Banister, Joe

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Re: Banister, Joe

Postby The Observer » Mon Apr 30, 2012 3:34 pm

Plaintiff contends that the ALJ's decision barring Plaintiff from testifying regarding the diligence of his research, the community standard for his practice, his knowledge of others taking the same position successfully,...


Really? Joe knows of others who were successful in using the gibberish and garbage that he was advocating to others? You would have thought that he would have elaborated on this astounding claim, by citing their court cases or at least providing their names. Not that I am holding my breath in thinking that something revelatory is going to come out of this swill.
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Re: Banister, Joe

Postby notorial dissent » Tue May 01, 2012 6:30 am

Banister seems to be really good at "knowing" all these things as a dead bang fact, and yet woefully inept at providing proof of same, which seems to be the hallmark of all his actions to date, as he certainly hasn't come forth with any of his "proof".
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: Banister, Joe

Postby jcolvin2 » Mon Nov 26, 2012 7:25 pm

http://www.ca9.uscourts.gov/datastore/memoranda/2012/11/23/11-15961.pdf

Disbarment affirmed by the Ninth Circuit. Concluding paragraph of opinion:

Banister admitted to conduct that qualifies as disreputable behavior under 31 C.F.R. § 10.50, rendering him eligible for disbarment under 31 C.F.R. § 10.70. Specifically, by advising clients that they did not have to pay taxes based on positions that he could not in good faith have believed to be consistent with the law, Banister violated 31 C.F.R. §§ 10.51(d), 10.51(j), 10.22(b), and 10.22(c). By signing a client’s tax returns as preparer even though he knew the positions advanced in support of the returns did not have a realistic possibility of being sustained and were frivolous, Banister also violated 31 C.F.R. § 10.34. In light of Banister’s admissions, there were no material facts in dispute, and the legal conclusions were apparent based on the settled facts. Summary judgment was thus wholly appropriate, and no evidentiary hearing was needed. With the material facts settled, the ALJ did not err by refusing to grant extraneous requests for discovery, witness testimony, or cross-examination.

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Re: Banister, Joe

Postby Famspear » Mon Nov 26, 2012 9:12 pm

In the decision, the Court went into some detail over the the term "willful" (or willfully or willfulness) as used in the Circular 230 regulations (in 31 CFR part 10) by referencing the interpretation of "willful" as found in the Cheek case.

But Cheek involved the meaning of the term as used in the Internal Revenue Code's criminal provisions, which is not necessarily controlling as to the meaning of the same term as used in the Circular 230 regulation as applied to the disbarment of Banister from practice before the Internal Revenue Service. Both Banister and the government seemed to assume (and the Court seemed to assume, without actually deciding) that the formulation of "willful" per Cheek is, as a matter of law, the same formulation of "willful" as used in Circular 230.

Under the Cheek formulation, Banister still lost his appeal.
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Re: Banister, Joe

Postby fortinbras » Mon Nov 26, 2012 9:43 pm

I do not see a problem about "willful". The govt is not obliged to demonstrate criminal or fraudulent intent, only a deliberate decision to do something other than what the Internal Revenue law requires.

Instances of some failure to comply that would not be willful might include intervening events, such as a severe and prolonged illness, hurricane, fire or flood. The failure of the individual to submit tax returns only one year, when he has properly filed them for years before and years after - this might point to some excusable error or possibly even shift the blame to something else such as the postal service.

On the other hand, doing the opposite of the IRS instructions, contrary perhaps to what this same person had previously done properly, and doing it repeatedly and despite some communication from the IRS, etc., shows willfulness. Knowing that the law says something but doubting its validity or looking to make a test case is also counted as willfulness.

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Re: Banister, Joe

Postby wserra » Mon Nov 26, 2012 9:46 pm

Famspear wrote:Both Banister and the government seemed to assume (and the Court seemed to assume, without actually deciding) that the formulation of "willful" per Cheek is, as a matter of law, the same formulation of "willful" as used in Circular 230.


That struck me as well.

Moreover, in deciding whether Banister is competent to represent people before the IRS, does it really matter whether his delusions are willful in any sense? I mean, delusions are delusions. If you are giving people tax advice which is the legal equivalent of eye of newt and wing of bat, who cares whether or not you are doing so "willfully"?
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Re: Banister, Joe

Postby notorial dissent » Tue Nov 27, 2012 4:03 am

So does this mean he is barred from practice in the federal courts???? They slapped his wrists??? What???
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: Banister, Joe

Postby Famspear » Tue Nov 27, 2012 4:21 am

notorial dissent wrote:So does this mean he is barred from practice in the federal courts???? They slapped his wrists??? What???


It means that he cannot represent clients in dealings with the Internal Revenue Service -- generally, in matters involving audits, collections, and tax refunds.

Banister is not an attorney and is not a member of the bar of the Tax Court, so representing clients in federal courts has never been an option for him.

Also, he used to be a CPA, but the State of California revoked his CPA license a while back.

EDIT: Banister is probably through (over, fini, kaput, c'est tout) as far as having a reasonable hope of preparing federal income tax returns for a living as well (assuming that he even wants to do that). To be in the business of preparing federal returns, he would have to pass a test and become registered by the Internal Revenue Service as a "Registered Tax Return Preparer" (RTRP). Considering that he's already lost his CPA license and has been disbarred by the Treasury Department, with both losses having resulted from his federal tax-related shenanigans, I would think that trying to become an RTRP would not be a good option for him.

He was an IRS Special Agent until he went off the rails, but at this point a job in law enforcement might be problematic for him as well.
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Re: Banister, Joe

Postby notorial dissent » Tue Nov 27, 2012 2:53 pm

Thanks, was distracted when I read this, and was confusing him in my mind with Ballenger???. Now that my memory is working, I guess I had thought that Banister had been booted from representation, and I remember he lost his CPA, gave it up according to him as I recall, but I guess I thought this had been resolved, I didn't realize he was still beating that long dead horse. So, what next? Most likely he will either petition for a rehearing en banc? Or appeal to the SCT?? Any bets?
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: Banister, Joe

Postby Cathulhu » Tue Nov 27, 2012 4:23 pm

Well, the man's managed to totally destroy any chance he had of pursuing the trade he trained for in college, but he doesn't show himself able to consider the fact he could be wrong. He's bought in deeply, drunk the kool-aid, and I have no doubts whatever that he'll continue on this path. A slow-mo train wreck, with far too many victims.
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Re: Banister, Joe

Postby notorial dissent » Tue Nov 27, 2012 4:53 pm

One of the questions I've always had, was Banister as good of an CPA as he was an IRS agent?

I guess my problem is that if he really was a good accountant, then how could he have bought in to the hooey he has lately been peddling? I just really don't understand how you go from where he should have been to where he is, the leap of illogic just doesn't work for me.
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: Banister, Joe

Postby Famspear » Tue Nov 27, 2012 6:21 pm

notorial dissent wrote:One of the questions I've always had, was Banister as good of an CPA as he was an IRS agent?

I guess my problem is that if he really was a good accountant, then how could he have bought in to the hooey he has lately been peddling? I just really don't understand how you go from where he should have been to where he is, the leap of illogic just doesn't work for me.


This gets back to something I have asserted in the past -- that the whole tax protester-tax denier thing is not related to the individual being stupid or not properly educated. We tend to find the majority of tax protesters to be amusing -- the people who consistently spell "lose" as "loose" and "frivolous" as "frivilous" -- the manic, paranoid "Harvesters" of the world, who eagerly jump from one delusion to another, and who seem to have never applied themselves enough to have mastered anything of importance in life.

But the published documentation on the attorneys and CPAs and physicians and dentists and engineers and others who fall into this nonsense (thankfully, a very small percentage of all such professional people) illustrates that some people who absolutely should know better and who have the education and intellect to know better still do drink the kool-aid; the phenomenon is not limited to those with limited intellect, limited education, or limited life experiences.

It really boils down to a set of psychological problems that these people have.
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Re: Banister, Joe

Postby Dr. Caligari » Thu Aug 11, 2016 9:08 pm

Outspoken IRS Critic Appeals Tax Penalties To 9th Circ.
By Michael Macagnone

Law360, New York (August 10, 2016, 6:41 PM ET) -- An anti-tax advocate has urged a Ninth Circuit panel to overturn Internal Revenue Service penalties against him, maintaining that the lower court applied a too-stringent standard in finding against the former IRS agent.

The brief filed Monday argued that the lower court should not have upheld the six penalties against Joseph Banister, as they were either tied to alleged misrepresentations in collections hearings or applied a lower standard from his disbarment proceedings. Banister, who resigned from a post as an IRS criminal investigator amid his criticism over the agency's collection of taxes, said officials have had a vendetta against him since he won acquittal on criminal tax charges tied to allegedly advising clients that they did not have to file tax returns.

Banister’s penalties spawned from the same trial over criminal tax charges and were tied to his representation of client Walter “Al” Thompson before the IRS. Thompson was convicted of criminal tax fraud in 2005, connected to his removing employees from his tax returns starting in 2000, according to court documents. Banister faced criminal charges — for which he was found not guilty — was disbarred from practicing before the IRS and lost his CPA license.

“The government’s actions should be seen for what they are: the desperate attempts of desperate bureaucrats to save face in light of Banister’s acquittal by a jury of his peers of all the conspiracy and fraud charges the government could throw at him; that, and to deter and quash his First Amendment speech rights to challenge government and demand answers as a law-abiding and honorable citizen — a citizen who served his country with distinction and honor as federal special agent for many years,” the brief said.

The summary judgments from U.S. District Judge Miranda M. Du were intended to close off three years of litigation over 12 penalties assessed against Banister tied to his representation of clients before the IRS. Judge Du’s 2015 decision granted summary judgment in the government’s favor on six of the penalties, and the government dropped the remainder.

Quoting variously from “Hamlet” and insisting that the government pursued Banister “at any and all cost” to impose the $12,000 in penalties, the brief argued that the six penalties remaining should not be applied. The brief said the section 6701 penalties, which are tied to “aiding and abetting understatement of tax liability,” have specific requirements that Judge Du’s opinion did not meet.

The former CPA, who lost his California license in 2007, said that the penalties related to his representations of clients Frank Coleman and Kenneth and Marlene Guthery could not have met the statutory definition of understatement as the documents they were based on were presented in collections due process hearings. Banister said that, because the hearings cannot affect the tax liability of a taxpayer, and only how the IRS collects it, he cannot be held liable.

In addition, he said the penalties related to his representation of Walter “Al” Thompson should have been considered under the proper standard laid out in section 6701, rather than the disbarment standard used against him tied to that advice. Banister said Judge Du ignored the differing standards between the disbarment and penalty statutes, which require general knowledge as opposed to specific knowledge about affecting an understatement of tax liability in a filing before the agency.

Banister and his attorney could not be immediately reached for comment Wednesday. The IRS does not comment on tax cases.

Banister is represented by Robert G. Bernhoft.

The United States is represented by Michael R. Pahl.

The case is Joseph Banister v. USA, case number is 16-15813, in the United States Court of Appeals for the Ninth Circuit.

--Editing by Jack Karp.
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Re: Banister, Joe

Postby The Observer » Thu Aug 11, 2016 9:16 pm

Dr. Caligari wrote:Quoting variously from “Hamlet...”


Get thee to a nunnery, Joe.
"I could be dead wrong on this" - Irwin Schiff

"Do you realize I may even be delusional with respect to my income tax beliefs? " - Irwin Schiff

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Re: Banister, Joe

Postby NYGman » Thu Aug 11, 2016 9:20 pm

Banister is represented by Robert G. Bernhoft.

Only the best for Joe. Class act lawyer, and an Expert on Tax, this should have been a slam dunk.
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Re: Banister, Joe

Postby Dr. Caligari » Thu Aug 11, 2016 9:28 pm

It's not a terrible brief, and at least one of the issues raised seems to have some potential merit (whether a 6701 penalty applies to a CDP submission).
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Re: Banister, Joe

Postby notorial dissent » Thu Aug 11, 2016 9:31 pm

I got the impression that he was arguing the wrong standard had been applied to him?
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: Banister, Joe

Postby Dr. Caligari » Thu Aug 11, 2016 10:48 pm

The Brief is here (if the link works for nonsubscribers):

http://assets.law360news.com/0826000/826733/https-ecf-ca9-uscourts-gov-n-beam-servlet-transportroom-servlet-showdoc-009028273709.pdf

It makes a number of arguments, some stronger than others, but none of them frivolous, and mostly avoids Tax Protestor rhetoric.
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Re: Banister, Joe

Postby notorial dissent » Thu Aug 11, 2016 11:38 pm

IIRC doesn't Banister usually get good representation when he gets himself in trouble rather than depending on his unreliable beliefs?
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: Banister, Joe

Postby jcolvin2 » Fri Aug 12, 2016 1:41 am

Dr. Caligari wrote:It's not a terrible brief, and at least one of the issues raised seems to have some potential merit (whether a 6701 penalty applies to a CDP submission).


Tax liability can be raised at a CDP hearing unless the taxpayer actually received a Notice of Deficiency or otherwise had a prior opportunity to dispute the liability. Section 6330(c)(2)(B). If the liability at issue was self-reported on tax returns, the taxpayer claim that the returns were incorrect and that true liability was lower. Montgomery v CIR, 122 T.C. 1 (2004).

The language of 6701 would seem to be broad enough to apply to a liability challenge in the CDP setting:

(a) Imposition of penalty. Any person—
(1) who aids or assists in, procures, or advises with respect to, the preparation or presentation of any portion of a return, affidavit, claim, or other document,

(2) who knows (or has reason to believe) that such portion will be used in connection with any material matter arising under the internal revenue laws, and

(3) who knows that such portion (if so used) would result in an understatement of the liability for tax of another person,

shall pay a penalty with respect to each such document in the amount determined under subsection (b).


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