S. 26, 36] mandatory. Similarly, data sheets consisting of advisorymaterial on health and safety do not fall within the normal meaning of "records," and a Government-imposed reporting requirement customarily requires reports to be made to the Government, not trainingand labels to be given to someone else altogether.

That a more limited reading of the phrase "reporting and recordkeeping requirements" was intendedderives some further support from the words surrounding it. The traditional canon of construction,noscitur a sociis, dictates that "`words grouped in a list should be given related meaning.'"Massachusetts v. Morash, supra, at 114-115, quoting Schreiber, supra, at 8. The other examples listed inthe definitions of "information collection request" and "collection of information" are forms forcommunicating information to the party requesting that information. If "reporting and recordkeepingrequirements" is understood to be analogous to the examples surrounding it, the phrase would compriseonly rules requiring information to be sent or made available to a federal agency, not disclosure rules.

The same conclusion is produced by a consideration of the object and structure of the Act as a whole.See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220 -221 (1986) (concluding that the meaningof a phrase was clarified by the language and purpose of the Act as a whole). Particularly useful is theprovision detailing Congress' purposes in enacting the statute. The Act declares that its purposes are:

"(1) to minimize the Federal paperwork burden for individuals, small businesses, State and localgovernments, and other persons;

"(2) to minimize the cost to the Federal Government of collecting, maintaining, using, anddisseminating information;

"(3) to maximize the usefulness of information collected, maintained, and disseminated by theFederal Government; [494 U.S. 26, 37]




"(4) to coordinate, integrate and, to the extent practicable and appropriate, make uniform Federalinformation policies and practices;

"(5) to ensure that automatic data processing, telecommunications, and other informationtechnologies are acquired and used by the Federal Government in a manner which improvesservice delivery and program management, increases productivity, improves the quality ofdecisionmaking, reduces waste and fraud, and wherever practicable and appropriate, reduces theinformation processing burden for the Federal Government and for persons who provideinformation to and for the Federal Government; and

"(6) to ensure that the collection, maintenance, use and dissemination of information by theFederal Government is consistent with applicable laws relating to confidentiality, including . . .the Privacy Act." 44 U.S.C. 3501 (1982 ed. and Supp. V) (emphasis added).

Disclosure rules present none of the problems Congress sought to solve through the PaperworkReduction Act, and none of Congress' enumerated purposes would be served by subjecting disclosurerules to the provisions of the Act. The statute makes clear that the first purpose - avoiding a burden onprivate parties and state and local governments - refers to avoiding "the time, effort, or financialresources expended by persons to provide information to a Federal agency." 44 U.S.C. 3502(3) (1982ed.) (defining "burden") (emphasis added). Because Congress expressed concern only for the burdenimposed by requirements to provide information to a federal agency, and not for any burden imposedby requirements to provide information to a third party, OMB review of disclosure rules would notfurther this congressional aim.

Congress' second purpose - minimizing the Federal Government's cost of handling information - alsowould not be advanced by review of disclosure rules because such rules do not impose any informationprocessing costs on the Federal [494 U.S. 26, 38] Government. Because the Federal Government is notthe consumer of information "requested" by a disclosure rule nor an intermediary in its dissemination,OMB review of disclosure rules would not serve Congress' third, fourth, fifth, or sixth purposes. Thus,nothing in Congress' itemized and exhaustive textual description of its reasons for enacting thisparticular Act indicates any legislative purpose to have OMB screen proposed disclosure rules. We findthis to be strong evidence that Congress did not intend the Act to authorize OMB review of suchregulations.

This conclusion is buttressed by the language and import of other provisions of the Act. For instance,every federal agency is required to take three internal preliminary steps before adopting an informationcollection request. The agency must take action to

"(A) eliminate, through the use of the Federal Information Locator System and other means,information collections which seek to obtain information available from another source within theFederal Government;

"(B) reduce to the extent practicable and appropriate the burden on persons who will provideinformation to the agency; and

"(C) formulate plans for tabulating the information in a manner which will enhance its usefulnessto other agencies and to the public." 44 U.S.C. 3507(a)(1) (1982 ed.) (emphasis added).

These requirements affect agencies only when they gather information for their own use. The firstdirects an agency not to ask for information that it can acquire from another agency. 5 The second




requires an agency to consider the burden it places on the public, but only as to information provided tothe agency. The third encourages an agency to [494 U.S. 26, 39] make the information it has obtaineduseful to others as well. Significantly, no provision relates to disclosure rules. For example, noprovision requires agencies to ensure that a paperwork requirement is effective or that its burden on oneparty is not disproportionate to the benefit afforded a third party.

Also instructive are the provisions governing OMB's review of proposed agency information collectionrequests that cast that review in terms applicable to information-gathering regulations but not todisclosure rules. OMB's examination is limited to "determining whether the collection of informationby an agency is necessary for the proper performance of the functions of the agency, including whetherthe information will have practical utility for the agency." 44 U.S.C. 3504(c) (2) (1982 ed.) (emphasisadded). "Practical utility" is defined in the statute as "the ability of an agency to use information itcollects, particularly the capability to process such information in a timely and useful fashion." 44U.S.C. 3502(16) (1982 ed., Supp. V) (emphasis added).

However, in reviewing the disclosure rules at issue in this case, OMB was unable to consider whatOSHA planned to do with information regarding hazardous chemicals at the various work sites, becauseOSHA was not to be the recipient of this information. Nothing was to be given to OSHA to process - ina timely fashion or otherwise. OMB instead disapproved the three OSHA rules on the ground that themandated disclosures would be of little benefit to the employees OSHA sought to protect. But there isno indication in the Paperwork Reduction Act that OMB is authorized to determine the usefulness ofagency-adopted warning requirements to those being warned. To the contrary, Congress focusedexclusively on the utility of the information to the agency. And the only criteria specified are whetherthe agency can process the information quickly and use it in pursuit of its substantive mandate. [494 U.S.26, 40]

Yet a third provision reinforcing our conclusion that disclosure rules are not subject to the PaperworkReduction Act is the statute's mechanism for assuring agency compliance with its terms. When OMBapproves an information collection request, it issues a control number which is placed on all forms. If arequest does not receive OMB approval, it is not issued a control number and the agency is prohibitedfrom collecting the information. See 44 U.S.C. 3504(c)(3)(A), 3507(f) (1982 ed.). In addition, if theagency nevertheless promulgates the paperwork requirement, members of the public may ignore itwithout risk of penalty. See 44 U.S.C. 3512 (1982 ed.). 6 However, this protection of the public isapplicable only to information-gathering rules. Section 3512 provides that "no person shall be subject toany penalty for failing to maintain or provide information to any agency if the information collectionrequest involved . . . does not display a current control number assigned by the [OMB] . . . ." Ibid.(emphasis added).

While the grammar of this text can be faulted, its meaning is clear: the public is protected under thePaperwork Reduction Act from paperwork regulations not issued in compliance with the Act, onlywhen those regulations dictate that a person maintain information for an agency or provide informationto an agency. By its very terms, the statute's enforcement mechanism does not apply to rules whichrequire disclosure to a third party rather than to a federal agency. Thus either Congress intended thePaperwork Reduction Act to cover information-gathering rules only, or Congress intended the Act tocover disclosure rules but intended to exempt them from this agency compliance mechanism. Becausethe latter is counterintuitive and contrary to clear legislative history, 7 3512 is further evidence thatCongress did not intend the Act to cover disclosure rules. [494 U.S. 26, 41]

III




For the foregoing reasons, we find that the terms "collection of information" and "informationcollection request," when considered in light of the language and structure of the Act as a whole, refersolely to the collection of information by, or for the use of, a federal agency; they cannot reasonably beinterpreted to cover rules mandating disclosure of information to a third party. In addition, we findunpersuasive petitioners' claims that there is a "clearly expressed legislative intention [to the] contrary,"see INS v. Cardoza-Fonseca, 480 U.S. 421, 432 , n. 12 (1987).

Petitioners rely on statements from various stages of the Act's legislative history as evidence thatCongress intended "collection of information" to include disclosure rules. 8 However, the statementsshow merely that the Act was intended [494 U.S. 26, 42] to reach not only statistical compilations butalso information collected for law enforcement purposes and information filed with an agency forpossible dissemination to the public (i. e., when the agency is an intermediary in the process of datadissemination). This sheds no light on the issue before this Court: Whether the Act reaches rulesmandating disclosure by one party directly to a third party. Moreover, other statements in theCommittee Reports reinforce respondents' position. 9

Because we find that the statute, as a whole, clearly expresses Congress' intention, we decline to deferto OMB's interpretation. 10 See Board of Governors of Federal Reserve [494 U.S. 26, 43] System v.Dimension Financial Corp., 474 U.S. 361, 368 (1986) ("The traditional deference courts pay to agencyinterpretation is not to be applied to alter the clearly expressed intent of Congress"); Chevron U.S. A.Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 -843 (1984) ("If the intent ofCongress is clear, that is the end of the matter"). We affirm the judgment of the Third Circuit insofar asit held that the Paperwork Reduction Act does not give OMB the authority to review agency rulesmandating disclosure by regulated entities to third parties. 11

It is so ordered.

Footnotes

[ Footnote 1 ] OMB concluded that workers on multiemployer sites would be adequately protected ifeach employer kept chemical manufacturers' labels intact, supplied data sheets to other employers onthe site on request, and taught its own employees about the chemicals with which they worked directlyand explained how to recognize hazards likely to be introduced by other employers. 52 Fed. Reg. 46077(1987).

[ Footnote 2 ] The standard promulgated by OSHA had exempted, from any otherwise applicablelabeling requirements, all food and drugs subject to the labeling requirements of the Federal Food,Drug, and Cosmetic Act, 52 Stat. 1040, as amended, 21 U.S.C. 301 et seq. (1982 ed.), and all consumerproducts or hazardous substances subject to a consumer product safety standard or labelingrequirements of the Consumer Product Safety Act, 86 Stat. 1207, as amended, 15 U.S.C. 2051 et seq.,or the Federal Hazardous Substances Act, 74 Stat. 372, as amended, 15 U.S.C. 1261 et seq., orregulations issued under those Acts by the Consumer Product Safety Commission. 29 CFR 1910.1200(b)(5)(ii), 1910.1200(b)(5)(iv) (1988).

OMB wanted OSHA to exempt, in addition, all products packaged in the same form and concentrationas a consumer product, whether or not used for the same purpose or with the same exposure, as well asall Food and Drug Administration regulated drugs handled in the nonmanufacturing sector. 52 Fed.Reg. 46078 (1987). OMB drew its recommended exemption for consumer products from 311(e)(3) ofthe Superfund Amendments and Reauthorization Act of 1986, 100 Stat. 1615, 42 U.S.C. 9601 et seq.(1982 ed., Supp. V), a provision aimed at informing the general public about chemicals that could cause




hazardous conditions during an emergency situation.

[ Footnote 3 ] See S. Rep. No. 96-930, pp. 3-4, 8 (1980) (S. Rep.); H. R. Rep. No. 96-835, pp. 3, 17(1980) (H. R. Rep.).

[ Footnote 4 ] Tax and business records are examples of information provided only indirectly to anagency. In these cases, the governing regulations do not require records to be sent to the agency; theyrequire only that records be kept on hand for possible examination as part of a compliance review.

[ Footnote 5 ] See H. R. Rep., at 28 (the agency "is to eliminate any information collections which seekto obtain information available from other sources within the Federal Government").

[ Footnote 6 ] See id., at 20 (The Act "allow[s] the public, by refusing to answer these [informationcollection requests], to help control òutlaw forms'").

[ Footnote 7 ] See S. Rep., at 52-53 ("The only collections of information by a Federal agency whichare exempted, and for which a person or persons could not claim protection under section 3512, arethose collections of information which this chapter does not apply to and are exempted by section 3518[certain law enforcement and national security exceptions]"). See also H. R. Rep., at 30.

[ Footnote 8 ] See Report of Commission on Federal Paperwork, The Reports Clearance Process 1, 43(Sept. 9, 1977) (explaining that the Federal Trade Commission did not interpret the Federal Reports Actof 1942, predecessor to the Paperwork Reduction Act, to apply to information it collected for lawenforcement purposes nor did the Securities and Exchange Commission interpret that Act to apply toinformation the SEC collected for possible disclosure by the agency to the public); Paperwork andRedtape Reduction Act of 1979: Hearing on S. 1411 before the Subcommittee on Federal SpendingPractices and Open Government of the Senate Committee on Governmental Affairs, 96th Cong., 1stSess., 87 (1979) (testimony of SEC Commissioner Evans that the definition of collection of informationin the Federal Reports Act was limited to collection for statistical purposes; testimony of Senator Chilesthat Congress was not trying to cripple the mission of the agencies but was "trying to put some governoron this thirst for information"); S. Rep., at 39-40 (explaining that the Senate had rejected the SEC'sattempt to limit "collection of information" to collection for statistical purposes, that the definitionextended to documents filed with the SEC for possible disclosure to the public by the SEC, and thatOMB's review of these filing requirements should consider whether the SEC could use the data either tocarry out its regulatory functions or to make it available to the public).

[ Footnote 9 ] See, e. g., H. R. Rep., at 3 (the Act resulted from "a growing concern that the way theGovernment collects, uses, and disseminates information must be improved") (emphasis added); id., at22 (explaining the "practical utility" review as a response to the tendency of agencies to "collect reamsof data on the basis of need only to store the data unused" thereby imposing "an unnecessary reportingburden on those individuals or organizations being asked to provide it"); S. Rep., at 11 ("[T]he essentialpurpose of the legislation [is] to reduce the burden on the public in providing information to the FederalGovernment") (emphasis added); id., at 46 ("A Federal agency is considered to `sponsor' the collectionof information if the agency itself collects information or if it uses a procurement contract and thecontractor collects information for the agency"); Senate Hearings, supra, at 40-41 (testimony of WayneG. Granquist, Assoc. Dir., OMB) ("No one questions the basic need of the government for informationto plan, make policy decisions, operate and evaluate programs, and perform necessary research. Thequestion is rather how much information is essential").

[ Footnote 10 ] OMB's assumption of the authority to review the three provisions of the hazard




communication standard at issue was consistent with its own regulations. See 5 CFR 1320.7(c)(2)(1988) ("Requirements by an agency for a person to obtain or compile information for the purpose ofdisclosure to members of the public or to the public at large, through posting, notification, labeling, orsimilar disclosure requirements, constitute the `collection of information' whenever the samerequirement to obtain or compile information would be a `collection of information' if the informationwere directly provided to the agency"); 1320.7(q) (defining "reporting requirement" as "a requirementimposed by an agency on persons to provide information to another person or to the agency"). [494 U.S.

26, 43] Petitioners' argument that we should defer to OMB's interpretation, as expressed in theseregulations, is foreclosed by our finding of clear congressional intent.

[ Footnote 11 ] We do not reach the question whether other provisions of the hazard communicationstandard might legitimately be subject to OMB review under the Paperwork Reduction Act. See 29CFR 1910.1200(e) (1988) (requiring employers to develop written programs describing theircompliance and make them available to the agency on request); 1910.1200(g)(11) (requiring employersto make their material safety data sheets available to the agency on request). Only the three provisionsOMB disapproved are before us today.

JUSTICE WHITE, with whom THE CHIEF JUSTICE joins, dissenting.

The Court's opinion today requires more than 10 pages, including a review of numerous statutoryprovisions and legislative history, to conclude that the Paperwork Reduction Act of 1980 (PRA or Act)is clear and unambiguous on the question whether it applies to agency directives to private parties tocollect specified information and disseminate or make it available to third parties. On the basis of thatquestionable conclusion, the Court refuses to give any deference to the Office of Management andBudget's (OMB's) longstanding and consistently applied interpretation that such requirements fallwithin the Act's scope. Because in my view the Act is not clear in that regard and deference is dueOMB under [494 U.S. 26, 44] Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.837 (1984), I respectfully dissent.

In Chevron, supra, we set forth the general principles to be applied in cases such as this one:

"When a court reviews an agency's construction of the statute which it administers, it isconfronted with two questions. First, always, is the question whether Congress has directlyspoken to the precise question at issue. If the intent of Congress is clear, that is the end of thematter; for the court, as well as the agency, must give effect to the unambiguously expressedintent of Congress. If, however, the court determines Congress has not directly addressed theprecise question at issue, the court does not simply impose its own construction on the statute, aswould be necessary in the absence of an administrative interpretation. Rather, if the statute issilent or ambiguous with respect to the specific issue, the question for the court is whether theagency's answer is based on a permissible construction of the statute." Id., at 842-843 (footnotesomitted).

As the Court acknowledges, there is no question in this case that OMB is the agency charged withadministering the PRA. Unless Congress has directly spoken to the issue whether an agency request thatprivate parties disclose to, or maintain for, third parties information such as material safety data sheets(MSDS's) is an "information collection request" or a "recordkeeping requirement" within the Act'sscope, OMB's interpretation of the Act is entitled to deference, provided of course that it is based on apermissible construction of the statute.

The Court concedes that the Act does not expressly address "whether Congress intended the Paperwork




Reduction Act to apply to disclosure rules as well as information-gathering rules." Ante, at 34.Curiously, the Court then almost immediately asserts that interpreting the Act to provide coverage fordisclosure requests is untenable. Ante, at [494 U.S. 26, 45] 35. The plain language of the Act, however,suggests the contrary. Indeed, the Court appears to acknowledge that petitioners' interpretation of theAct, although not the one the Court prefers, is nonetheless reasonable: "Petitioners' interpretation . . . isnot the most natural reading of this language." Ibid. (emphasis added). The Court goes on to arrive atwhat it believes is the most reasonable of plausible interpretations; it cannot rationally conclude that itsinterpretation is the only one that Congress could possibly have intended. The Court neglects to evenmention that the only other Court of Appeals besides the Third Circuit in this case to address a similarquestion rejected the interpretation that the Court now adopts. 1 In addition, there is evidence that [494

U.S. 26, 46] for years OMB has been reviewing proposals similar to the standard at issue in this caseroutinely and without objection from other agencies. 2 As I see it, by independently construing thestatute rather than asking if the agency's interpretation is a permissible one and deferring to it if that isthe case, the Court's approach is clearly contrary to Chevron.

The hazard communication standards propounded by the Occupational Safety and HealthAdministration (OSHA) require chemical manufacturers to develop hazard information about theirproducts, to adequately label such products, and to prepare for their products MSDS's to be sent todownstream employers who utilize those products. See 29 CFR 1910.1200(d), (f) and (g) (1988). Thoseemployers are directed to prepare written hazard communication programs that include a list ofhazardous chemicals known to be present at the work site, 1910.1200(e); to ensure that containers areproperly labeled, 1900.1200(f); and to collect, maintain, and make available to their employees copiesof MSDS's with respect to hazardous chemicals that they use in their business, 1910.1200(g).

OMB, as I see it, reasonably concluded that these requirements were subject to its approval under thePRA, which [494 U.S. 26, 47] makes OMB responsible for implementing the statutory purpose ofminimizing the burden and maximizing the usefulness of the Government's information collectionrequirements. OMB is instructed to do this through a process of reviewing agency "informationcollection requests" in order to determine whether "the collection of information by an agency isnecessary for the proper performance of the functions of the agency, including whether the informationwill have practical utility for the agency." 44 U.S.C. 3504(c)(2) (1982 ed.).

An "information collection request" is defined as "a written report form, application form, schedule,questionnaire, reporting or recordkeeping requirement, collection of information requirement, or similarmethod calling for the collection of information." 44 U.S.C. 3502(11) (1982 ed., Supp V). A"recordkeeping requirement" is defined as "a requirement imposed by an agency on persons to maintainspecified records." 3502(17). "Collection of information" is defined as

"the obtaining or soliciting of facts or opinions by an agency through the use of written reportforms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, orother similar methods calling for either -

"(A) answers to identical questions posed to, or identical reporting or recordkeeping requirementsimposed on, ten or more persons, other than agencies, instrumentalities, or employees of theUnited States; or

"(B) answers to questions posed to agencies, instrumentalities, or employees of the United Stateswhich are to be used for general statistical purposes." 44 U.S.C. 3502(4) (1982 ed.).

"Reporting requirement" is not specifically defined by the statute.




As it is directed to do by the PRA, see 3516, OMB has issued regulations and rules for exercising itsauthority under the statute. Although the statute itself does not in so many [494 U.S. 26, 48] words reachagency directives to collect, disseminate, or make available to third parties specified information that isnot delivered to the agency itself, OMB regulations so interpret the Act. The regulations also plainlyreach the hazard communication standards that OSHA has presented for OMB's approval in this case. 3

[494 U.S. 26, 49]

I cannot say that these regulations, so far as they are involved here, are inconsistent with the Act. It isnot unreasonable to characterize as a "reporting requirement" an employer's obligation to disclosehazard information, by labeling or making MSDS's available, especially in light of the absence of adefinition in the statute. Nor is it unreasonable to characterize the obligation to compile copies ofMSDS's as a "recordkeeping requirement," or the directive to prepare a hazard communication programwith its list of dangerous chemicals as an "information collection request" within the meaning of 44U.S.C. 3502 (1982 ed., Supp. V). Since that definitional section, after including reporting andrecordkeeping requirements, concludes with the words "or other similar method calling for thecollection of information," it is tenable to conclude that reporting and recordkeeping are among theinformation collection requests requiring OMB approval.

Section 3502(4) likewise defines "collection of information" as including reporting and recordkeepingrequirements, but that definition begins with the words "the obtaining or soliciting of facts or opinionsby an agency" through written report forms, etc. The Court's argument is that this definition limits thePRA to facts or opinions obtained by an agency for its own use and hence excludes recordkeeping,reporting requirements, and information collection designed to inform or benefit third parties such asemployees, customers, or the public. This argument, however, pays too little attention to the preciselanguage of the provision. First, an agency does not "obtain" information when it imposes arecordkeeping requirement. Second, 3502(4) not only speaks of "obtaining" facts and opinions by anagency but of the "soliciting" of facts and opinions by an agency. The word "soliciting" would appear tomean something beside "obtaining" and is commonly understood as including a request for anotherperson to perform [494 U.S. 26, 50] some act. It is not unreasonable therefore to construe this language asextending OMB's authority to requests for recordkeeping, reporting, and information collection that isintended to benefit third parties but is not delivered to the agency itself.

Furthermore, the Court does not explain why if "information collection requests" and the "collection ofinformation" are limited to agency directives that information be provided to the agency, the statutorydefinitions of those terms explicitly include "recordkeeping requirement[s]." See 44 U.S.C. 3502(4) and(11) (1982 ed. and Supp. V). One response might be that Congress intended to limit the term"recordkeeping requirement" to records prepared for the agency and which must be provided to theagency upon request. But Congress specifically defined the term "recordkeeping requirement" withoutincluding such a limitation and it is unlikely Congress intended to imply such a limitation. An agencycan certainly "use" information without collecting and analyzing it or periodically auditing it forcompliance or enforcement purposes. It can hardly be said that requiring recordkeeping and reportingfor the benefit of employees is not useful to the agency or an appropriate means for the agency to carryout its obligation to provide a safe workplace.

It is common ground in this case that if the information required to be reported or made available toemployees were first sent to the agency and then distributed to employees, there would be no questionabout OMB's authority. Likewise, as I understand it, the mere fact that the records ordered to be keptare not physically delivered to the agency does not bar OMB jurisdiction, so long as the records arekept for examination and use by the agency. The Court concedes as much, noting that requests forinformation provided indirectly to an agency, such as requirements that tax and business records be kept




on hand, fall within the PRA's scope because those documents are subject to "possible examination aspart of a compliance review." Ante, at 33, n. 4. [494 U.S. 26, 51]

In support of its argument that the Act applies only when information is actually transmitted to anagency, the Court points to language in the Act's general statement of purpose indicating that Congresswas concerned with minimizing "the cost to the Federal Government,'" maximizing "`the usefulness ofinformation collected, maintained, and disseminated by the Federal Government.'" and reducing thepaperwork burdens "`for persons who provide information to and for the Federal Government.'" Ante,at 36-37 (emphasis deleted), quoting 44 U.S.C. 3501 (1982 ed. and Supp. V). The Court ignores,however, the very first statement of purpose in the Act, which declares that Congress intends that theAct "minimize the Federal paperwork burden for individuals, small businesses, State and localgovernments, and other persons." 44 U.S.C. 3501(1) (1982 ed.). Reading the Court's discussion of theAct, one might think that Congress was only concerned with minimizing the Government's costs andreducing the paperwork burdens on federal agency employees who are forced to process massiveamounts of information. Common sense and 3501(1) clearly belie that conclusion. 4 Complaints fromthe private sector about bureaucratic red tape far predate the enactment of the PRA.

Also curious is the Court's reliance on the statement that one purpose of the Act was to reduce thepaperwork burden "for persons who provide information to and for the Federal Government." 44 U.S.C.3501(5) (1982 ed., Supp. V) (emphasis added). Aside from reiterating the point just made regarding theAct's focus on reducing the paperwork [494 U.S. 26, 52] burdens on the private sector, the natural readingof the statement is that Congress recognized that agencies may sometimes request that private partiesprovide information to others as part of an agency's administration of its duties. It is surely reasonableto conclude that the word "for" means something different than the word "to" and that it includes notonly situations in which private parties must keep records available for use and review by an agency,but also requirements that private parties collect and provide information to third parties.

Contrary to the Court's assertions, disclosure requests do present some of the problems Congress soughtto solve through the PRA. The Court concedes that Congress intended the Act to apply wheninformation is "filed with an agency for possible dissemination to the public (i. e., when the agency isan intermediary in the process of data dissemination)." Ante, at 42. But if that is true, how can it be soclear that Congress intended to permit agencies to bypass the Act by simply requesting private parties tosubmit information directly to third parties? From a policy perspective, and certainly from the privatesector's perspective, it makes little difference whether an agency collects information and thendisseminates it or requires those in possession of the information to submit it directly to the relevantthird parties. In fact, the latter option generally will impose greater paperwork burdens on privateparties, although either choice results in a federal agency imposing major paperwork burdens on theprivate sector. The Court's response is that one approach imposes costs on the Federal Government andthe other does not. But that distinction is flawed because it promotes a secondary objective of the PRAand ignores what I consider to have been Congress' primary objective in enacting the statute.

In addition, the legislative history on which the Court relies is unconvincing. Like the statute itself, thelegislative history never expressly addresses the question of disclosure [494 U.S. 26, 53] requirements. Ofcourse, the Court can find and cite to legislative history that is allegedly relevant to and supports itsinterpretation of the statute, but one can just as easily point to legislative history of similar qualitysupporting an alternative construction of the Act. See ante, at 41-42, and nn. 8, 9. 5

Since the statute itself is not clear and unambiguous, the legislative history is muddy at best, and OMBhas given the statute what I believe is a permissible construction, I cannot agree with the outcome theCourt reaches. If Chevron is to have meaning, it must apply when a statute is as ambiguous on the issue




at hand as the PRA is on the subject of disclosure requirements. Contrary to the Court of Appeals and tothe majority, I would defer to OMB's position that the obligation to compile copies of MSDS's and thelabeling requirements are information collection requests subject to its approval. It follows that OMBwas not acting contrary to the statute in disapproving the three provisions specifically involved in thiscase.

But even accepting for the moment the Court's construction of the statute, it is notable that the Courtfails to consider whether the requirement that employers at multiemployer work sites file all of therelevant MSDS's in a central location or exchange them and make them available at their home offices,see 29 CFR 1910.1200(e)(2) (1988), might be considered a "recordkeeping requirement." Granted, onepurpose of the multiemployer standard is to provide workers with an opportunity to learn the dangersassociated with the handling of particular materials used on the work site; nonetheless, the proposedstandard does not require employers to actually disseminate the MSDS's to their workers. Rather itrequires them to physically compile and maintain massive quantities of paperwork at multiemployer jobsites, such as construction sites, or their home offices. This requirement [494 U.S. 26, 54] certainly lookslike a "recordkeeping requirement" in the plainest sense of the term. In addition, the Department ofLabor may periodically check these records for compliance with substantive requirements, see1910.1200(e)(4) and (g)(11), a factor the Court emphasizes in describing which recordkeeping requestsare subject to the Act. As I see it, even under the Court's interpretation of the Act, this portion of thestandard should be subject to OMB review.

Finally, an argument that the Court does not make but which the United Steelworkers do is thatChevron should not apply in this case because OMB's regulations actually determine the scope of itsjurisdiction under the Act. This Court has never accepted that argument and in fact, as JUSTICESCALIA pointed out in his lucid concurrence in Mississippi Power & Light Co. v. Mississippi ex rel.Moore, 487 U.S. 354, 377 (1988), there are good reasons not to accept it, reasons which JUSTICESCALIA has adequately set forth and which I will not repeat here. I note, however, that Chevron itselfand several of our cases decided since Chevron have deferred to agencies' determinations of mattersthat affect their own statutory jurisdiction. 6 See, e. g., Massachusetts v. Morash, 490 U.S. 107, 116 -118 (1989); K mart Corp. v. Cartier, Inc., 486 U.S. 281, 292 -293 (1988); EEOC v. Commercial OfficeProducts Co., 486 U.S. 107, 114 -116 (1988); NLRB v. Food and Commercial Workers, 484 U.S. 112 ,[494 U.S. 26, 55] 123-128 (1987); Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221,233 (1986); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 845 (1986); ChemicalManufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125 -126 (1985). Theapplication of Chevron principles cannot be avoided on this basis.

For the foregoing reasons, I respectfully dissent.

[ Footnote 1 ] In Action Alliance of Senior Citizens of Philadelphia v. Bowen, 269 U.S. App. D.C. 463,846 F.2d 1449 (1988), the court rejected an argument that the Federal Reports Act of 1942, 44 U.S.C.3501 et seq. (1976 ed.), the PRA's predecessor, did not cover an agency request that private partiesconduct self-evaluations which should then be made available to the public and the agency uponrequest. The court stated:

"The claim is pure pettifoggery. Appellants cannot seriously believe that in enacting the ReportsAct Congress was concerned solely or primarily with private parties' costs of mailing data toWashington; it is the recordkeeping and data-gathering that constitute the burden. Moreover,OMB and its predecessor, the Bureau of the Budget, have interpreted the statutory term`collection of information' for nearly half a century to encompass `[a]ny general or specificrequirement for the establishment or maintenance of records . . . which are to be used or be




available for use in the collection of information.' Regulation A, Federal Reporting Services,Clearance of Plans and Reports Forms, Title I(1)(e) (February 13, 1943) . . . . Even under thedeference we owe the agency, Chevron U.S. A., Inc. v. Natural Resources Defense Council [,Inc., 467 U.S. 837, 842 -845 (1984)], we doubt we could uphold a view of the Reports Act thatmade physical delivery to an agency essential to the notion of `collection of information.' Happilywe confront no such oddity." 269 U.S. App. D.C., at 467-468, 846 F.2d, at 1453-1454 (emphasisin original).

Notably, by enacting the PRA Congress intended to expand the scope of authority OMB and itspredecessor had been given under the Reports Act. See Paperwork and Redtape Reduction Act of 1979:Hearing on S. 1411 before the Subcommittee on Federal Spending Practices and Open Government [494

U.S. 26, 46] of the Senate Committee on Governmental Affairs, 96th Cong., 1st Sess., 24-60, 119-125(1979) (hereinafter S. 1411 Hearings) (comments of OMB and the Comptroller General noting that theproposed legislation would cure deficiencies in the coverage of the Federal Reports Act); S. Rep. No.96-930. p. 13 (1980).

[ Footnote 2 ] For example, OMB has reviewed Environmental Protection Agency community right-to-know disclosure requests, 52 Fed. Reg. 38344, 38364 (1987), Federal Trade Commission textile fiberproducts identification disclosure and fair packaging and fair labeling disclosure requests, 53 Fed. Reg.5986, 5987 (1988), and Food and Drug Administration nutrition labels. 52 Fed. Reg. 28607 (1987). Inthis case, the Secretary of Labor and OMB have consistently agreed that the hazard communicationstandard is subject to review under the Act. See 47 Fed. Reg. 12092, 12111 (1982); 48 Fed. Reg. 53280(1983); 52 Fed. Reg. 31852, 31870 (1987); 53 Fed. Reg. 29822, 29826, 29849-29850 (1988). Courtsshould be particularly reluctant to intervene in the regulatory process when the executive agencies havebeen able to cooperate effectively.

[ Footnote 3 ] Relevant to this case are the following definitions promulgated by OMB as 5 CFR 1320.7(1989):

"(c) `Collection of information' means the obtaining or soliciting of information by an agencyfrom ten or more persons by means of identical questions, or identical reporting or recordkeepingrequirements, whether such collection of information is mandatory, voluntary, or required toobtain a benefit. For purposes of this definition, the òbtaining or soliciting of information'includes any requirement or request for persons to obtain, maintain, retain, report, or publiclydisclose information. In the Act, a `collection of information requirement' is a type ofìnformation collection request.' As used in this part, a `collection of information' refers to the actof collecting information, to the information to be collected, to a plan and/or an instrumentcalling for the collection of information, or any of these, as appropriate.

"(1) A `collection of information' includes the use of written report forms, application forms,schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods.Similar methods may include . . . disclosure requirements [and] labeling requirements . . . .

"(2) Requirements by an agency for a person to obtain or compile information for the purpose ofdisclosure to members of the public or to the public at large, through posting, notification,labeling, or similar disclosure requirements, constitute the `collection of information' wheneverthe same requirement to obtain or compile information would be a `collection of information' ifthe information were directly provided to the agency. The public disclosure of informationoriginally supplied by the Federal government to the recipient for the purpose of disclosure to thepublic is not included within this definition.




. . . . .

"(p) `Recordkeeping requirement' means a requirement imposed by an agency on persons tomaintain specified records and includes requirements that information be maintained or retainedby persons but not necessarily provided to an agency.

"(q) `Reporting requirement' means a requirement imposed by an agency on persons to provideinformation to another person or to the [494 U.S. 26, 49] agency. Reporting requirements mayimplicitly or explicitly include related recordkeeping requirements." (Emphasis added.)

[ Footnote 4 ] In this same vein, 3504, in setting forth OMB's authority and functions in administeringthe Act, directs that the information collection request clearance and other paperwork control functionsof the Office shall include "setting goals for reduction of the burdens of Federal information collectionrequests." 44 U.S.C. 3504(c)(5) (1982 ed.). See also 3505(1), which directs OMB to set goals to reducethe paperwork burdens by specified percentages, as well as 3507(a)(1)'s requirement that agencies takeaction to reduce the paperwork burden of a proposal before submitting such proposals to OMB.

[ Footnote 5 ] In particular, see S. 1411 Hearings, at 61-87; H. R. Rep. No. 96-835, pp. 18-23 (1980); S.Rep. No. 96-930, pp. 13, 39-40 (1980).

[ Footnote 6 ] In any event, the PRA itself provides a check on OMB's ability to expand its jurisdiction,at least with respect to independent regulatory agencies. Section 3507(c) provides as follows:

"Any disapproval by the Director, in whole or in part, of a proposed information collectionrequest of an independent regulatory agency . . . may be voided, if the agency by a majority voteof its members overrides the Director's disapproval or exercise of authority. The agency shallcertify each override to the Director, [and] shall explain the reasons for exercising the overrideauthority. Where the override concerns an information collection request, the Director shallwithout further delay assign a control number to such request, and such override shall be valid fora period of three years." [494 U.S. 26, 56]

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EXHIBIT

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After examining the briefs and appellate record, this panel has determined*

unanimously that oral argument would not materially assist the determination ofthis appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case istherefore ordered submitted without oral argument.

FILEDUnited States Court of Appeals

Tenth Circuit

September 25, 2007

Elisabeth A. ShumakerClerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JIMMY C. CHISUM,

Defendant-Appellant.

No. 06-7082

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. CR-05-43-001-RAW)

Submitted on the briefs:*

Stephen J. Knorr, Tulsa, Oklahoma, for Defendant-Appellant.

Sheldon J. Sperling, United States Attorney, Robert G. Guthrie, Assistant UnitedStates Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

Before HARTZ, EBEL , and TYMKOVICH , Circuit Judges.

HARTZ, Circuit Judge.

Case: 06-7082 Document: 010138646 Page: 1


-2-

Jimmy C. Chisum appeals his conviction and sentence on four counts of tax

evasion. He contends that the district court erred in admitting evidence of his

lawsuits against tax-court judges and in applying a sentencing enhancement based

on his role in the tax-evasion offenses. He also contends that he was not timely

tried under the federal Speedy Trial Act, that the district court lacked

subject-matter jurisdiction, that the federal Paperwork Reduction Act barred his

prosecution, and that the indictment and evidence were insufficient. As explained

below, we affirm Mr. Chisum’s conviction, but we reverse and remand for

resentencing.

BACKGROUND

In April 2005 Mr. Chisum, a self-styled business and estate planner, was

indicted for aiding and abetting the willful attempt to evade income taxes owed

by Brian and Mitzi Chadsey for the calendar years 1997 through 2000. See 18

U.S.C. § 2; 26 U.S.C. § 7201. The government’s theory of the case was

“essentially that [Mr. Chisum] created a sham trust to attempt to conceal income

[Brian] Chadsey earned from his business, Regional Chiropractic Health Care,” a

limited liability company. R., Vol. 1, Doc. 35 at 2-3 (Bill of Particulars). Upon

being informed that Mr. Chisum wished to represent himself, the district court

appointed attorney Stephen Knorr to assist him as standby counsel.



-3-

At trial the government introduced testimony to establish the following:

Brian Chadsey met Mr. Chisum at one of Mr. Chisum’s seminars on “business

structure, limited liability companies and trusts.” Id., Vol. 4 at 123 (Chadsey

testimony). They later entered into an arrangement in which Mr. Chadsey

allocated 95% of the income from Regional Chiropractic to CSEA Cottage

Limited, a trust established by Mr. Chisum “to take care of tax matters and

anything else that was needed.” Id. at 126. Mr. Chisum told Mr. Chadsey that

taxes would have to be paid only on the money that Mr. Chadsey took from

Regional Chiropractic as a salary and that the rest of the income “would end up in

a non-controlled foreign corporation that was not taxable under U.S. tax law.” Id.

at 129. Mr. Chadsey did “[n]ot intimately” understand the details of how the

income became nontaxable. Id. Mr. Chadsey followed Mr. Chisum’s directions

in filing tax returns for 1997 through 2000, underreporting Regional

Chiropractic’s income by about $207,000. In July 2000 the IRS began auditing

Regional Chiropractic. In accordance with Mr. Chisum’s advice, Mr. Chadsey

filed amended income-tax returns for the years 1997 through 2000, reporting that

Regional Chiropractic had no income.

In July 2001 Mr. Chisum appeared at an IRS office in response to a

summons seeking Regional Chiropractic’s records, but he refused to produce the

requested books and records. Even after a judge ordered production of the



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records, Mr. Chisum advised Mr. Chadsey that he could refuse to produce them.

Eventually, Mr. Chadsey obtained counsel and began to cooperate with the IRS.

In its case-in-chief, the government also introduced into evidence several

tax-court decisions from 1999 and 2000 holding that trusts created by Mr. Chisum

were shams.

Mr. Chisum testified at trial that he did not intend to commit the crimes

charged:

Whether or not I’ve willfully evaded a known duty is thequestion before you. And it’s my opinion, it was my belief throughmy own study, my own research, my own history that I never knewthere was a duty. I thought, and still believe in my heart, that theincome tax system in America is written to be a hundred percentcompatible with the scripture, and that it has a very strong voluntarycomponent to it.

R., Vol. 6 at 490. In rebuttal the government offered evidence of lawsuits filed

by Mr. Chisum in 2002 against tax-court judges who had issued opinions

declaring various Chisum trusts to be shams. The jury returned guilty verdicts

against Mr. Chisum on all four counts in the indictment.

The probation department prepared a presentence report calculating a

United States Sentencing Guidelines (U.S.S.G.) range of 78 to 97 months’

imprisonment based on Mr. Chisum’s category-one criminal history and offense

level of 28. The government objected, seeking a two-level upward adjustment of

the offense level under U.S.S.G. § 3B1.1(c), claiming that Mr. Chisum “was an

organizer, leader, manager, or supervisor of Mr. Chadsey’s (along with many



-5-

others) criminal activity.” R., Vol. 8 (Feb. 26, 2006 letter to Supervising U.S.

Probation Officer at 1). The probation department opposed the adjustment,

stating that § 3B1.1(c) did not apply because “it does not appear that the other

participants initially intentionally entered into any criminal activity with [Mr.

Chisum].” Id. (Addendum to the Presentence Report at 1). At the sentencing

hearing the government asserted that under § 3B1.1(c), “it’s not necessary that

there be another criminal participant [besides Mr. Chisum]. There just has to be

criminal activity.” Id., Vol. 7 at 149.

The district court sustained the government’s objection, ruling that

§ 3B1.1(c) was applicable:

Mr. Chisum provided seminar participants with specific informationand examples of how to set up trusts to protect their property, assets,and income from taxation. Mr. Brian Chadsey testified during thetrial in this case that his own involvement in filing false income taxreturns was due to the advice and direction of Mr. Chisum. Likewise, Mr. Chisum has provided the same or similar directions tomany other persons, which resulted in the filing of income taxreturns which did not . . . contain complete and truthful informationregarding the legitimate taxes owed to the Internal Revenue Service. Mr. Chisum assisted individuals in setting up sham trusts to disguiseor hide taxable income and acted as the trustee for many people, inaddition to Brian Chadsey. He also acted as tax matters partner andinterceded with the Internal Revenue Service on behalf of many ofthese people when their tax returns were questioned by the IRS. . . . [T]he Court finds by a preponderance of the evidence thatMr. Chisum was a leader and organizer of others in the criminalactivity of tax evasion and filing of false income tax returns.



-6-

Id. at 152-53. Accordingly, the district court increased Mr. Chisum’s offense

level by two, which made the applicable sentencing range 97 to 121 months. The

district court imposed a 97-month sentence.

Mr. Chisum appealed. We directed Mr. Knorr to file an appellate brief.

Because Mr. Knorr thought that several issues pressed by his client were

meritless, he raised them under Anders v. State of Cal., 386 U.S. 738 (1967)

(describing proper procedure for defense attorney raising meritless arguments

pressed by client). In addition, he raised two non-Anders issues.

D ISCUSSION

I. Non-Anders Issues

A. Evidence of Mr. Chisum’s Lawsuits

Mr. Chisum argues that he was extremely prejudiced by evidence of his

lawsuits against tax judges. He asserts that the evidence portrayed him as a tax

protester and that it added nothing relevant because the district court had already

admitted the tax judges’ opinions finding his trusts to be shams. “We review

challenges to admissibility of evidence solely for abuse of discretion.” United

States v. Reddeck , 22 F.3d 1504, 1508 (10th Cir. 1994).

Under Federal Rule of Evidence 403, “[a]lthough relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.”



-7-

Evidence is relevant if it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Fed. R. Evid. 401.

The intent requirement in criminal tax cases is particularly strict. As the

Supreme Court stated in Cheek v. U.S., 498 U.S. 192, 201-02 (1991):

Willfulness, as construed by our prior decisions in criminal taxcases, requires the Government to prove that the law imposed a dutyon the defendant, that the defendant knew of this duty, and that hevoluntarily and intentionally violated that duty. . . . [I]f theGovernment proves actual knowledge of the pertinent legal duty, theprosecution, without more, has satisfied the knowledge component ofthe willfulness requirement. But carrying this burden requiresnegating a defendant’s claim of ignorance of the law or a claim thatbecause of a misunderstanding of the law, he had a good-faith beliefthat he was not violating any of the provisions of the tax laws. . . . In the end, the issue is whether, based on all the evidence, theGovernment has proved that the defendant was aware of the duty atissue, which cannot be true if the jury credits a good-faithmisunderstanding and belief submission, whether or not the claimedbelief or misunderstanding is objectively reasonable.

In light of this intent requirement, the district court did not abuse its discretion in

admitting Mr. Chisum’s prior complaints. He had sued the tax judges for

attempting to “put[ ] [him] out of business” by ruling that the income received by

his trusts was taxable. R., Vol. 1, Doc. 69, Ex. 82 (Am. Compl. at 4). The

lawsuits tended to show that he was not acting in good faith in continuing his

scams. In particular, Mr. Chadsey testified that he and Mr. Chisum had talked

“about trusts that were ruled as shams. But he always assured us that they

weren’t the same as the trust that he was using.” Id., Vol. 4 at 223. To rebut any



-8-

inference that Mr. Chisum believed in good faith that the arrangement with the

Chadseys was distinguishable from the trusts upon which the tax court had ruled,

the government was entitled to show Mr. Chisum’s hostile attitude to the prior

rulings. A jury could infer that he simply was unwilling to submit to what he

knew were authoritative statements of the law. Moreover, we see little danger of

unfair prejudice, given that the tax-court decisions had already been admitted as

evidence without objection.

B. § 3B1.1 Enhancement

Mr. Chisum argues that the district court erred in calculating his offense

level under the sentencing guidelines by applying a sentencing enhancement

based on his role as a leader and organizer of a criminal scheme. After United

States v. Booker, 543 U.S. 220 (2005), we review sentences for reasonableness.

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “A sentence

cannot . . . be considered reasonable if the manner in which it was determined

was unreasonable, i.e., if it was based on an improper determination of the

applicable Guidelines range.” Id . at 1055. When considering a district court’s

application of the Guidelines, “we review legal questions de novo and we review

any factual findings for clear error, giving due deference to the district court’s

application of the guidelines to the facts.” United States v. Wolfe, 435 F.3d 1289,

1295 (10th Cir. 2006).

U.S.S.G. § 3B1.1 provides:



-9-

Based on the defendant’s role in the offense, increase the offenselevel as follows:(a) If the defendant was an organizer or leader of a criminal activitythat involved five or more participants or was otherwise extensive,increase by 4 levels.(b) If the defendant was a manager or supervisor (but not anorganizer or leader) and the criminal activity involved five or moreparticipants or was otherwise extensive, increase by 3 levels.(c) If the defendant was an organizer, leader, manager, or supervisorin any criminal activity other than described in (a) or (b), increaseby 2 levels.

(emphasis added). “All of the roles defined by § 3B1.1 require the involvement

of more than one participant. Although § 3B1.1(c) does not include the word

‘participant’ as subsections (a) and (b) do, the terms ‘organizer,’ ‘leader,’

‘manager,’ and ‘supervisor’ used in subsection (c) suggest the presence of

participants other than the defendant who were the defendant’s underlings or

subordinates.” United States v. Bauer, 995 F.2d 182, 183-84 (10th Cir. 1993)

(citations omitted). Under the Guidelines, “[a] ‘participant’ is a person who is

criminally responsible for the commission of the offense, but need not have been

convicted.” U.S.S.G. § 3B1.1, commentary (application note 1). See United

States v. Aptt, 354 F.3d 1269, 1285 (10th Cir. 2004).

A district court “must make specific findings and advance a factual basis to

support an enhancement under U.S.S.G. § 3B1.1.” United States v. Ivy, 83 F.3d

1266, 1292 (10th Cir. 1996) (brackets and internal quotation marks omitted).

Thus, the district court was required to find that Mr. Chisum organized, led,

managed, or supervised at least one person who was criminally responsible. But



-10-

Mr. Chisum asserts, and we agree, that it did not do so. The district court appears

to have adopted the government’s view that a subsection (c) enhancement does

not require the involvement of a participant.

On appeal the government contends that it is “obvious” that the district

court believed that Mr. Chadsey was criminally responsible, intending to

participate in the commission of Mr. Chisum’s offenses. Aplee. Br. at 31. But

we do not view the record as that clear. The evidence of Mr. Chadsey’s guilt is

not overwhelming. See, e.g., R., Vol. 4 at 128 (Chadsey testimony that Mr.

Chisum reassured him “[s]omewhere between ten and fifty” times that the tax

arrangements were legitimate); id. at 239 (Chadsey testimony that he considered

Mr. Chisum to be his tax advisor and greatly respected Mr. Chisum’s advice); id.

at 240 (Chadsey testimony that he believed “that the tax code said that what we

had earned wasn’t income”). And “even if the record overwhelmingly supports

the enhancement, appellate fact-finding cannot substitute for the district court’s

duty to articulate clearly the reasons for the enhancement.” Ivy, 83 F.3d at 1292

(internal quotation marks omitted). Consequently, this matter must be remanded

for the entry of specific findings of fact regarding the criminal culpability of any

coparticipants.



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II. Anders Issues

A. Speedy Trial Act

Mr. Chisum argues that “the indictment should be dismissed based on a

violation of the Speedy Trial Act, 18 U.S.C. § 3161.” Aplt. Br. at 24 (emphasis

omitted). He claims that the Act was violated because (1) the trial did not begin

within 70 days of his initial appearance, and (2) the district court did not make

factual findings excluding from the 70-day period the two-month continuance he

requested and obtained. But because Mr. Chisum failed to move for dismissal

before trial, he has “waived his right to that remedy.” United States v. Gomez, 67

F.3d 1515, 1520 (10th Cir. 1995).

B. Subject-Matter Jurisdiction

Mr. Chisum contends that the district court erred in denying his motions to

dismiss for lack of jurisdiction. He claims that the federal district court for the

Eastern District of Oklahoma is “incapable of acting by Article III judicial powers

within the State of Oklahoma’s sovereign territory and without the federal zone.”

Aplt. Br. at 26-27. Our review is de novo. See Mires v. United States, 466 F.3d

1208, 1209 (10th Cir. 2006). We rejected this “hackneyed tax protester refrain”

17 years ago in United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990), and

we do so again today. The district court did not err in denying Mr. Chisum’s

motions to dismiss for lack of jurisdiction.



-12-

C. The Paperwork Reduction Act (PRA)

The PRA, 44 U.S.C. §§ 3501-20, precludes the imposition of any penalty

against a person for “failing to comply with a collection of information” if either

(1) it “does not display a valid control number” or (2) the agency fails to alert the

person that he or she “is not required to respond to the collection of information

unless it displays a valid control number.” 44 U.S.C. § 3512(a). A § 3512(a)

defense may be raised at any time. See id. § 3512(b). Tax forms are covered by

the PRA. See Dole v. United Steelworkers of Am., 494 U.S. 26, 33 (1990).

Mr. Chisum contends that “[s]ince there was no proof that Form 1040 was a

lawful form under the [PRA], the trial court erred in failing to grant [his] request

[at the sentencing hearing] to dismiss the indictment.” Aplt. Br. at 29. But the

PRA protects a person only “for failing to file information. It does not protect

one who files information which is false.” Collins, 920 F.2d at 630 n.13 (internal

quotation marks omitted). The charges against Mr. Chisum were predicated on

the filing of false information, not the failure to file. He is therefore not entitled

to relief.

D. Sufficiency of the Evidence

In reviewing for sufficiency of the evidence, “our role is limited to

determining whether a reasonable jury could find guilt beyond a reasonable doubt,

based on the direct and circumstantial evidence, together with the reasonable

inferences to be drawn therefrom.” United States v. Sells, 477 F.3d 1226, 1235



-13-

(10th Cir. 2007) (internal quotation marks omitted). Because Mr. Chisum did not

contest the sufficiency of the evidence below, we review for plain error. See

United States v. Goode , 483 F.3d 676, 681 (10th Cir. 2007). Accordingly, he

“must show: (1) an error, (2) that is plain, which means clear or obvious under

current law, and (3) that affects substantial rights. If he satisfies these criteria,

this Court may exercise discretion to correct the error if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (internal

quotation marks omitted).

“To obtain a conviction for evasion, the government must prove three

elements: 1) the existence of a substantial tax liability, 2) willfulness, and 3) an

affirmative act constituting an evasion or attempted evasion of the tax.” United

States v. Meek, 998 F.2d 776, 779 (10th Cir. 1993). Mr. Chisum argues “that

there was no evidence presented that the required process to determine an

assessment was followed in this case and thus no tax liability was proven at trial.”

Aplt. Br. at 30. But “certified transcripts”—what the IRS calls “Certificate[s] of

Assessments”—were admitted at trial, R., Vol. 4 at 96, 97, and are sufficient to

establish the propriety of tax assessments in the absence of conflicting evidence,

see March v. IRS , 335 F.3d 1186, 1188 (10th Cir. 2003) (observing that

“Certificates of Assessments and Payments on Form 4340” constitute

“presumptive proof of a valid assessment” (internal quotation marks omitted));

United States v. Voorhies, 658 F.2d 710, 715 (9th Cir. 1981) (recognizing the



-14-

presumption in a tax-evasion case). Mr. Chisum offered nothing to contradict the

information in those transcripts. There appears to have been sufficient evidence

of the existence of a tax liability. Thus, the district court did not plainly err in

refusing to dismiss the indictment for insufficient evidence.

E. Sufficiency of the Indictment

The federal tax-evasion statute proscribes attempts to evade “any tax

imposed by this title .” 26 U.S.C. § 7201 (emphasis added). Mr. Chisum argues

that the district court erred in denying his postverdict motion to dismiss the

indictment for omitting “what part of Title 26 imposed the tax that was being

evaded or defeated.” Aplt. Br. at 31. “[W]e review indictments liberally when

they are challenged for the first time after a verdict.” United States v. Avery,

295 F.3d 1158, 1176 (10th Cir. 2002); see Fed. R. Cr. P. 12(b)(3)(B).

“An indictment is sufficient if it sets forth the elements of the offense

charged, puts the defendant on fair notice of the charges against which he must

defend, and enables the defendant to assert a double jeopardy defense.” United

States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). The indictment alleged

that Mr. Chisum violated 26 U.S.C. § 7201 (tax evasion) and 18 U.S.C. § 2

(principal liability) by

willfully attempt[ing] to evade and defeat individual income taxesdue and owing by [the Chadseys] . . . for the calendar year [1997,1998, 1999, or 2000 in the four counts] by committing variousaffirmative acts of evasion, including causing to be prepared falseincome tax returns, utilizing trusts, concealing assets and income by



-15-

maintaining bank accounts and off shore accounts in nominee names,and by attempting to obstruct the [IRS] during an audit of Brian F.Chadsey and Mitzi P. Chadsey.

R., Doc. 1 at 1, 2, 3. These allegations contain the elements of tax evasion, see

Meek, 998 F.2d at 779, provide sufficient notice of the charges, and are drawn

with sufficient specificity to foreclose further prosecution on the same charges.

The mere omission of the specific statutory authority for the Chadseys’ tax

liability does not render the indictment insufficient. Cf. United States v. Vroman ,

975 F.2d 669, 670-71 (9th Cir. 1992) (indictment for failure to file income-tax

returns that cited the penalizing statutes held sufficient even though it failed to

cite the statute that requires the filing of a tax return).

CONCLUSION

We affirm Mr. Chisum’s conviction, but we reverse his sentence and

remand for further proceedings regarding a § 3B1.1(c) enhancement. We also

deny as moot Mr. Knorr’s motion to withdraw and Mr. Chisum’s motions to

remove Mr. Knorr as counsel and to proceed pro se. Finally, we treat

Mr. Chisum’s motions to amend the opening brief and to nullify United States v.

Magallanez, 408 F.3d 672 (10th Cir. 2005), as submissions under Fed. R. App. P.

28(j), seeking to call our attention to Cunningham v. California , 127 S. Ct. 856

(2007). Mr. Chisum will have the opportunity to argue Cunningham’s

applicability on remand.



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