Barringer on the verge of trouble again

[Dezcad]

In the appeal of the suit foreclosing a tax lien on Springer's property, the 10th Circuit has admonished Barringer for making blatantly frivolous statements, which are all based on the ridiculous argument that

United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LINDSEY K. SPRINGER, individually and as Co-Trustee of the S.L.C.A.
Family Trust, Defendant-Appellant,

and

REGINA M. CARLSON, as Co-Trustee of the S.L.C.A. Family Trust;
MARTHA F. MOORE, individually and as Trustee of the W.T. Moore and
Martha F. Moore Revocable Trust dated June 12, 2002; W.T. SMITH; JANET S.
SMITH, Defendants.
No. 10-5037
(D.C. No. 4:08-CV-00278-TCK-PJC)
(N.D. Okla.)
ORDER
Before O’BRIEN and HOLMES, Circuit Judges.

Lindsey K. Springer has filed a motion styled “Motion for Stay of District Court Orders and Motion for Stay of Confirmation of Sale of Appellant’s Real Estate,” seeking a stay of the district court’s March 3 and 16, 2010, orders pending appeal and a stay of the confirmation of the sale of his home, which he states is scheduled for a hearing on December 15, 2010. The motion really asks us to reconsider our April 14, 2010, order denying his “Emergency Motion for Stay of
Final Judgment and Sale Pending Appeal.” This appeal has been pending for months—since March 2010—but Springer filed the current motion at the last minute. He still has not shown a probability of success on the merits of his appeal. See Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001).

This motion, though filed by counsel Jerold W. Barringer, contains numerous blatantly frivolous statements, such as: On page 4, “Appellees cannot justifiably dispute the ‘IRS’ no longer legally exists.” Also on page 4, “The Secretary [of the Treasury] is prohibited by Title 4, Sec. 72 from exercising his office outside the District of Columbia.” On page 7, “It should be clear by now there is no lawfully established Internal Revenue Service with jurisdiction outside the District of
Columbia or among the several States.” And on page 9, “There is no IRS authorized by law . . ., since the IRS must be structured in a DD format until the statutes and regulations have properly been changed.” We admonish Mr. Barringer that this court will not tolerate such frivolous statements from a licensed attorney in the guise of advocacy. If such conduct persists, Mr. Barringer will be referred to the Tenth Circuit Disciplinary Committee.

Denied.

Entered for the Court,
ELISABETH A. SHUMAKER, Clerk

Some things are just a matter of time.

[fortinbras]

Apparently Barringer, although he should have known better, let Springer write the pleadings and then signed his name to them.

[grixit]

Thus making himself a strawman by default.

[fortinbras]

Is there a date or citation for the Springer decision in the first message??

[Dezcad]

Is there a date or citation for the Springer decision in the first message??

The date of the Order was December 15, 2010 but it is not published.

[Dezcad]

Barringer has been referred to the Tenth Circuit Disciplinary Panel for pursuing frivolous arguments.
You can read Barringer's response to the original OTSC here.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LINDSEY K. SPRINGER,
Individually and as Co-Trustee of the
S.L.C.A. Family Trust,
Defendant-Appellant,
and
REGINA M. CARLSON, as
Co-Trustee of the S.L.C.A. Family
Trust; MARTHA F. MOORE,
Individually and as Trustee of the
W.T. Moore and Martha F. Moore
Revocable Trust dated June 12, 2002;
W.T. SMITH; JANETH S. SMITH,
Defendants.
No. 10-5037
(D.C. No. 4:08-CV-00278-TCK-PJC)
(N.D. Okla.)
ORDER
Before TYMKOVICH and BALDOCK, Circuit Judges, BRORBY, Senior Circuit Judge.

On June 23, 2011, we directed appellant’s counsel, Jerold W. Barringer, to show cause why he should not be referred to the Tenth Circuit Disciplinary Panel for pursuing frivolous arguments on appeal. Mr. Barringer was afforded an opportunity to respond to the show-cause order, and on July 13, 2011, he filed his response. We have now reviewed Mr. Barringer’s response and conclude that his effort to show cause why he should not be referred to our Disciplinary Panel is inadequate.

Mr. Barringer filed multiple pleadings in this court asserting the Internal Revenue Service does not exist or has no authority to collect taxes outside of Washington, D.C. Despite a prior admonishment from this court, Mr. Barringer persisted in advancing frivolous tax-protester rhetoric. According to Mr. Barringer, the Secretary of the Treasury cannot collect taxes outside of Washington, D.C., because the Secretary’s collection authority has not been properly delegated to employees of the Internal Revenue Service. These types of spurious delegation arguments have been consistently rejected as patently frivolous by this court. See, e.g., United States v. Ford, 514 F.3d 1047, 1053 (10th Cir. 2008); Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990). Yet Mr. Barringer’s response to the show-cause order reiterates his
delegation argument and contends it is made in good faith.

Mr. Barringer has been warned against making frivolous statements in the guise of advocacy, United States v. Springer, No. 10-5037, Order of Dec. 15, 2010, at 2 (10th Cir.), but he insists on pursuing this theory. Accordingly, the Clerk is directed to initiate a disciplinary case pursuant to Tenth Circuit Rules, Addendum III, Plan For Attorney Disciplinary Enforcement (“Plan”) § 6.2. See 10th Cir. R. 46.5(D)(3). Mr. Barringer is referred to the court’s assigned disciplinary panel to determine what action, if any, is appropriate. Plan §§ 3-4.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

You can read Barringer's response to the original OTSC here.

[LPC]

Thanks for posting this.

When you're in danger of disciplinary for flinging crap at the court, flinging more of the same crap doesn't seem like the best defense.

But recognizing that would require some sense, and some contact with reality, both of which Barringer lacks.

[wserra]

I wouldn't call this the "verge" of trouble. I'd say Barringer is history in the Tenth Circuit, and very likely many other federal courts, in short order.

My nose bleeds for him.

[Pottapaug1938]

Adopting Barringer's approach to brief-writing is like picking up a grizzly bear cub, out in the wild, and then calling mama grizzly's attention to how cute the two of you look together.

[notorial dissent]

OK, I know that Barringer’s position/delusion is that the districts have to exist and don’t, so that the SOT doesn’t have authority to collect taxes, but what is the actual court opinion on this particular pipe dream, since I know it and the Paperwork Reduction thing have both been ruled frivolous? I know there was a restructuring, and a step in between that he conveniently chooses to ignore.

[Nikki]

Barringer has skated enough times and has avoided massive losses enough times that he has adopted a super-human view of himself.

Just because his inane pleadings haven't been dismissed out of hand (some judges failed to invoke the 'somber reasoning' provision) he has become convinced that there actually IS as pony somewhere in there.

Now that a judge has called him to put his cards on the table, he is going all in with a bust hand.

Rather than admitting he royally f****d up and going for a suspension, he is digging his heels in to his solid foundation of bovine-processed grass and going for the full deal.

He, like so many of his compatriots, is so drunk on the juice that he has left reality long ago behind him.

Unfortunately, he is just another martyr in the making to the corrupt system.

[webhick]

Adopting Barringer's approach to brief-writing is like picking up a grizzly bear cub, out in the wild, and then calling mama grizzly's attention to how cute the two of you look together.

I don't see what the problem is there. Bears love it when you pose with their children. They love it so much that they celebrate their joy and show thanks by mauling you.

[Dezcad]

Barringer filed a lengthy Motion to Reconsider the referral below.

Proving that he really doesn't get it, here's Barringer's statements of issues (as he sees them):

ISSUES PRESENTED
1. Is the referral made to the disciplinary committee for claiming Internal Revenue Districts no longer exist since 2000?

2. Is the referral made to the disciplinary committee by this Court tantamount to a finding that Internal Revenue Districts and District Directors still exist at all relevant times, as this Court in several cases continued to state after October, 2000?

3. Or, is the referral to the disciplinary committee based upon the notion no matter whether the President established Internal Revenue Districts and the Secretary of the Treasury established District Directors Offices and District Directors, employees of the United States, Internal Revenue Service, can take whatever actions they choose, and do whatever they believe they are allowed to do without regard to due process or properly enacted Statutes and Treasury Regulations?

Barringer has been referred to the Tenth Circuit Disciplinary Panel for pursuing frivolous arguments.
You can read Barringer's response to the original OTSC here.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LINDSEY K. SPRINGER,
Individually and as Co-Trustee of the
S.L.C.A. Family Trust,
Defendant-Appellant,
and
REGINA M. CARLSON, as
Co-Trustee of the S.L.C.A. Family
Trust; MARTHA F. MOORE,
Individually and as Trustee of the
W.T. Moore and Martha F. Moore
Revocable Trust dated June 12, 2002;
W.T. SMITH; JANETH S. SMITH,
Defendants.
No. 10-5037
(D.C. No. 4:08-CV-00278-TCK-PJC)
(N.D. Okla.)
ORDER
Before TYMKOVICH and BALDOCK, Circuit Judges, BRORBY, Senior Circuit Judge.

On June 23, 2011, we directed appellant’s counsel, Jerold W. Barringer, to show cause why he should not be referred to the Tenth Circuit Disciplinary Panel for pursuing frivolous arguments on appeal. Mr. Barringer was afforded an opportunity to respond to the show-cause order, and on July 13, 2011, he filed his response. We have now reviewed Mr. Barringer’s response and conclude that his effort to show cause why he should not be referred to our Disciplinary Panel is inadequate.

Mr. Barringer filed multiple pleadings in this court asserting the Internal Revenue Service does not exist or has no authority to collect taxes outside of Washington, D.C. Despite a prior admonishment from this court, Mr. Barringer persisted in advancing frivolous tax-protester rhetoric. According to Mr. Barringer, the Secretary of the Treasury cannot collect taxes outside of Washington, D.C., because the Secretary’s collection authority has not been properly delegated to employees of the Internal Revenue Service. These types of spurious delegation arguments have been consistently rejected as patently frivolous by this court. See, e.g., United States v. Ford, 514 F.3d 1047, 1053 (10th Cir. 2008); Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990). Yet Mr. Barringer’s response to the show-cause order reiterates his
delegation argument and contends it is made in good faith.

Mr. Barringer has been warned against making frivolous statements in the guise of advocacy, United States v. Springer, No. 10-5037, Order of Dec. 15, 2010, at 2 (10th Cir.), but he insists on pursuing this theory. Accordingly, the Clerk is directed to initiate a disciplinary case pursuant to Tenth Circuit Rules, Addendum III, Plan For Attorney Disciplinary Enforcement (“Plan”) § 6.2. See 10th Cir. R. 46.5(D)(3). Mr. Barringer is referred to the court’s assigned disciplinary panel to determine what action, if any, is appropriate. Plan §§ 3-4.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

You can read Barringer's response to the original OTSC here.

[wserra]

Once again, instead of acknowledging that perhaps he went too far in his zeal to defend a client, Barringer claims it's all the Court's fault for not understanding the full subtlety of his brilliant arguments.

Surely this Panel is not advocating the actions of United States employees are above reproach or the law? Surely this Panel is not suggesting that the Internal Revenue Service can do whatever it chooses to do, without regard to the law that governs such an organization?

Oh, well, a fool and his law license are soon parted.

What an asshole.

[Judge Roy Bean]

...Oh, well, a fool and his law license are soon parted.

What an asshole.

But at least he'll be able to claim his license was taken because he dared to challenge "them."

[ASITStands]

Is there an answer to 'notorial dissent's' question?

OK, I know that Barringer’s position/delusion is that the districts have to exist and don’t, so that the SOT doesn’t have authority to collect taxes, but what is the actual court opinion on this particular pipe dream ...

Where is the actual court decision determining the argument frivolous?

There're lots of decisions where the tax denier argued lack of jurisdiction or authority, but none of them address the lack of revenue districts for the administration of tax laws.

Cf. 26 CFR 601.101

The Internal Revenue Service is a bureau of the Department of the Treasury under the immediate direction of the Commissioner of Internal Revenue. The Commissioner has
general superintendence of the assessment and collection of all taxes imposed by any law providing internal revenue. The Internal Revenue Service is the agency by which these functions are performed. Within an internal revenue district the internal revenue laws are administered by a district director of internal revenue.

The government has argued Lonsdale, but Lonsdale does not address the elimination of revenue districts. It proceeds from a different statutory/regulatory structure for the IRS

Where is the appellate decision addressing the lack of revenue districts? I'm still looking.

[Famspear]

While I'm looking for appellate decisions, I would note that there is a recent U.S. Tax Court decision where the taxpayer contended that the Internal Revenue Service was entitled to impose an income tax only on Federal employees and those who reside in, among other places, "IRS Districts". The taxpayer argued that the taxpayer had never resided in such an area, and that the IRS therefore had no jurisdiction to impose an income tax on the taxpayer.

The Tax Court rejected that argument, stating:

Section 6673(a)(1) authorizes the Tax Court to require a taxpayer to pay to the United States a penalty not in excess of $25,000 whenever it appears that proceedings have been instituted or maintained by the taxpayer primarily for delay or that the taxpayer's position in such proceedings is frivolous or groundless. In our order dated July 1, 2008, we warned Mr. Barry that we have frequently imposed the section 6673 penalty on taxpayers who have continued to advance arguments similar to those he has made throughout these proceedings. Despite the fact that petitioners received similar warnings from respondent's Appeals Office and despite the fact that the District Court and the Court of Appeals for the Eleventh Circuit rejected similar arguments advanced by petitioners during their criminal trials, see United States v. Barry, 371 Fed. Appx. 3 (11th Cir. 2010); United States v. Barry, No. 2:08-CR-56-FTM-99SPC (M.D. Fla. June 22, 2009), petitioners continued to advance the same frivolous arguments before this Court. Accordingly, we shall impose a penalty pursuant to section 6673 of $20,000 in the case at docket No. 4754-07L, and $10,000 in each case at docket Nos. 5026-07L and 25882-08L.

--from Barry v. Commissioner, T.C. Memo. 2011-127 (June 7, 2011).

I'll see if I can locate an appellate decision, time permitting.

[Famspear]

More on Mr. and Mrs. Warren Barry's criminal tax case, this from the United States Court of Appeals for the Eleventh Circuit:

Following the trial, Warren filed a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), in which Sheri joined. R3-155, 157. In the motion, Warren alleged, inter alia, that Counts One, Six, Seven, and Eight, as charged in the redacted indictment, should have been dismissed because the government failed to prove venue by a preponderance of the evidence given that, since March 2001, there have been no "internal revenue districts" as described in 26 U.S.C. § 6091(b)(1)(A) due to passage of the IRS Reform and Restructuring Act of 1998. R3-155 at 3-11. Warren attached a document titled "IRS Notice of Proposed Rulemaking (REG-118886) Clarifying Section 6411 Regulations by Cross-Reference to Temporary Regulations (T.D. 9355)," dated 27 August 2007 ("Notice"). Id., exh. 1. The Notice's "Summary" section provides that the IRS was issuing temporary regulations relating to section 6411 of the Internal Revenue Code — dealing with tentative carryback and refund adjustments — and that the regulations, inter alia,

remove all references to IRS district director or service center director, as these positions no longer exist within the IRS. The offices of the district director and service center director were eliminated by the IRS reorganization implemented pursuant to the IRS Reform and Restructuring Act of 1998.

The Court went on later to say:

.....In support of his contention that "internal revenue districts" no longer existed, Warren attached the 8 May 2001 Testimony of David C. Williams, Treasury Inspector General for Tax Administration, during a joint congressional hearing, in which Williams generally testified as to organizational restructuring of the IRS. See R3-180, exh. A. Warren also attached a response to a motion to dismiss that the government filed in Case No. 09-cr-043 from the U.S. District Court for the Northern District of Oklahoma. Id., exh. B. In the document, the government submitted that "[t]he IRS Restructuring and Reform Act of 1998 abolished internal revenue districts as of October 1, 2000....."

The Court further stated:

They [Mr. and Mrs. Barry] submit that the government does not dispute that, since October 2000, there were "no District Directors" in the Middle District of Florida, and that the Middle District of Florida was not within any service center or internal revenue district for venue purposes. Because they were required, pursuant to 26 U.S.C. § 6091(b)(1)(A)(i), (ii), to file their tax returns in the "internal revenue district," or the "service center serving the internal revenue district," in which they resided or had a principal place of business, the Barrys argue that the government failed to prove that venue was proper in the Middle District of Florida.

The taxpayers also argued that:

......the court should dismiss the indictment for improper venue and lack of jurisdiction, submitting that, "ecause there were no internal revenue districts and no district directors, at any time during the alleged prohibited conduct, the acts alleged could never have been completed within any place within the jurisdiction of this United States District Court....

The Court stated that the taxpayers'.....

......contention that the district court had no subject-matter jurisdiction over the offense is frivolous.

--(bolding added).

The convictions were affirmed by the Court of Appeals. See United States v. Barry, No. 09-13457, United States Court of Appeals for the Eleventh Circuit (March 24, 2010).

[Cpt Banjo]

There're lots of decisions where the tax denier argued lack of jurisdiction or authority, but none of them address the lack of revenue districts for the administration of tax laws.

There are at least three, all of which rejected the taxpayers' arguments that the lack of districts or district directors meant that assessments, liens, or levies were invalid:

U.S. v. Booth, 106 AFTR 2d 2010-6409 (E.D. CA 2010)
U.S. v. Zdunn, 107 AFTR 2d 2011-891 (D. OR 2011)
Grunstead v. Commissionser of Internal Revenue, 136 T.C. No. 21 (2011)

All three cases relied on Section 1001(b) of the Internal Revenue Service Restructuring and Reform Act of 1998, which provides:

All orders, determinations, rules, regulations, permits, agreements, grants, contracts, certificates, licenses, registrations, privileges, and other administrative actions.-(A) which have been issued, made, granted, or allowed to become effective by the President, any Federal agency or official thereof, or by a court of competent jurisdiction, in the performance of any function transferred or affected by the reorganization of the Internal Revenue Service or any other administrative unit of the Department of the Treasury under this section; and (B) which are in effect at the time [pg. 2011-893] this section takes effect, or were final before the effective date of this section and are to become effective on or after the effective date of this section, shall continue in effect according to their terms until modified, terminated, superseded, set aside, or revoked in accordance with law by the President, the Secretary of the Treasury, the Commissioner of Internal Revenue, or other authorized official, a court of competent jurisdiction, or by operation of law.

As the court explained in Grunstead:

Petitioner argued to respondent's Appeals Office and in his petition that respondent cannot assess frivolous return penalties against him, even if section 6702 would otherwise apply, because the assessments for the penalties are invalid. We disagree.

An assessment is made by recording the liability of a taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Sec. 6203. Assessments are made by assessment officers who are appointed by the district director and the director of the regional service center. Sec. 301.6203-1, Proced. & Admin. Regs. Petitioner argues that there is no district director, therefore no assessment officers have been properly appointed and so there can be no valid assessment of frivolous return penalties against him. Petitioner is correct in arguing that there are no longer any district directors. He errs, however, in concluding that there were no valid assessments because of the absence of district directors.

The IRS has been reorganized several times in recent history. The district director position and responsibilities were assigned to others after the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA), Pub. L. 105-206, 112 Stat. 685, required the Commissioner to eliminate or substantially modify the IRS' national, regional and district structure. Id. sec. 1001, 112 Stat. 689. To ensure continuity of operations, the RRA specifically included a savings provision. Id. sec. 1001(b). The savings provision applies to keep in effect regulations that refer to officers whose positions no longer exist. Id. It also provides that nothing in the reorganization plan would be considered to impair any right or remedy to recover any penalty claimed to have been collected without authority. Id.

Furthermore, IRS Deleg. Order 1-23 (formerly IRS Deleg. Order 193, Rev. 6), Internal Revenue Manual pt. 1.2.40.22 (Nov. 8, 2000) allows directors, submission processing field, compliance services field and accounts management field to appoint assessment officers. This order further implemented Congress' intent that the IRS' normal duties, including that of assessment, not be obstructed by the reorganization.5 In short, petitioner's frivolous return penalties were properly assessed and his argument, albeit novel, is without merit.

n5 See H. Conf. Rept. 105-599 at 194 (1998), 1998-3 C.B. 747, 948 ("The IRS Commissioner is directed to restructure the IRS by eliminating or substantially modifying the present-law three-tier geographic structure and replacing it with an organizational structure that features operating units serving particular groups of taxpayers with similar needs. * * * The legality of IRS actions will not be affected pending further appropriate statutory changes relating to such a reorganization (e.g., eliminating statutory references to obsolete positions).").

[Famspear]

Although the cases cited by me and Cpt Banjo are indeed rulings by Courts of Appeals that the "lack of internal revenue districts" argument is frivolous, I would reiterate that which is probably obvious: We don't need appellate decisions to establish, as a matter of law, that a particular position is frivolous. Trial court rulings (e.g., U.S. Tax Court, U.S. District Court, etc.) also establish the frivolity of a given position.