How to get my

[Gregg]

Let me toss in here also that the UCC is in ALL cases state law and in almost no case would it have much to do with a Federal Tax case.

[Famspear]

Are the goal posts moving again?

They've been on the move since the original post.

Patriotdiscussions is afraid to come out and take a stand. The few times he has made a definite statement, he's been humiliated by cogent, speedy, incisive responses. He mostly probes around the edges of things, looking in futile effort for some sort of weakness, some sort of opening.

"OK, that didn't work. Let me try thi-- oops! Oh no. Wait. Oh, let's see, here let my try this...."

He still hasn't accepted the fact that he's outmatched. He also makes the same mistakes over and over (e.g., citing state law materials in a doomed effort to "prove" something about U.S. federal tax law, as Gregg and others have noted).

[Arthur Rubin]

4-5-313. Rules of evidence - Affidavits - Official notice.

In contested cases:

(1) The agency shall admit and give probative effect to evidence admissible in a court, and when necessary to ascertain facts not reasonably susceptible to proof under the rules of court, evidence not admissible thereunder may be admitted if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The agency shall give effect to the rules of privilege recognized by law and to agency statutes protecting the confidentiality of certain records, and shall exclude evidence which in its judgment is irrelevant, immaterial or unduly repetitious;

(2) At any time not less than ten (10) days prior to a hearing or a continued hearing, any party shall deliver to the opposing party a copy of any affidavit such party proposes to introduce in evidence, together with a notice in the form provided in subdivision (4). Unless the opposing party, within seven (7) days after delivery, delivers to the proponent a request to cross-examine an affiant, the opposing party's right to cross-examination of such affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after a proper request is made as provided in this subdivision (2), the affidavit shall not be admitted into evidence. "Delivery" for purposes of this section means actual receipt;


http://www.tncia.org/tca-uapa.html

(I'm not going to trim that post, as it could be asserted that I've changed the meaning. As I don't see the applicability to Federal (or even Tennessee) taxes, I'm not going to try.)

Even if it were applicable to a tax case, it would just make the affidavit equivalent to testimony; it could be admitted to evidence, and the opposing party cannot "cross-examine" the affiant. It does not state that it cannot be rebutted or refuted by contrary evidence (or affidavits), and it does not speak as to whether the Agency is required to accept it as fact. (As it clearly only applies to proceedings before an agency, it might[/i] apply to proceedings within the Tennessee Department of Revenue, so I guess it might be applicable somewhere, after all.)

[LPC]

I plan to decode my IMF and then send an affidavit to my district director to tell him of my findings, of course if I am wrong then he will rebut my affidavit.

I missed that part, but I thought that's where he might be going.

This is actually covered by the Tax Protester FAQ, under the heading "I am not required to file a tax return because I wrote a letter to the IRS demanding to know where in the Internal Revenue Code it says I am required to file and the IRS has failed to respond." You can't just mail stuff to the IRS and, when they fail to respond, claim that they are bound (or "estopped") in some way.

From the FAQ:

Tax protesters sometimes claim that the IRS should be “estopped” from assessing any taxes (or penalties) against them, but tax protesters don’t really understand the doctrine of estoppel. Equitable estoppel is a judicial doctrine created to prevent injustice, and the doctrine prevents a party from asserting a defense or claim against someone else if the other person has justifiably relied on statements (or actions) of the party. See, for example, Graff v. Commissioner, 74 T.C. 743, 761 (1980), aff’d. 673 F.2d 784 (5th Cir. 1982). However, estoppel is rarely applied against the IRS because it applies only if the taxpayer can establish all of the following elements: (1) There must be a false representation or wrongful misleading silence by the IRS (“wrongful” meaning that the IRS has a legal duty to respond, which as explained above is rarely true); (2) the error must be in a statement of fact and not in an opinion or a statement of law; (3) the person claiming the benefits of estoppel must be ignorant of the true facts; and (4) he must be adversely affected by the acts or statements of the person against whom an estoppel is claimed. Estate of Emerson v. Commissioner, 67 T.C. 612, 617-618 (1977); see also Lignos v. United States, 439 F.2d 1365, 1368 (2d Cir. 1971). It has therefore been held that there is no estoppel against the IRS unless the taxpayer has changed his position to his detriment, and there is no estoppel if the taxpayer simply owes the same tax that would have been owed even without the statement or silence by the IRS. See Reuben v. Commissioner, T.C. Memo. 2001-193.

The doctrine of equitable estoppel only applies to prevent what would otherwise be unjust harm to an innocent person, but tax protesters want to use the doctrine to enrich themselves and evade the taxes they would otherwise owe. No court has ever allowed such nonsense, and it’s safe to say that no court ever will.

The claim that “a person is not required to file a tax return or pay a tax unless the Internal Revenue Service responds to the person’s questions, correspondence, or a request to identify a provision in the Code requiring the filing of a return or the payment of tax” has been identified by the IRS as a “frivolous position” that can result in a penalty of $5,000 when asserted in a tax return or included in certain collection-related submissions. Notice 2007-30, 2007-14 I.R.B. 883.

[AndyK]

Are the goal posts moving again?

They've been on the move since the original post.

Patriotdiscussions is afraid to come out and take a stand. The few times he has made a definite statement, he's been humiliated by cogent, speedy, incisive responses. He mostly probes around the edges of things, looking in futile effort for some sort of weakness, some sort of opening.

"OK, that didn't work. Let me try thi-- oops! Oh no. Wait. Oh, let's see, here let my try this...."

He still hasn't accepted the fact that he's outmatched. He also makes the same mistakes over and over (e.g., citing state law materials in a doomed effort to "prove" something about U.S. federal tax law, as Gregg and others have noted).

It isn't that he's outmatched -- He's just wrong and it's very simple to post the facts showing that.

The problem with PD (and all others like him) is that they aren't willing to accept that the facts and laws conflict with their world view.

As I quoted some time ago, they all believe that there's a pony somewhere -- or perhaps a unicorn.

[wserra]

Would you like to see an actual legal answer to your post? Well, keep reading.

An Affidavit unrebutted stands as Truth.

As a general proposition, false. An unrebutted affidavit only carries the day if there is a legal duty to respond to it. And "I really, really, really think they have to respond" doesn't create a legal duty. Wanna look at your own cases?

affidavit uncontested unrebutted unanswered [United States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981); Cert. Denied, 50 U.S. L. W. 2169; S. Ct. March 22, 1982 1982]

The words "unrebutted" and "uncontested" do not appear in the case. It is therefore unclear why you use them. As for the rest, see below.

“Allegations in affidavit in support of motion must be considered as true in absence of counter-affidavit.” [Group v Finletter, 108 F. Supp. 327 Federal case of Group v Finletter, 108 F. Supp. 327]

Pardon my emphasis. A motion is one of those things that the law requires be answered, on pain of admitting the facts it alleges.

“Indeed, no more than affidavits is necessary to make the prima facie case.” [United States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981); Cert. Denied, 50 U.S. L. W. 2169; S. Ct. March 22, 1982]

Despite the fact that you put it in quotes, that language does not appear in the case. In Kis, the Seventh Circuit discusses what the govt must do to make out a prima facie case for its entitlement to a so-ordered subpoena for a taxpayer's records, per the well-known case of United States v. Powell, 379 U.S. 48 (1964). In that context, the following does appear: "The Government ordinarily proves these four elements by affidavits of the agents involved in the investigation. No more than that is necessary to make the prima facie case." Nothing to do with anyone having to respond to anything.

[Snip definition of "affidavit".]

affidavit uncontested unrebutted unanswered Morris v National Cash Register, 44 S.W. 2d 433 Morris v National Cash Register, 44 S.W. 2d 433, clearly states at point #4 that “uncontested allegations in affidavit must be accepted as true.”

affidavit uncontested unrebutted unanswered Morris vs. NCR, 44 SW2d 433 Morris v National Cash Register, 44 SW2d 433: “An Affidavit if not contested in a timely manner is considered undisputed facts as a matter of law.”

Neither of your "quotes" appears in the case. Is long habit preventing you from telling the truth?

What does appear in the case: "As the facts alleged in defendant's motion were sworn to by him and not contested, they should have been accepted as true." See that pesky "motion" stuff again? Yes, if you have a pending case - a real one, not one in the Common Law Court of Denny's - and you make a motion to which your adversary does not respond, the court may well deem your factual allegations true.

Non Rebutted Affidavits are "Prima Facie Evidence in the Case,-- "United States vs. Kis, 658 F.2d, 526, 536-337 (7th Cir. 1981);

"Indeed, no more than (Affidavits) is necessary to make the Prima Facie Case." -- Cert Denied, 50 U.S. L.W. 2169; S.Ct. March 22, 1982.

We've already discussed Kis, haven't we?

"Uncontested Affidavit taken as true in support of Summary Judgment." -- Seitzer v. Seitzer, 80 Cal. Rptr. 688

Do you know what "summary judgment" is? That's right, a motion in a pending case.

"Uncontested Affidavit taken as true in Opposition of Summary Judgment." -- Melorich Builders v. The SUPERIOR COURT of San Bernardino County (Serbia) 207 Cal.Rptr. 47 (Cal.App.4 Dist. 1984)

Hmm. Echo in here.

"Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading. . . We cannot condone this shocking behavior... This sort of deception will not be tolerated and if this is routine it should be corrected immediately." -- U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen, 64 A. 932.

Y'know, one of the funniest things about lawyer wannabes is that, when they try to cite real law, they usually disprove their own position without realizing it. Read that first part again. Silence only means anything when there is a duty to respond. An affidavit appears out of the blue, there is no such duty. Take it to that smallest room in your house and put it to good use.

[Pottapaug1938]

I might add that a "prima facie" case is far from one which would entitle anyone to summary judgment (when no material facts are in dispute). A prima facie case is at least the minimum case which would stop a motion to dismiss for failure to state a cause of action; but it is able to be overcome by the weight of contrary evidence. So, even assuming that an unrebutted affidavit could hypothetically be taken as true for this limited purpose, it will not be taken as true for the purpose of deciding, all by itself, the issues around which the case revolves.
And so, Patriotdiscussions loses again.

[notorial dissent]

Picky little thing that goes along with what WES said about Kis and Powell, subpoenas and warrants are generally only issued upon a sworn affidavit by the requesting party. It is a court action, but not during court proceedings. There are lots of things affidavits are used for, but none of them have anything to do with what you're trying to push.

Just out of curiosity, do you ever actually read any of the actual cases you post to justify your hallucinations? Other than some other ignorant sot's pretended knowledge of it that is? So far it would seem not as you are batting zip all.

[Patriotdiscussions]

Would you like to see an actual legal answer to your post? Well, keep reading.

An Affidavit unrebutted stands as Truth.

As a general proposition, false. An unrebutted affidavit only carries the day if there is a legal duty to respond to it. And "I really, really, really think they have to respond" doesn't create a legal duty. Wanna look at your own cases?

affidavit uncontested unrebutted unanswered [United States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981); Cert. Denied, 50 U.S. L. W. 2169; S. Ct. March 22, 1982 1982]

The words "unrebutted" and "uncontested" do not appear in the case. It is therefore unclear why you use them. As for the rest, see below.

“Allegations in affidavit in support of motion must be considered as true in absence of counter-affidavit.” [Group v Finletter, 108 F. Supp. 327 Federal case of Group v Finletter, 108 F. Supp. 327]

Pardon my emphasis. A motion is one of those things that the law requires be answered, on pain of admitting the facts it alleges.

“Indeed, no more than affidavits is necessary to make the prima facie case.” [United States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981); Cert. Denied, 50 U.S. L. W. 2169; S. Ct. March 22, 1982]

Despite the fact that you put it in quotes, that language does not appear in the case. In Kis, the Seventh Circuit discusses what the govt must do to make out a prima facie case for its entitlement to a so-ordered subpoena for a taxpayer's records, per the well-known case of United States v. Powell, 379 U.S. 48 (1964). In that context, the following does appear: "The Government ordinarily proves these four elements by affidavits of the agents involved in the investigation. No more than that is necessary to make the prima facie case." Nothing to do with anyone having to respond to anything.

[Snip definition of "affidavit".]

affidavit uncontested unrebutted unanswered Morris v National Cash Register, 44 S.W. 2d 433 Morris v National Cash Register, 44 S.W. 2d 433, clearly states at point #4 that “uncontested allegations in affidavit must be accepted as true.”

affidavit uncontested unrebutted unanswered Morris vs. NCR, 44 SW2d 433 Morris v National Cash Register, 44 SW2d 433: “An Affidavit if not contested in a timely manner is considered undisputed facts as a matter of law.”

Neither of your "quotes" appears in the case. Is long habit preventing you from telling the truth?

What does appear in the case: "As the facts alleged in defendant's motion were sworn to by him and not contested, they should have been accepted as true." See that pesky "motion" stuff again? Yes, if you have a pending case - a real one, not one in the Common Law Court of Denny's - and you make a motion to which your adversary does not respond, the court may well deem your factual allegations true.

Non Rebutted Affidavits are "Prima Facie Evidence in the Case,-- "United States vs. Kis, 658 F.2d, 526, 536-337 (7th Cir. 1981);

"Indeed, no more than (Affidavits) is necessary to make the Prima Facie Case." -- Cert Denied, 50 U.S. L.W. 2169; S.Ct. March 22, 1982.

We've already discussed Kis, haven't we?

"Uncontested Affidavit taken as true in support of Summary Judgment." -- Seitzer v. Seitzer, 80 Cal. Rptr. 688

Do you know what "summary judgment" is? That's right, a motion in a pending case.

"Uncontested Affidavit taken as true in Opposition of Summary Judgment." -- Melorich Builders v. The SUPERIOR COURT of San Bernardino County (Serbia) 207 Cal.Rptr. 47 (Cal.App.4 Dist. 1984)

Hmm. Echo in here.

"Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading. . . We cannot condone this shocking behavior... This sort of deception will not be tolerated and if this is routine it should be corrected immediately." -- U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen, 64 A. 932.

Y'know, one of the funniest things about lawyer wannabes is that, when they try to cite real law, they usually disprove their own position without realizing it. Read that first part again. Silence only means anything when there is a duty to respond. An affidavit appears out of the blue, there is no such duty. Take it to that smallest room in your house and put it to good use.

Great post, I can see I have more studying to do. Now I have just one question and everyone seems to skip it in favor of the legal duty to respond.

What is the moral duty to respond about? Where can I find information about this moral duty to respond?

[AndyK]

What moral duty to respond to what in what situation in which country?

Also, if anyone responds to you on this, which cases or citations do you intend to roll out to attempt to prove what point?

It would save a lot of time if you were to post things in the form of:

It is my understanding that ....
I base that on the following cases / laws: ...
All of which I retrieved from the following Internet sites:.....

[JamesVincent]

It would save a lot of time if you were to post things in the form of:

It is my understanding that ....
I base that on the following cases / laws: ...
All of which I retrieved from the following Internet sites:.....

To add to what Andy asked: Why is it different from a legal duty?

[Patriotdiscussions]

Last quote from wserra


"Silence can only be equated with fraud where there is a legal

or moral duty to speak,



or where an inquiry left unanswered would be intentionally misleading. . . We cannot condone this shocking behavior... This sort of deception will not be tolerated and if this is routine it should be corrected immediately." -- U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen, 64 A. 932.

[Gregg]

A legal duty to respond would be where one side has made a motion or complaint in a proceding.... and you have a duty to respond. I sue you for 28 cubic miles of gold because you parked in my reserved space. If you respond, or answer the complaint, we may have a trial to decide if A) you parked there B) it is indeed my space and maybe even C) if that entitles me to a whole lot of gold.
If my complaint is made in a real court of law (as opposed to a court convened at Denny's) and you fail to respond its just possible that I will win a default judgement, after which I can try to see if its worth trying to get my buckets of old from you.

[JamesVincent]

Tweel dealt with whether or not a special agent was required to advise an accountant he was interviewing that there was an ongoing criminal investigation. It looks like that there was in fact no criminal investigation at that time but the fact that a special agent had been assigned signified there was an intent to have one. The court stated:

In this case, the agent testified he intended, if appellant had consented to an interview
to advise him of his rights. Because the IRS requires only special agents to warn taxpayers of their rights, by assigning a revenue agent the IRS still succeeded in masking the undeniable criminal nature of this investigation and materially deceived this appellant.

Tweel para. 34
(footnotes omitted)
The court held that there was a legal duty for an agent to advise a defendant of the possibility of a criminal investigation since, according to the court, assigning such an agent is the first step in the criminal investigation. Your quote comes from para. 46

During oral argument counsel for the government stated that these procedures were
"routine". If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is the "routine" it should be corrected immediately.

[Pottapaug1938]

Last quote from wserra


"Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading. . . We cannot condone this shocking behavior... This sort of deception will not be tolerated and if this is routine it should be corrected immediately." -- U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032; Carmine v. Bowen, 64 A. 932.

And you point -- if any -- is...?

[fortinbras]

I made a point of looking it up. That line about "an unrebutted affidavit stands as truth" --- it does not appear in the words of any US court decision in the history of the republic.

The only (I'm not kidding) times that line shows up in a court case is when the litigant is pro se, and the pro se litigant says this in his pleadings and the court quotes it from his pleadings and then rejects it. In some instances the court has gone to the trouble of finding ways that the claims in the affidavit were rebutted by the opposition, and the pro se is merely pretending they weren't. In a couple of instances the court has said that his affidavit makes either absurd or implausible claims that cannot be accepted or tries to introduce his legal conclusions as if they were historic facts, which also cannot be accepted. In at least a few cases the court said that this line was not really a rule of law, or at least wondered where this line was gotten. In every decision in which a litigant relied on that line, he or she lost.

[Patriotdiscussions]

Thanks for rehashing legal duty folks.

What is the MORAL duty to respond? Also what is the duty to respond if an inquiry left unanswered would be intentionally misleading?

Still quoting that same post, thanks.


Btw we can leave out any replies dealing with legal duty, thanks anyway gregg

[LPC]

Great post, I can see I have more studying to do.

I very much doubt that you see any such thing. For example, your next statement is:

Now I have just one question and everyone seems to skip it in favor of the legal duty to respond.

What is the moral duty to respond about? Where can I find information about this moral duty to respond?

Well, the "more studying" thing seemed to turn into "just one question" pretty quickly, didn't it?

And the "just one question" seems to be asking us to explain the thing about which you "have more studying to do."

But the really important point is that the "moral duty" business comes from a quotation from a court case that YOU cited. But the case actually refutes what you claim.

So now you're asking *US* to provide you with research to explain how there might be a "moral duty" that would support *YOUR* claims.

It's like watching the evolution of a new form of chutzpah right before our eyes.

So, my response is GFY. (I hope you don't need me to explain the "F.")

[Patriotdiscussions]

Saying you don't know is ok.

[Famspear]

Saying you don't know is ok.

LPC has more knowledge about this stuff in his fingernails than you will ever possess, junior.

Take your own advice.