LPC wrote:Weston White wrote:Nikki wrote:
I wonder how you reconcile your concept of "one large paper tiger they have no authority for anything, concerning the individual" with the undeniable ability to levy wages and salaries, sieze savings, and sell property to collect taxes.
That sounds like a significant number of teeth to me.
Nope, Nope, Nope all Title 27. It is all very, very limited. 6331 - 27 Part 70
Why don't you answer Nikki's question?
You claim that the IRS is "paper," Nikki confronts you with the reality of actual levies and actual seizures, and you respond with references to paper.
It is *YOU* and Peter Hendrickson that are the "paper tigers" and not the IRS, because everything you say and do is all theory and words, and without any substance or any reality.
A. She did not pose a question, B. your closing comment does not even make sense, C.
The actual statutory language underlying 26 USC 6331 confines the application of its authority to a relatively narrow class of "taxpayer"-persons, distinguished by monthly (and other special return) filing requirements-- such as federal "employers", of course, as well as distillers, per section 3307 of the Revised Statutes (R. S.); brewers, per R. S. 3337 and 3338; and tobacco producers, per R. S. 3358 and 3390. Annual filers are not encompassed by this authority (although nothing precludes a normal effort by a government to sue such a filer should he or she declare a taxable amount of "income" on a return, resulting in a tax due, which then goes unpaid). That language reads as follows:
R. S. Sec. 3185. All returns required to be made monthly by any person liable to tax shall be made on or before the tenth day of each month, and the tax assessed or due thereon shall be returned by the Commissioner of Internal Revenue to the collector on or before the last day of each month. All returns for which no provision is otherwise made shall be made on or before the tenth day of the month succeeding the time when the tax is due and liable to be assessed, and the tax thereon shall be returned as herein provided for monthly returns, and shall be due and payable on or before the last day of the month in which the assessment is so made. When the said tax is not paid on or before the last day of the month, as aforesaid, the collector shall add a penalty of five per centum, together with interest at the rate of one per centum per month, upon such tax from the time the same became due; but no interest for a fraction of a month shall be demanded: Provided, that notice of the time when such tax becomes due and payable is given in such manner as may be prescribed by the Commissioner of Internal Revenue. It shall then be the duty of the collector, in case of the non-payment of said tax on or before the last day of the month, as aforesaid, to demand payment thereof, with five per centum added thereto, and interest at the rate of one per centum per month, as aforesaid, in the manner prescribed by law; and if said tax, penalty, and interest, are not paid within ten days after such demand, it shall be lawful for the collector or his deputy to make distraint therefor, as provided by law. (The interest rate established in this statute was changed to 6% per annum by section 404 of the Revenue Act of 1935.)
This language is helpfully reformatted in the original codification of the statute in 1939 (of which the current section 6331 of 26 USC is merely a convenient, consolidated rendering, with no change in meaning):
Part II—Assessment, Collection, and Refund
SEC. 3310. RETURNS AND PAYMENT OF TAX.
(a) MONTHLY RETURNS.—All returns required to be made monthly by any person liable to tax shall be made on or before the 10th day of each month, and the tax assessed or due thereon shall be returned by the Commissioner to the collector on or before the last day of each month.
(b) OTHER RETURNS.—All returns for which no provision is otherwise made shall be made on or before the 10th day of the month succeeding the time when the tax is due and liable to be assessed, and the tax thereon shall be returned as herein provided for monthly returns, and shall be due and payable on or before the last day of the month in which the assessment is so made.
(c) ADDITION TO TAX IN CASE OF NONPAYMENT.—When the said tax is not paid on or before the last day of the month, as aforesaid, the collector shall add a penalty of 5 per centum, together with interest at the rate of 6 per centum per annum, upon such tax from the time the same became due; but no interest for a fraction of a month shall be demanded: Provided, That notice of the time when such tax becomes due and payable is given in such manner as may be prescribed by the Commissioner.
(d) DEMAND FOR TAX, PENALTY, AND INTEREST.—It shall then be the duty of the collector, in case of the nonpayment of said tax on or before the last day of the month, as aforesaid, to demand payment thereof, with 5 per centum added thereto, and interest at the rate of 6 per centum per annum, as aforesaid, in the manner prescribed by law; and
(e) DISTRAINT.—If said tax, penalty, and interest, are not paid within ten days after such demand, it shall be lawful for the collector or his deputy to make distraint therefor, as provided by law.
As previously noted, it will be observed that the distraint (levy) authority is provided only in connection with "monthly return" filers and those required to file "other returns for which no provision [as to filing time] is otherwise made...". This excludes annual filers, for whom filing dates are specified by law, as reflected in the following language of the 1939 IRC:
CHAPTER 1- INCOME TAX
SUBCHAPTER B- GENERAL PROVISIONS
PART V- RETURNS AND PAYMENT OF TAX
SEC. 53. TIME AND PLACE FOR FILING RETURNS.
(a) TIME FOR FILING.—
(1) GENERAL RULE.—Returns made on the basis of the calendar year shall be made on or before the 15th day of March following the close of the calendar year. Returns made on the basis of a fiscal year shall be made on or before the 15th day of the third month following the close of the fiscal year.
(Although the derivation tables for section 6331(a) of the current code indicate that, in addition to section 3310 of the 1939 IRC, elements of sections 3660, 3690, 3692 and 3700 of that earlier code are also reflected in 6331(a)’s construction, none of these expand the scope of application of the levy power. It is only in 3310 that the relevant notice and demand requirement, around which all the other sections revolve, is presented. This accurately reflects the statutes underlying all the relevant derivative 1939 and current IRC sections-- which include R. S. 3187, 3188 and 3196, as well as sections 1016 of the Revenue Act of 1924, 1105 of the Revenue Act of 1932, 510 of the Revenue Act of 1934 and 404 of the Revenue Act of 1935. Only R. S. 3185 imposes the relevant notice and demand protocol, and thus establishes the class to which the related provisions apply. See your CtC Companion CD for the complete language of these code and statute sections.)
The actual statutory language of the "jeopardy" provision, also referenced in a vague and seemingly expansive manner in 26 USC 6331(a) (and presented here as accurately codified in 1939), underscores the limited lawful application of the authority reflected in that code section as a whole:
SEC. 3660. JEOPARDY ASSESSMENT.
(a) If the Commissioner believes that the collection of any tax (other than income tax, estate tax, and gift tax) under any provision of the internal-revenue laws will be jeopardized by delay, he shall, whether or not the time otherwise prescribed by law for making return and paying such tax has expired, immediately assess such tax (together with all interest and penalties the assessment of which is provided for by law). Such tax, penalties, and interest shall thereupon become immediately due and payable, and immediate notice and demand shall be made by the collector for the payment thereof. Upon failure or refusal to pay such tax, penalty, and interest, collection thereof by distraint shall be lawful without regard to the period prescribed in section 3690. (Emphasis added)
and D.
26 USC § 6203 Method of assessment
The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the assessment;
...among the rules or regulations prescribed by the Secretary, per the directive reflected at 26 USC 6203, we find:
26 CFR § 301.6203-1 Method of assessment
The district director and the director of the regional service center shall appoint one or more assessment officers. The district director shall also appoint assessment officers in a Service Center servicing his district. The assessment shall be made by an assessment officer signing the summary record of assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment. The amount of the assessment shall, in the case of tax shown on a return by the taxpayer, be the amount so shown, and in all other cases the amount of the assessment shall be the amount shown on the supporting list or record. The date of the assessment is the date the summary record is signed by an assessment officer. If the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.
...and in regard to "frivolous return" or other penalties assessable as a tax:
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.
and
26 USC § 6751. Procedural Requirements
(b) Approval of assessment
(1) In general
No penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination or such higher level official as the Secretary may designate.
Thus we can see that in order for there to be legal force behind a "notice" demanding money for a tax liability or "frivolous return" or other penalty assessable as a tax and threatening levy, the "notice" must be (or there must have already been) a statutory "notice and demand"; it can only be issued after a record of assessment has been signed by an assessment officer (who therefore becomes legally responsible in a personal capacity for the legitimacy of the assessment); and provisions are in place obliging the Secretary to furnish a copy of that record of assessment to the person alleged to be liable.
Furthermore, an assessment, in turn, can only be made pursuant to a signed return:
26 USC § 6201
(a) Authority of Secretary
The Secretary is authorized and required to make the inquiries, determinations, and assessments of all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title, or accruing under any former internal revenue law, which have not been duly paid by stamp at the time and in the manner provided by law. Such authority shall extend to and include the following:
(1) Taxes shown on return
The Secretary shall assess all taxes determined by the taxpayer or by the Secretary as to which returns or lists are made under this title.
"For a levy to be statutorily authorized in the circumstances here, two conditions must be fulfilled. First, a 10-day notice of intent to levy must have issued. See 26 U.S.C. § 6331(a). Second, the taxpayer must be liable for the tax. Id. 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).
And 26USC means absolutely nothing at all.
