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It's Time To Demand An End To This "Frivolous" Nonsense

(As is always the case when studying on this site or in CtC, UtL or WGRaM?, it is very important to read every word, even if you think you know what is being said, think something might not apply to you, or are impatient with long pages or passages.  Pages linked throughout and at the end of this page are also extremely important.  Read those pages carefully and thoroughly, too.)

 

On the receiving end of scary "Frivolous Return" notices?

Click here for a detailed analysis of these paper tigers;

then

Click here for some response-oriented material

"The attempt to silence a man is the greatest honor you can bestow on him.
It means that you recognize his superiority to yourself."

-Joseph Sobran

 

By the way...

  • "Frivolous penalties" must by assessed as taxes:

26 USC § 6671. Rules for application of assessable penalties

 

(a) Penalty assessed as tax

The penalties and liabilities provided by this subchapter [which includes section 6702 -PH] shall be paid upon notice and demand by the Secretary, and shall be assessed and collected in the same manner as taxes. Except as otherwise provided, any reference in this title to “tax” imposed by this title shall be deemed also to refer to the penalties and liabilities provided by this subchapter.

"Tax liability is a condition precedent to the demand. Merely demanding payment, even repeatedly, does not cause liability.  For the condition precedent of liability to be met, there must be a lawful assessment, either a voluntary one by the taxpayer or one procedurally proper by the IRS. Because this country's income tax system is based on voluntary self-assessment, rather than distraint, Flora v. United States, 362 U.S. 145, 176, 80 S.Ct. 630, 646-47, 4 L.Ed.2d 623 (1960), the Service may assess the tax only in certain circumstances and in conformity with proper procedures."

Bothke v. Terry, 713 F. 2d 1405, at 1414 (1983).

 

IF YOU HAVE BEEN SENT ANYTHING WHICH APPEARS TO ASSERT THAT A PENALTY HAS BEEN "ASSESSED" AGAINST YOU, CLICK HERE AND READ THE LINKED PAGE CAREFULLY AND THOROUGHLY.

 

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(The government is also under a species of obligation to explain "disallowances", by the way.  Those facing efforts to thwart a lawful claim of refund by way of a meaninglessly vague assertion that it is "frivolous", etc., might want to make use of the following law, passed as part of the 'Income Tax Restructuring Act Of 1998':

 

26 USC 6402(l) (P. L. 105 - 206 § 3505):

Explanation of reason for refund disallowance.

In the case of a disallowance of a claim for refund, the Secretary shall provide the taxpayer with an explanation for such disallowance.

 

For instance, prior to suing, one might consider demanding that the 'service' meaningfully explain the "disallowance", citing 26 USC 6402(l) and the theory that Congress must surely have intended this requirement to apply to the “disallowance” of refunds to non-“taxpayers” as well as to “taxpayers”.  One would point out that if the ‘service’ feels that this theory is not sound, its ongoing failure to offer an explanation of the “disallowance” can only amount to an admission that the government has concluded that the claimant is not a “taxpayer” to whom such an explanation is owed.  Thus, the government’s silence in response to one demand or the other will serve a warrior well in a courtroom, if it should come to that.)

 

*****

 

The following three documents are memoranda regarding the IRS's official position on what does and does not qualify as a valid return, issued by the service's Office of Chief Counsel.  Everyone being subjected to the outrageous treatment discussed on this page should read these documents-- carefully, and thoroughly.

OCC0127045

OCC0114033

OCC0107035

 

Regarding the government's obligation to respond to and honor a proper, timely return:

“And be it further enacted,…that any party, in his or her own behalf,…shall be permitted to declare, under oath or affirmation, the form and manner of which shall be prescribed by the Commissioner of Internal Revenue,... ...the amount of his or her annual income,… liable to be assessed,… and the same so declared shall be received as the sum upon which duties are to be assessed and collected.”  Revenue Act of 1862, Sec. 93

 

Senator Clark: "Of course, you withhold not only from taxpayers but nontaxpayers."

Mr. Hardy: "Yes."

...

Senator Danaher: "I have only one other thought on that point. In the event of withholding from the owner of stock and no taxes due ultimately, where does he get his refund?"

Mr. Friedman: "You're thinking of a corporation or an individual?"

Senator Danaher: "I am talking about an individual."

Mr. Friedman: "An individual will file an income tax return, and that income tax return will constitute an automatic claim for refund."

(From a hearing before a subcommittee of the committee on finance, United States Senate, during the 77th Congress, Second Session on withholding provisions of the 1942 Revenue Act on August 21 and 22, 1942.  Missouri Democratic Senator Bennett Clark, Connecticut Republican Senator John A. Danaher and testifying witnesses Charles O. Hardy of the Brookings Institution and Milton Friedman of the Treasury Department Division of Tax Research.)

 

“Even if you do not otherwise have to file a return, you should file one to get a refund of any Federal income tax withheld.”

From the instructions for the 2002 Form 1040

 

26 CFR 301.6402-3 Special Rules applicable to income tax.

(a) In the case of a claim for credit or refund filed after June 30, 1976--

(1) In general, in the case of an overpayment of income taxes, a claim for credit or refund of such overpayment shall be made on the appropriate income tax return.

 

26 CFR 301.6203-1 Method of assessment.

...The amount of the assessment shall, in the case of a tax shown on a return by the taxpayer, be the amount so shown...

(...and even $0.00 is an amount.  By the way, those disturbed by the gratuitous use of the term "taxpayer" in this regulation should relax and read 'About 1040s And Claiming Refunds' in CtC.)

*****

Having to take this matter to the courts is an annoyance and an inconvenience, and the effort will be strongly resisted.  But it appears to be a necessary step.  As Frederick Douglass, a man well-acquainted with arrogant and self-serving power reminds us, 

"Power concedes nothing without a demand.  It never did and it never will.  Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them, and these will continue till they have been resisted with either words or blows, or with both.  The limits of tyrants are prescribed by the endurance of those whom they suppress."

 

So, let's demand an end to this "frivolous" nonsense.

 

 

Click here to learn about the CtC-educated filing and subsequent events that led to this admission.

 

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A "Frivolous" Response

 

Regarding Writs Of Mandamus...

 

Title 28, Chapter 21, § 451. Definitions

As used in this title:

The terms “district court” and “district court of the United States” mean the courts constituted by chapter 5 of this title.

 

Title 28, Chapter 5, § 132. Creation and composition of district courts

(a) There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district.

 

Title 28, Part IV, Chapter 85, § 1361. Action to compel an officer of the United States to perform his duty

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

(Click here for more on this.)

 

And Going Directly To The Grand Jury:

 

'But in this country it . . . is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment.'

United States Supreme Court, Hale v. Henkel, 201 U.S. 43 (1906), quoting Frisbie v. United States, 157 U.S. 160 , 39 L. ed. 657, 15 Sup.Ct.Rep. 586, while observing that the cooperation, participation or approval of the U.S. Attorney is not necessary in the initiation of a grand jury investigation, or indictment.  Thus, if a government official commits a crime, no one need trust to the performance of another government official in order to haul the offender up on charges...

 

Regarding The Limits Of The Power To Levy

U.S. Tax Court Ruling Offers A Nice Summary Of A Key 'Cracking the Code-...' Point

Regarding The Questionnaires Which Sometimes Accompany 3176 Letters

The 'Every Which Way But Loose' Collection

The "HELP!" Page

Tax Tips

FAQs

The Digital Appendix

An "Income" Tax Site Map