Article III Court or Bust!

[The Observer]

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STUART B. HODGES,
Defendant-Appellant.

Release Date: NOVEMBER 28, 2007


[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Non-Argument Calendar

D. C. Docket No. 06-00758-CV-JOF-1

Appeal from the United States District Court
for the Northern District of Georgia

(November 28, 2007)

Before BARKETT, MARCUS and WILSON , Circuit Judges.

PER CURIAM:

Stuart B. Hodges, pro se, appeals the district court's order granting the government's petition to enforce the Internal Revenue Service ("IRS") summons against Hodges, pursuant to 26 U.S.C. sections 7402(b), and 7406(a), and denying his motion to dismiss. We affirm.

As an initial matter, Hodges' argument that the tax laws are not "positive law" is meritless. Although Title 26 of the United States Code may not have been enacted into positive law, Hodges has not established that there are any inconsistencies between the United States Code and the tax Statutes at Large. Hodges' argument that he was denied access to an Article III court because the magistrate conducted the hearing is also without merit because the district court made the ultimate decision to grant the government's petition and deny Hodges' motion.

We reject the argument that the district court did not have personal jurisdiction over Hodges and violated Hodges' due process and equal protection rights because Hodges admits he is a citizen of Georgia and is domiciled in Georgia. In addition, the record refutes Hodges' arguments that the district court and the magistrate judge ignored his contentions regarding personal jurisdiction. The district court had jurisdiction over the petition pursuant to section section 7402(b) and 7604(a), and it did not err when it granted the government's petition to enforce the IRS tax summons. The IRS satisfied their initial minimal burden for enforcement when it presented the sworn affidavit of the IRS Officer who attested that: (1) the summons was issued in pursuit of the investigation into Hodges' tax liability for the years 1998, 1999, 2000, and 2001; (2) the books, papers, records, or other data sought by the summons were not already in the IRS's possession; (3) the material was necessary to the investigation; and (4) the IRS took all required administrative steps prior to the issuance of the summons. Hodges' arguments that he is not subject to the income tax laws and that the IRS and district court lacked jurisdiction are frivolous and without merit. Further, Hodges waived the argument that the magistrate judge should have recused himself because he did not raise that issue in the district court.

Based upon the foregoing and our review of the record and the parties' briefs, we conclude that the district court did not err when it denied Hodges' motion to dismiss and granted the government's petition to enforce an IRS tax summons against Hodges.

AFFIRMED.

[Dezcad]

There is also a pending foreclosure of an IRS lien in the District Court for the Hodges.

For a sample of the Hodges' beliefs, you can see one of their pleadings in that case here.

[grixit]

could someone explain "special appearance" to me, please.

[Prof]

could someone explain "special appearance" to me, please.

This is an appearance to contest personal jurisdiction. For example, if I sue Dave's Car Repair Service, Inc., of Rapid City, SD, in the Bexar County law courts, SA, TX, and serve Dave with process, Dave may not want to get sued in SA, TX. He would then enter a "special appearance," not waiving jurisdiction over the person of Dave's Corp. (A general appearance, in state or federal court, waives jurisdiction over the person of the defendant -- only subject matter jurisdiction is not waivable.)

At a subsequent hearing, Dave Corp. would get to show that it did not have enough contacts with Texas in order the be dragged into the Texas courts. (This is called "long-arm jurisdiction.")

In federal practice, the Defendant would file a motion under FRCIVPRO 12(b) in order to contest in personam jurisdiction.

This should now be as clear as mud to you.

[grixit]

So this is one situation in which the magic words actually work?

[The Observer]

Only to the extent that you get to appear before an admiralty judge in S.D. instead of Texas.

[Prof]

So this is one situation in which the magic words actually work?

Actually, all of the "special appearance" assertions seem to be by TP idots who claim that they are not subject to the personal jurisdiction of various federal courts because they are not citizens of the US/USA, etc., or that the USA is in bankruptcy or whatever.

First, they often seem to challenge personal jurisdiction, which is generally irrelevant in federal court -- since generically, federal courts have original if not exclusive jurisdiction over matters arriving under the laws of the federal government. The issue for individuals involved in litigation with the US over taxes is generally a question of venue. I cannot be sued in a district which is not the district in which I reside or have my principal place of business or significant assets. In other words, the IRS cannot sue me in Houston (S.D. Tx) but must sue me in San Antonio, which is in a separate federal district (WD). This venue issue is waivable, if I do not care or if I do not assert my rights with a 12(b) motion filed before I enter an answer.

TP's also seem to confuse jurisdiction over the person with jurisdiction over the cause -- which is called subject matter jurisdiction. Since federal courts have primary, if not exclusive jurisdiction over federal tax matters, subject matter jurisdiction is a moot point (although, since federal courts are courts of limited jurisdiction, subject matter jurisdiction can be raised at any point during the case and is never waived, unlike in personam, which can be waived by filing an answer or making a general appearance without first filing a motion under Rule 12 (b).)

All in personam jurisdiction is about is the right to be sued in the correct state or federal district and all venue is about is that the party has a right to insist on the correct venue.

Subject matter jurisdiction is more fundamental. Courts which are courts of limited jurisdiction -- federal district courts, for example -- can only try cases as to which Congress has given them jurisdiction. If they do try a case outside of their jurisdictional grant, the case can be "voided" on motion at any time, including while on appeal. Subject matter
jJurisdiction can be raised over and over and is never waived.

[rachel]

So this is one situation in which the magic words actually work?

Actually, all of the "special appearance" assertions seem to be by TP idots who claim that they are not subject to the personal jurisdiction of various federal courts because they are not citizens of the US/USA, etc., or that the USA is in bankruptcy or whatever.

First, they often seem to challenge personal jurisdiction, which is generally irrelevant in federal court -- since generically, federal courts have original if not exclusive jurisdiction over matters arriving under the laws of the federal government. The issue for individuals involved in litigation with the US over taxes is generally a question of venue. I cannot be sued in a district which is not the district in which I reside or have my principal place of business or significant assets. In other words, the IRS cannot sue me in Houston (S.D. Tx) but must sue me in San Antonio, which is in a separate federal district (WD). This venue issue is waivable, if I do not care or if I do not assert my rights with a 12(b) motion filed before I enter an answer.

TP's also seem to confuse jurisdiction over the person with jurisdiction over the cause -- which is called subject matter jurisdiction. Since federal courts have primary, if not exclusive jurisdiction over federal tax matters, subject matter jurisdiction is a moot point (although, since federal courts are courts of limited jurisdiction, subject matter jurisdiction can be raised at any point during the case and is never waived, unlike in personam, which can be waived by filing an answer or making a general appearance without first filing a motion under Rule 12 (b).)

All in personam jurisdiction is about is the right to be sued in the correct state or federal district and all venue is about is that the party has a right to insist on the correct venue.

Subject matter jurisdiction is more fundamental. Courts which are courts of limited jurisdiction -- federal district courts, for example -- can only try cases as to which Congress has given them jurisdiction. If they do try a case outside of their jurisdictional grant, the case can be "voided" on motion at any time, including while on appeal. Subject matter
jJurisdiction can be raised over and over and is never waived.

What Hodges didnt do was prove he wasnt a 14th amendment federal "U.S. citizen" nor out of the jurisdiction to be subject matter.

[LPC]

What Hodges didnt do was prove he wasnt a 14th amendment federal "U.S. citizen" nor out of the jurisdiction to be subject matter.

Citizenship is irrelevant to jurisdiction. If you live within the geographical district of the court, you are subject to the jurisdiction of the court regardless of whether you are a "14th Amendment citizen, a "sovereign state citizen," or an illegal alien.

[Prof]

I simply have no idea what this statement means:

What Hodges didnt do was prove he wasnt a 14th amendment federal "U.S. citizen" nor out of the jurisdiction to be subject matter.

First, all of the internet/suijuris crap about the difference between citizens of the US or citizens of the USA or state citizens or 14th amendment citizens is just that -- crap.

A person born in the U.S. is a citizien of the U.S., for all purposes, including but not limited to the laws of the country and the laws of the state in which that person is a resident (or the laws of DC or the VI or PR). The 14th Amendment was passed to make sure that freed slaves and other blacks received all of the protections of citizenship, but it also applies to protect the rights of folks who are not black.

State citizenship is generally determined only by residence, although those who wish to do so -- say military folks -- can retain citizenship in states in which they do not reside. Students can and somtimes do the same (my son is in school in CA, but retains his Texas state residency/citizenship).

State citizenship determines where you vote, where you get your driver's license, and where you pay income taxes -- although if you earn money in another state, you may get to pay taxes there, too (no state income tax in TX, but my son, who is employed in CA, gets to pay CA income taxes).

You cannot "be out of the jurisdiction to be subject matter." That phrase makes no sense. Either a federal court has subject matter jurisdiction, conferred by the Constitution (S.Ct.) or Congress (Judiciary Acts) or it does not. In the case of state courts, jurisdiciton is conferred by the State constition and by legislatures. For example, in Texas, County-Courts-At-Law are sometimes limited to jurisdiction over amounts in controversy of less than $XXXXXXXXXXXXX or over criminal matters which are defined as felonies.

However, if you are subject to in personam jurisdiction, and the court to which you are "taken" has a statutory or other grant of jurisdiction over the cause, nothing you say or pretend will just make it go away. In personam jurisdiction is determined largely by the ability to drag you -- kicking, screaming, or whatever-- into a courtroom. If you are a resident of another state, "long-arm jurisdiction" may apply. Whether you are a citizen of the state, the federal district, or the US may be relevant to such issues as venue, but are usually absolutely irrelevant to in personam jurisdiction except in complex cross-border litigation.

I am deliberately leaving out cites to cases.

This is an accurate description of the law, set out by an ex-law prof. who is also an ex-judge and has been doing this stuff for about 35 years.

[Dezcad]

What Hodges didnt do was prove he wasnt a 14th amendment federal "U.S. citizen" nor out of the jurisdiction to be subject matter.

Kids, I think Rachel was making a funny and it may have Nike'd right past you.........

Then you haven't followed Rachel's posts here and on LH in enough detail . I'm certain that this was far from a funny comment by rachel but a strongly held belief.

So Rachel, was your comment in jest?

[rachel]

What Hodges didnt do was prove he wasnt a 14th amendment federal "U.S. citizen" nor out of the jurisdiction to be subject matter.

Citizenship is irrelevant to jurisdiction. If you live within the geographical district of the court, you are subject to the jurisdiction of the court regardless of whether you are a "14th Amendment citizen, a "sovereign state citizen," or an illegal alien.

Now thats just not how the courts have interpreted the 14th.
The 14th doesnt say this "

Citizenship is irrelevant to jurisdiction

". Matter of fact it says "

and subject to the jurisdiction thereof

".
You have anything to support this:

If you live within the geographical district of the court, you are subject to the jurisdiction of the court regardless of whether you are a "14th Amendment citizen, a "sovereign state citizen," or an illegal alien.

Otherwise its just your opinionated hearsay. Because the 14th is the only place you find "U.S. citizen"
Title 26 only says "U.S. citizens" are liable and nothing mentioned about state Citizens being the jurisdiction.
There are case cites that relate to different rights belonging to the different citizenships.
Thats enough to dispell your socialist cool aid theories.

[Judge Roy Bean]

I've often noted to fools who purport to be able to thwart the system with specious jurisdictional challenges that if you're standing in front of a Judge the chances of you being in a court without jurisdiction are about zero.

But it makes good Internet chat mythology to spin tales of victory.

[Nikki]

Rachel:

I will try to use short words to keep this post on your level.

The fourteenth amendment does not have a single thing to do with the jurisdiction (sorry about the big word) of a court.

The jurisdiction (there's that nasty word again) of a court is based on two things:

1 - subject matter: do the laws related to the case at hand assign it to the court?

2 - personal: does the person (people) involved with the case reside within the physical area assigned to the court?

If your 14th amendment theory had any merit, how would ANY court in this country be able to try an alien, not-citizen murderer for the crime of murder?

Don't bother trying to answer, unless you can come up with something really stupid and funny.

[LPC]

What Hodges didnt do was prove he wasnt a 14th amendment federal "U.S. citizen" nor out of the jurisdiction to be subject matter.

Citizenship is irrelevant to jurisdiction. If you live within the geographical district of the court, you are subject to the jurisdiction of the court regardless of whether you are a "14th Amendment citizen, a "sovereign state citizen," or an illegal alien.

Now thats just not how the courts have interpreted the 14th.
The 14th doesnt say this "

Citizenship is irrelevant to jurisdiction

". Matter of fact it says "

and subject to the jurisdiction thereof

".

It's not often I get to quote Lewis Carroll:

"Why, you might just as well say that 'I see what I eat' is the same thing as 'I eat what I see'!"

Similarly, according to Rachel:

"Why, you might just as well say that 'Citizens are born in the jurisdiction' is the same as 'Jurisdiction is only over citizens!'"

Meanwhile, all of those illegal aliens are free to rape and loot at their leisure because there are totally outside of any jurisdiction.

[LPC]

The jurisdiction (there's that nasty word again) of a court is based on two things:

1 - subject matter: do the laws related to the case at hand assign it to the court?

2 - personal: does the person (people) involved with the case reside within the physical area assigned to the court?

I once had to litigate a jurisdictional issue, and one court defined "jurisdiction" very simply: Does the court have the power to grant the relief requested?

In order for the court to have the power to grant the relief requested, the court must have two things:

1. The court must have been given the power by the legislature to grant the relief requested; and

2. The court must have legitimate power over the persons or things who would be affected by the relief requested.

The first is what we call "subject matter jurisdiction" and the second is what we call "in personam jurisdiction."

[wserra]

Citizenship is irrelevant to jurisdiction. If you live within the geographical district of the court, you are subject to the jurisdiction of the court regardless of whether you are a "14th Amendment citizen, a "sovereign state citizen," or an illegal alien.

Now thats just not how the courts have interpreted the 14th.

What "courts" would those be?

Basketball? Tennis? Courtyard by Marriott?

[Quixote]

Don't bother trying to answer, [Rachel,] unless you can come up with something really stupid and funny.

Based on her posts on this thread alone, I think you can count on her complying.

[rachel]

Don't bother trying to answer, [Rachel,] unless you can come up with something really stupid and funny.

Based on her posts on this thread alone, I think you can count on her complying.

U.S. vs. Susan B Anthony, 24 fed. case289 (1873)

" The rights of the Citizens of the states, are such are not under consideration in the 14th Amendment and are fully guarranteed by other provisions"

There is a clear distinction between national and State citizenship, U.S. citizenship does not entitle citizen of the privileges and Immunities of the Citizen of the State. K. Tashiro v. Jordan, 256 P 545, affirmed 49 S Ct 47, 278 US 123

[LPC]

Don't bother trying to answer, [Rachel,] unless you can come up with something really stupid and funny.

Based on her posts on this thread alone, I think you can count on her complying.

U.S. vs. Susan B Anthony, 24 fed. case289 (1873)

" The rights of the Citizens of the states, are such are not under consideration in the 14th Amendment and are fully guarranteed by other provisions"

There is a clear distinction between national and State citizenship, U.S. citizenship does not entitle citizen of the privileges and Immunities of the Citizen of the State. K. Tashiro v. Jordan, 256 P 545, affirmed 49 S Ct 47, 278 US 123

Now find a case that says that the jurisdiction of a court is dependent on the citizenship of the parties.