Pablo's preaching on a Tax Court transcript

[jg]

...
Now it’s time for the cross-examination:

IRS: I’d like to direct your attention to Exhibit A. This is the Form 1040 for the year 2000. On page two, is that your signature at the bottom?

MR. SMITH: It looks like it might be. This isn’t an original copy, and I don’t believe you have an original copy in evidence, but this copy looks like—

THE COURT: Do you have any reason to doubt it’s your signature?

MR. SMITH: No, your Honor, I don’t.

THE COURT: All right.

[My comments: The IRS had the burden of proof to show that the copy in the IRS counsel's hand is a true and authentic copy of Mr. Smith’s original. Not knowing the Rules of Evidence, Mr. Smith just relieved the respondent of this burden by authenticating the IRS’s copy. Mr. Smith really should not be helping his opponent; doing so amounts to shooting himself in the foot. According to the rules of evidence, if a witness has no knowledge regarding the making of the copy he was shown in court, he is not qualified to answer the question about his signature on that copy. Mr. Smith (the witness) has first-hand knowledge ONLY of the original he signed with an ink pen. This may all sound like nit-picking, but it’s not. Mr. Smith should have forced the IRS to authenticate the document by calling in the appropriate witness. If such a witness was never put on the list of witnesses, perhaps the document could have been rejected, making the IRS’ case more difficult. Such an inconvenience could have caused the IRS to drop the whole case. Who knows? Court battles are lost by pro se litigants mostly because they lack knowledge or experience of court procedure and the rules of evidence. This is one illustration. Now that the unwelcome document has been authenticated, the IRS lawyer proceeds, almost gloating with victory.]

[How did this document get into the court room? Now that the document has been authenticated, albeit reluctantly, the petitioner is in a bind. He knows it will seriously prejudice his case. What happened? According to the petitioner's own testimony, this document is rescinded and irrelevant, yet he seems powerless to raise an objection. He’s being drawn inexorably into a trap. Look how sticky things get by not excluding such documents before the trial begins. Many times the actual court trial is won or lost before either side steps into the court room. This doesn’t mean that what happens during the court proceeding is not important; it is. But at this point, the petitioner is already in serious trouble caused by a document that shouldn’t even be under discussion.]

Q Please look at page one, line seven, wages, salaries. Did you enter a zero for that year?

A That looks like a zero, yes, sir.

Q I’d also like to continue to the attachments to Form 1040, still in Exhibit A, the Forms 4852. Is this the Form 4852 that you prepared for <Company>?

A The one that I mistakenly prepared in trying to correct an invalid W-2.

Q Okay. On number seven, line F, is the amount there $nnn.nn?

A. That’s what I’m seeing on the page, yes.

Q. That’s what you prepared? That’s what you wrote?

A. This document was prepared trying to correct a W-2, and I’ve rescinded my signature on it, and I realize that it was prepared in error, the whole document.

Q. But that’s what you wrote when you prepared this?

A. That’s what it looks like.

THE COURT: Mr. IRiS, when a document has been stipulated, it’s in evidence. He said it’s his return. You don’t have to ask him what it says. Just tell him what it says.

IRS: Yes, your Honor.

THE COURT: Do you understand what I’m getting at? It’s been stipulated. You’re not establishing anything by these questions.

[My comments: Mr. Smith had made the argument that the documents purporting to be Forms W-2 were invalid. This means that any document that purports to be a substitute for a Form W-2 (a 4852) is equally invalid. So why are these documents under discussion in the court room at all? They shouldn’t be. In the discovery process, such documents and any other documents that rely on them must be excluded from being entered into evidence on the grounds that they are invalid and irrelevant. By delaying during the discovery process, the allotted time passed till it ran out. The discovery process was not done, and so the invalid documents were stipulated to, and were entered into evidence. At this point in the trial, Mr. Smith lost his case, no matter what his arguments. Like the judge said: “When a document has been stipulated, it’s in evidence.” Even with a very powerful argument, Mr. Smith did not do the homework needed to keep out irrelevant documents when he had the opportunity to do so. Those documents were his undoing. At this point, things go from bad to worse.]

IRS: Why do you enter zero for your wages on your return for year 2000?

THE WITNESS: I object to that question, your Honor.

THE COURT: On what grounds?

THE WITNESS: It’s outside the scope of my pleadings or my testimony.

IRS: I don’t believe it goes outside the scope of his testimony. It goes to the very heart of the issues that he testified about.

THE COURT: Your testimony is basically that these weren’t wages.

THE WITNESS: I was trying to show that the information returns are invalid and contain invalid data.

THE COURT: I don’t know that he testified about his 1040 return. Did he?

IRS: I don’t remember specifically, your Honor, but it has been stipulated. And to the extent he testified about the incorrectness of the information returns, the wages that were reported on them are certainly part of those returns.

[My comments: Notice a crucial point here: Mr. Smith seems to forget that no information returns exist! He cannot testify about the incorrectness of non-existent documents. Testimony about documents that purport to be information returns is irrelevant until the validity of the purported documents is settled. The essence of Mr. Smith’s argument is that certain companies subscribed documents purporting to be Forms W-2. At this point it’s too late for Mr. Smith to try to grasp the full meaning of his argument. Now he’s under pressure; it’s very intimidating being under the gun in court. He’s barely hanging on by his fingernails, and he’s so nervous his knees are knocking. The lawyer for the IRS constantly ignores the prima facie case that Mr. Smith made. Why? The invalid documents were stipulated to and thus admitted as evidence which both sides agree to. Mr. Smith’s legal arguments, as powerful as they are, are reduced to legal babble. Mr. Smith’s words say one thing and the facts admitted before the Court say another. Guess what: in court, the facts always win the day.]

THE COURT: Well, he testified about the returns and I’m sure you can ask him what he did with the information on them and how it was reflected on his returns. So I think he’s overcome your objection. You have to answer the question.

[My comments: Again, no information returns exist! So how can Mr. Smith testify about them? Only documents purporting to be information returns. Sadly, since the returns were stipulated to and entered into evidence as fact, I believe that if the petitioner had objected on this basis, the Court would have overruled the objection.]

THE WITNESS: Could you repeat the question, please?

THE COURT: Why did you enter zero on the return?

[My comments: Again, no information returns exist! However, the petitioner can do nothing about it at this point. It's too late to do his homework now.]

THE WITNESS: Item seven is listed as a place to put the amount for wages, salaries, tips, etc. I guess to answer the question, your Honor, I’d have to ask the respondent what amount is listed there and what is the definition for the term wages we’re working off of.

THE COURT: Well, zero because you’re saying you didn’t have any wages. Isn’t that your answer? Why did you put zero?

THE WITNESS: Based on my understanding of the legal definition, but that’s why I’m asking the question, because I’m not sure—

THE COURT: He asked you why you put zero, and you’re manufacturing a lot of assumptions. And I assume from what you’ve told me that it says wages and you didn’t believe you had any wages. Isn’t that basically it?

THE WITNESS: Yes, you Honor.

[My comments: The last nail has been hammered into the lid of the coffin. Invalid documents were admitted into the record as stipulated fact due to oversight or neglect by the petitioner. This means the documents are admitted by both the petitioner and respondent as evidence. The purported information returns cannot be ruled out as invalid if they have been admitted as evidence by both opposing sides. Mr. Smith’s argument is as good as gone! The IRS now has the petitioner at his point of maximum weakness. He doesn’t have a leg to stand on. Against the petitioner’s will, the IRS forces the issue into the “wages” realm. The facts admitted into evidence before the Court say that the petitioner received wages. The IRS is getting the petitioner to admit he earned wages, too, albeit zero wages. Note the patent contradiction: The Forms W-2 say he earned a lot more than zero wages. The petitioner’s 4852s say he earned zero wages. Either way, there’s no question that the petitioner earned wages. This means the issue regards a math error. The W-2 has the presumption of correctness, not the 4852; therefore, petitioner’s self-serving assertions that he received zero wages are incorrect, and all the arguments and sworn testimony in the world are insufficient to back up his zero-wage claim. Even the petitioner’s sworn testimony of zero wages on a Form 4852 is meaningless to the court; it is obviously erroneous in the eyes of the Court. Doesn't this sound oddly similar to Pete’s case?]
...

[The Observer]

If such a witness was never put on the list of witnesses, perhaps the document could have been rejected, making the IRS’ case more difficult. Such an inconvenience could have caused the IRS to drop the whole case.

Note the weasel words that I bolded. Any one that got to this sentence should realize that Pablo is starting his own version of 3-card Monte.

Who knows?

Good question, Pablo. We certainly know that you don't know, otherwise you wouldn't have hedged your bets regarding your theory on challenging the evidence.

[Nikki]

Pablo, like Pete, makes words mean what he wants, but you have to read this entire post (or skip to the bottom) to get to that point.

In the instant case, Pablo makes "stipulated" an escape clause for himself. He thus chanages the entire case into the typical "I was right, but I argued it wrong" excuse for losing a court case.

He sort of has a point, but he's approaching it from the wrong angle and probably in the wrong time zone.

In all likelihood, the Chief Counsel attorney sent the CtCrackHead a formal Request For Admissions to stipulate details which would then be introduced to the Court without argument.

Mr Pro Se CtC didn't comprehend the significance of the document and probably ignored it. The attorney then moved (successfully) the court to have the admissions deemed stipulated.

At that point, the IRS had everything it wanted on the record unopposed. Mr CtC then had about as much of a chance as does a light bulb facing a high-velocity projectile.

Pablo's analysis of the transcript isn't the most revealing thing about him. Instead, his CtC forum post details the incredibly flawed logic behind his defense theory -- summarized in his own words as "the vast majority of workers in the several states party to the U.S. Constitution have had no employer - EVER!". Thus, he opens his discussion or warping words to achieve a predetermined outcome.

[LaVidaRoja]

So, the hypothetical CTC petitioner denies all of the stipulations sent to him. Denies for lack of foundation/evidence/'proof' Clearly, an answer to the request for admissions has been filed. Is the Tax Court willing to hold an evidentiary hearing on this? Could THAT be the CtC'rs 'magic bullet'? The Tax Court ( and IRS Counsel) are sufficiently burdened with cases that 80%++ get settled without trial. Will IRS Counsel AND the Tax Court be willing to hold an evidentiary hearing?

[LPC]

In the instant case, Pablo makes "stipulated" an escape clause for himself. He thus chanages the entire case into the typical "I was right, but I argued it wrong" excuse for losing a court case.

No, not "I was right, but I argued it wrong," but "I was right, but HE argued it wrong."

And why is Pablo hiding the name of the petitioner?

Could it be that Pablo would rather that people not ask the petitioner ("Smith") about where he got his trial strategy/preparation going into Tax Court?

[Judge Roy Bean]

Not sure of procedure in tax court, but I believe he could have moved for a hearing on discovery in an attempt to preclude the use of the document or at least object to it for the record and then prepare to argue for the objection at trial. Whether that would have been a successful strategy seems doubtful, IMHO. Scanned/digital and photocopies of signed docs are VERY difficult to challenge in this day and age.

The other thing Pablo and others who love to parse transcripts forget is the demeanor of the witness and how hard it is for many people to lie effectively on the stand or even during a deposition. A good trial attorney can usually roast them over the hot coals long enough for it to be shown what they really are, and that means they're soon shown to be knowing and willful perpetrators instead of just misguided believers.

[Nikki]

So, the hypothetical CTC petitioner denies all of the stipulations sent to him. Denies for lack of foundation/evidence/'proof' Clearly, an answer to the request for admissions has been filed. Is the Tax Court willing to hold an evidentiary hearing on this? Could THAT be the CtC'rs 'magic bullet'? The Tax Court ( and IRS Counsel) are sufficiently burdened with cases that 80%++ get settled without trial. Will IRS Counsel AND the Tax Court be willing to hold an evidentiary hearing?

The Tax Court, in general doesn't hold "evidentiary" hearings.

The parties are required to meet in advance of the trial, exchange information, and submit stipulations to the Court. If they can not come to an agreement, each side will submit its version of the facts.

Sometimes, one perty will move the Court to suppress certain evidence. In that case, the Court (after considering opposing motions) will sit in camera to ponder the evidence and the validity of exclusion.

All other evidentiary considerations are made at trial by formal objections or via motions.

[The Observer]

Scanned/digital and photocopies of signed docs are VERY difficult to challenge in this day and age.

Which I suspect Pablo alreadys knows and thus the reason for his hedging on the success of challenging the evidence. Pablo is posturing for one reason only, and that is to grab and fleece as many of the CtC crowd who feel abandoned because Pete is too busy with his own trial.

[Arthur Rubin]

I saw the argument Pablo made as fatally flawed as being self-inconsistent. If the W-2 isn't valid, then neither is the substitute W-2, namely the 4852. However, "Mr. Smith" attested to the 4852 under penalty of perjury.

Guilty of perjury, either then or now. Next case!

[wserra]

Scanned/digital and photocopies of signed docs are VERY difficult to challenge in this day and age.

And to understand why, one really need not stray far from FRE 1003: "A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."

Hint to Pablo: it is not the best strategy, when handed a clean copy of a document one has signed and asked if it bears one's signature, to say things like, "They have to prove that it's mine!" or even "Well, it looks as if it could be". Judges and juries tend to infer - quite correctly - that one is evading and thus conscious of one's culpability.

I started to go through the rest of Pablo's BS and stopped, because it's all like this. The Observer is quite right - when the Pete is away, the Pablo will play.

[Arthur Rubin]

I saw the argument Pablo made as fatally flawed as being self-inconsistent. If the W-2 isn't valid, then neither is the substitute W-2, namely the 4852. However, "Mr. Smith" attested to the 4852 under penalty of perjury.

Guilty of perjury, either then or now. Next case!

Actually, I don't think he would not be guilty of perjury until he was tried and convicted in a court of law.

I suppose so. Can the Tax Court find a taxpayer guilty of perjury, though? If they can, they probably should (have) done so in the case covered by this transcript.

[Nikki]

The Tax Court is a court of extremely limited jurisdiction.

It has absolutely no power concerning criminal acts except as they relate to the tax-dollar issues.

A Tax Court judge or a Counsel attorney can refer his concerns about possibly perjured testimony or fraudulent (doctored) evidence to the Department of Justice.

However, the Court does have the power to impose a $25,000 sanction on a petitioner. That would probably be much more painful than a jail term for perjury.

[Judge Roy Bean]

The Tax Court is a court of extremely limited jurisdiction.

It has absolutely no power concerning criminal acts except as they relate to the tax-dollar issues.

A Tax Court judge or a Counsel attorney can refer his concerns about possibly perjured testimony or fraudulent (doctored) evidence to the Department of Justice.

I would hope that even in Tax Court it would be a requirement. Normally a stern warning results in the prospective perjurer's reconsidering his or her testimony. If they persist I would think a Tax Court Judge would do what most criminal court Judges would - refer the matter to the local DA or if it's a Federal case, the US Attorney's Office.

However, the Court does have the power to impose a $25,000 sanction on a petitioner. That would probably be much more painful than a jail term for perjury.

Something tells me, that like most TP/TD cases where the petitioner is essentially broke, a dollar amount sanction becomes meaningless pretty quickly, but a criminal conviction for perjury is a gift that just keeps on giving.