Marc Stevens and "Insufficient Evidence"

[Famspear]

.....The references from the Powell case refer to a "taxpayer" facing a heavy burden of proof if they wish to oppose an IRS application for enforcement of a summons, while the IRS are only required to produce an affidavit from an IRS agent. Marc Stevens would be objecting to the IRS claim that the defendant is a "taxpayer", but in the Powell case this has already been established. Perhaps is seems odd to question that, but if we imagine the IRS brought a case against me (I've never worked in the US) the case should never reach a point where I could be classed as a "taxpayer".

No, under the U.S. Internal Revenue Code, there would be no requirement that you be classed as a "taxpayer" in an action to enforce a summons. An IRS summons can be issued to anyone -- and validly enforced with respect to anyone -- regardless of whether that person is a "taxpayer" or not, or whether that person happens to be "the taxpayer" in that particular case.

Further, the term "taxpayer" as used in the Internal Revenue Code essentially means a person who is "subject to" a U.S. internal revenue tax. Everyone on the Planet Earth is potentially "subject to" U.S. internal revenue taxes -- even a monk living on top of a mountain in Tibet who has never been an U.S. citizen or U.S. resident, and who has never visited the U.S. It's a peculiar feature of U.S. law.

If the U.S. government claims that someone owes a U.S. internal revenue tax, that person will not get far in a U.S. court by arguing that he is not "the taxpayer" with respect to that court proceeding, unless he is claiming that the case is one of mistaken identity (such as "My name is John Smith, but I'm not the same John Smith that the government is talking about; it's a different John Smith").

[Famspear]

...... Perhaps is seems odd to question that, but if we imagine the IRS brought a case against me (I've never worked in the US) the case should never reach a point where I could be classed as a "taxpayer".

To elaborate on this: Unless you're claiming something like mistaken identity, you're already "classed" as THE taxpayer in the case if the U.S. government claims that you owe the U.S. internal revenue tax that is the subject of that case. It's not a matter of your "disproving," with "evidence", that you are not "classed" as a "taxpayer," and it's not a matter of the government "proving" with "evidence" that you are "classed" as a "taxpayer."

[wserra]

I believe the motion is in effect a statement that no evidence has been provided to support the claim that particular set of legislation applies to the defendant.

Yes, that is one version of Stevens' nonsense. It has lost every single time - ask him to show just one case in which he or an acolyte was involved where a judge ruled that the prosecution failed to show "evidence" that the law applies to a defendant. In a criminal (or traffic) context, the only showing required is that the charged acts occurred within the court's territorial jurisdiction, something of which a court can take judicial notice. E.g., Government of Canal Zone v. Burjan, 596 F.2d 690 (5th Cir. 1979).

... For example, take Mark Edwards. The whole sad story is laid out here, ...

I went through the documents and typed out some of the text in response, but the site asked me to login again and I somehow lost it all. Anyway, it's a very old case (2005) and of four motions filed only the first was even close in meaning to the spiel on his radio show, although the wording isn't particularly clear.

1. 2005 is not a "very old case". Marbury v. Madison was decided 200 years earlier than that - 1803, to be exact - and has just as much meaning today as it did then.

2. If what you mean is that, like the positions of all sov gurus, Stevens' positions morph as the losses pile up - yes, they do. Perhaps Stevens has rearranged the deck chairs on the Titanic between 2005 and today. But the boat will wind up in the same place.

Assuming the essence of this earlier version of the Marc Stevens is in effect the same as today's motion, the Judge's response suggests he didn't quite understand, and the citations from the Powell IRS case didn't address the issue.

Something else you hear from sov gurus - "the court didn't understand". Or didn't care. Or needs to cover up the truth. Anything but "I lost because I was wrong".

Marc Stevens would be objecting to the IRS claim that the defendant is a "taxpayer", but in the Powell case this has already been established. Perhaps is seems odd to question that, but if we imagine the IRS brought a case against me (I've never worked in the US) the case should never reach a point where I could be classed as a "taxpayer".

26 USC 7701(a)(14) defines "taxpayer" as "any person subject to any internal revenue tax." I believe you to be from the UK. Assuming that you have no income from US sources, you are not "subject to any internal revenue tax", and therefore not a taxpayer. Stevens is from Arizona, Edwards from Wyoming. They are "taxpayers" by definition. This is another 100% loss argument one occasionally sees from sov types.

I got the impression the judges involved had no real interest in the case and merely skimmed through the paperwork having seen many similar motions in the past. Need something current that actually addresses the motion he's filing, with reasoning not just one man's conclusion that he can simply dismiss.

Judges - US judges, at least - "simply dismiss" frivolous arguments all the time. As one court put it, "We perceive no need to refute these arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit." Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984). No court has ever ruled that Stevens' stuff has any colorable merit, and multiple courts have specifically ruled (in addition to Edwards) that it does not.

It's interesting that you uncritically accept it.

[GaryBale]

.....The references from the Powell case refer to a "taxpayer" facing a heavy burden of proof if they wish to oppose an IRS application for enforcement of a summons, while the IRS are only required to produce an affidavit from an IRS agent. Marc Stevens would be objecting to the IRS claim that the defendant is a "taxpayer", but in the Powell case this has already been established. Perhaps is seems odd to question that, but if we imagine the IRS brought a case against me (I've never worked in the US) the case should never reach a point where I could be classed as a "taxpayer".

No, under the U.S. Internal Revenue Code, there would be no requirement that you be classed as a "taxpayer" in an action to enforce a summons. An IRS summons can be issued to anyone -- and validly enforced with respect to anyone -- regardless of whether that person is a "taxpayer" or not, or whether that person happens to be "the taxpayer" in that particular case.

Further, the term "taxpayer" as used in the Internal Revenue Code essentially means a person who is "subject to" a U.S. internal revenue tax. Everyone on the Planet Earth is potentially "subject to" U.S. internal revenue taxes -- even a monk living on top of a mountain in Tibet who has never been an U.S. citizen or U.S. resident, and who has never visited the U.S. It's a peculiar feature of U.S. law.

If the U.S. government claims that someone owes a U.S. internal revenue tax, that person will not get far in a U.S. court by arguing that he is not "the taxpayer" with respect to that court proceeding, unless he is claiming that the case is one of mistaken identity (such as "My name is John Smith, but I'm not the same John Smith that the government is talking about; it's a different John Smith").

We're not talking about mistaken identity.

What should be filed and on what basis should a case fail in those circumstances? The IRS has no authority to issue a summons for my records as I'm not a US taxpayer, and shouldn't be expected to file any evidence in defence for such a case to fail.

[Famspear]

......What should be filed and on what basis should a case fail in those circumstances? The IRS has no authority to issue a summons for my records as I'm not a US taxpayer, and shouldn't be expected to file any evidence in defence for such a case to fail.

That is incorrect. You don't need to be a "US taxpayer" for the Internal Revenue Service to have the authority to issue a summons for your records. You don't need to be subject to the U.S. internal revenue laws for a valid, legally enforceable IRS summons to be issued to you.

If the IRS issues a summons under Internal Revenue Code section 7602, you can fight the summons in court. If one or more of the four "Powell" elements is not present, then you would be able to defeat the summons.

Of course, if you're not physically present in the geographical area of the United States, the government might have a hard time enforcing the summons.

EDIT: By way of background: The IRS does not need to meet any standard of probable cause to obtain enforcement of a summons. The person required to obey the summons does not have to be a U.S. taxpayer.

Here are the four Powell requirements.

1. The IRS investigation must be conducted pursuant to a legitimate purpose;

2. the inquiry under the summons must be such that the inquiry "may be relevant" to that legitimate purpose;

3. generally, the information sought by the IRS is not already within the IRS's possession; and

4. the administrative steps required by the Internal Revenue Code have been followed.

[Arthur Rubin]

Much as I hate to admit it, Gary may have a point.

If neither he nor his records are located in the United States, then the IRS or a US Court can issue a summons for his records, but the law of the country where he or his records are located may not require complying with the summons.

(By "not located in the United States", I mean located in a real country other than the United States. The Republic of Texas, the Commonwealth of Massachusetts, and the Republic of Molossia do not qualify.)

[Famspear]

Much as I hate to admit it, Gary may have a point.

If neither he nor his records are located in the United States, then the IRS or a US Court can issue a summons for his records, but the law of the country where he or his records are located may not require complying with the summons.

Well, Gary might "have" that particular point, if he chooses to make it. As far as I can tell, he has not. I'm the one who raised that point, by saying that if you're "not physically present in the geographical area of the United States, the government might have a hard time enforcing the summons".



EDIT: Gary's thinking is a bit different. His idea is that because he is not a U.S. taxpayer, the IRS summons would not be valid against him. That is incorrect. There is no legal requirement that the person being summoned be a "taxpayer" at all (U.S. taxpayer, or U.K. taxpayer, or any other kind of taxpayer).

Another digression: Similarly, there is no legal requirement that a person even be a "taxpayer" (U.S. or otherwise) to be guilty of tax evasion under the U.S. Internal Revenue Code. ANY person who willfully attempts -- in any manner -- to evade the assessment or payment of ANY tax imposed under the Internal Revenue Code can be guilty of tax evasion under section 7201. For example, if a person who is not a "taxpayer" willfully makes an affirmative attempt to evade ANYONE's U.S. federal income tax liability (for example, by assisting someone who IS a "taxpayer" to evade the assessment or payment of the taxpayer's tax), that person is guilty of tax evasion. Further, if that person is kidnapped and brought to the United States illegally, and is then arrested and indicted for the tax evasion offense, the fact that the person was kidnapped and brought here illegally will not defeat the criminal prosecution for tax evasion.

[wserra]

Much as I hate to admit it, Gary may have a point.

If neither he nor his records are located in the United States, then the IRS or a US Court can issue a summons for his records, but the law of the country where he or his records are located may not require complying with the summons.

Foreign law almost certainly does not require complying with an IRS summons, or even with an order from a USDC. Problem is, we were talking about one groyse chochem in Wyoming, and another in Arizona.

[AndyK]

Interesting statements: "The IRS brings a case against you..."

The IRS NEVER brings a case against anyone. All the cases are brought by the US DoJ. Basically, the only time the IRS appears in court (except as witness in case brought by DoJ) is in Tax Court in response to a taxpayer's petition. However, I will leave any amplification and correction to OperaBuff.

[GaryBale]

......What should be filed and on what basis should a case fail in those circumstances? The IRS has no authority to issue a summons for my records as I'm not a US taxpayer, and shouldn't be expected to file any evidence in defence for such a case to fail.

That is incorrect. You don't need to be a "US taxpayer" for the Internal Revenue Service to have the authority to issue a summons for your records. You don't need to be subject to the U.S. internal revenue laws for a valid, legally enforceable IRS summons to be issued to you.

If the IRS issues a summons under Internal Revenue Code section 7602, you can fight the summons in court. If one or more of the four "Powell" elements is not present, then you would be able to defeat the summons.

Of course, if you're not physically present in the geographical area of the United States, the government might have a hard time enforcing the summons.

EDIT: By way of background: The IRS does not need to meet any standard of probable cause to obtain enforcement of a summons. The person required to obey the summons does not have to be a U.S. taxpayer.

The Powell case used the term "taxpayer" rather than "defendant", and was quoted in the appeal (by the Judge, not Mr Edwards), and in that case the IRS was attempting to inspect documents they have previously inspected.

I'm not subject to IRS code, they have no authority to issue summons against me, or view my records, so it should never reach a point where I have to present evidence. This would also be true if I assisted somebody to evade US taxes. Although such an event is extremely unlikely, the fact some people think it's possible is concerning because I may want/need to travel to the US at some point in the future.

EDIT: I haven't assisted anybody evading US taxes. I've committed no crime and couldn't owe any US taxes either, so this is purely hypothetical. There may have been some extradition cases involving the US and UK, where the alleged acts are not crimes in the UK (can't find them, so not sure if they were turned down).

[wserra]

Does all of that have anything to do with Stevens' nonsense about needing "evidence" that US law applies to people in the US?

[Famspear]

The Powell case used the term "taxpayer" rather than "defendant", and was quoted in the appeal (by the Judge, not Mr Edwards), and in that case the IRS was attempting to inspect documents they have previously inspected.

You're still not getting it. The term "taxpayer" as used in that case was a reference to "William Penn Laundry." The person to whom the summons was issued was not William Penn Laundry. The person to whom the summons was issued was Powell. Nowhere in that case did the Court say or rule that the person to whom the summons was issued had to be the taxpayer, or even "a taxpayer."

I'm not subject to IRS code, they have no authority to issue summons against me, or view my records, so it should never reach a point where I have to present evidence.

Yes, you are "subject to" the U.S. Internal Revenue Code, and the IRS does have the legal authority to issue a summons to you to review your records. Such a summons could be ruled valid in a U.S. court. There is no legal requirement that you be a "taxpayer." Again, if you're not physically present in the United States, the law might be difficult to enforce, but that is a separate issue.

And, if you assisted somebody to evade U.S. taxes, then yes, you could be indicted, tried, found guilty, sentenced, and imprisoned for that. The fact that you're not a U.S. citizen or resident or taxpayer wouldn't make any difference. Again, we're talking hypothetical.

EDIT: In the Powell case, it was apparently Powell himself (not merely the William Penn Laundry) who was contesting the IRS summons. Powell was president of the William Penn Laundry, and it was presumably the records of William Penn Laundry that the IRS had summoned. Powell of course would have probably been the custodian of those records. The fact that those records had been previously examined by the IRS does not necessarily mean that, at the time of the issuance of the summons, those records were in the possession of the IRS.

And, as wserra has noted, none of this digression of mine has much to do with the facts of the Marc Stevens matter.

[GaryBale]

I'm not subject to IRS code, they have no authority to issue summons against me, or view my records, so it should never reach a point where I have to present evidence.

Yes, you are "subject to" the U.S. Internal Revenue Code, and the IRS does have the legal authority to issue a summons to you to review your records. Such a summons could be ruled valid in a U.S. court. There is no legal requirement that you be a "taxpayer." Again, if you're not physically present in the United States, the law might be difficult to enforce, but that is a separate issue.

And, if you assisted somebody to evade U.S. taxes, then yes, you could be indicted, tried, found guilty, sentenced, and imprisoned for that. The fact that you're not a U.S. citizen or resident or taxpayer wouldn't make any difference. Again, we're talking hypothetical.

This is reminiscent of the fatwa issued against Salman Rushdie for the Satanic Versus. The IRS cannot demand I comply with it's tax code anymore than an Ayatollah in Iran can control what authors in England write about Islam.

Let's say they took this to court in the UK - I believe what I would file to thwart an IRS claim against me would be very similar to what Marc Stevens is filing with his motion to dismiss for lack of evidence. Something like this should never reach a point where I've got a burden of proof. They should be required to prove that I'm subject to the IRS code, and that should be true Stateside too.

[Famspear]

I'm not subject to IRS code, they have no authority to issue summons against me, or view my records, so it should never reach a point where I have to present evidence.

Yes, you are "subject to" the U.S. Internal Revenue Code, and the IRS does have the legal authority to issue a summons to you to review your records. Such a summons could be ruled valid in a U.S. court. There is no legal requirement that you be a "taxpayer." Again, if you're not physically present in the United States, the law might be difficult to enforce, but that is a separate issue.

And, if you assisted somebody to evade U.S. taxes, then yes, you could be indicted, tried, found guilty, sentenced, and imprisoned for that. The fact that you're not a U.S. citizen or resident or taxpayer wouldn't make any difference. Again, we're talking hypothetical.

This is reminiscent of the fatwa issued against Salman Rushdie for the Satanic Versus. The IRS cannot demand I comply with it's tax code anymore than an Ayatollah in Iran can control what authors in England write about Islam.

Let's say they took this to court in the UK - I believe what I would file to thwart an IRS claim against me would be very similar to what Marc Stevens is filing with his motion to dismiss for lack of evidence. Something like this should never reach a point where I've got a burden of proof. They should be required to prove that I'm subject to the IRS code, and that should be true Stateside too.

No, it's not reminiscent of the fatwa issued against Salman Rushdie. Not even close.

Yes, if you're in England, it might be difficult or even impossible for the U.S. Internal Revenue Service to obtain compliance if you refuse to co-operate. If, in a British court, you tried to do something similar to what Marc Stevens does, you might lose in that court. But, if you used a lawyer in the British court, you might win (I don't know). Neither you nor Marc Stevens knows how to do this without a lawyer.

You're still hung up on this idea that you might not be "subject to" the U.S. Internal Revenue Code, and that you could somehow "prove" with "evidence" that you're not subject to the Code.

On a slightly different note: The process of enforcing an IRS summons issued to a third party (that is, to someone who is not even the taxpayer) is fairly common, and perfectly legal – even where the records being sought are the sole property of the third party. Further, the taxpayer whose tax situation is being investigated in that case generally has no right to intervene to stop the enforcement of the summons against the third party. See the U.S. Supreme Court decision in Donaldson v. United States, 400 U.S. 517 (1971).

[Judge Roy Bean]

This is reminiscent of the fatwa issued against Salman Rushdie for the Satanic Versus. The IRS cannot demand I comply with it's tax code anymore than an Ayatollah in Iran can control what authors in England write about Islam. ...

You're confused. There are established cooperative arrangements among countries that deal with taxation; there are no established treaties allowing for the assassination of writers.

[norrha]

Neither you nor Marc Stevens knows how to do this without a lawyer.

I do!

question: has a US court ever granted, rather than of its own accord, a Marc-Stevens-acolyte's motion to dismiss for lack of evidence that the laws applied?

[wserra]

Let's say they took this to court in the UK - I believe what I would file to thwart an IRS claim against me would be very similar to what Marc Stevens is filing with his motion to dismiss for lack of evidence.

Have you read the US-UK convention on avoiding double taxation and tax information exchange? If not, before you continue you might read Title 27 ¶ 4:

If specifically requested by the competent authority of a Contracting State, the competent authority of the other Contracting State shall provide information under this Article in the form of authenticated copies of unedited original documents (including books, papers, statements, records, accounts, and writings), to the same extent such documents can be obtained under the laws and administrative practices of that other State with respect to its own taxes.

So a British court will direct you to hand over records to the IRS to the same extent as to British taxing authorities. If you do a Stevens, you'll then ask the British court for "evidence" that British law applies to you.

Let us know how that goes.

[wserra]

question: has a US court ever granted, rather than of its own accord, a Marc-Stevens-acolyte's motion to dismiss for lack of evidence that the laws applied?

Only according to Stevens, who has never produced a single order so ordering. The usual Stevens two-step: make a nonsense motion; the cop doesn't show; Stevens crows about the ensuing dismissal. Sorta like King Canute: yeah, the sea rolls back, but it strangely only works when the tide is going out.

[GaryBale]

Yes, you are "subject to" the U.S. Internal Revenue Code, and the IRS does have the legal authority to issue a summons to you to review your records. Such a summons could be ruled valid in a U.S. court. There is no legal requirement that you be a "taxpayer." Again, if you're not physically present in the United States, the law might be difficult to enforce, but that is a separate issue.

And, if you assisted somebody to evade U.S. taxes, then yes, you could be indicted, tried, found guilty, sentenced, and imprisoned for that. The fact that you're not a U.S. citizen or resident or taxpayer wouldn't make any difference. Again, we're talking hypothetical.

This is reminiscent of the fatwa issued against Salman Rushdie for the Satanic Versus. The IRS cannot demand I comply with it's tax code anymore than an Ayatollah in Iran can control what authors in England write about Islam.

Let's say they took this to court in the UK - I believe what I would file to thwart an IRS claim against me would be very similar to what Marc Stevens is filing with his motion to dismiss for lack of evidence. Something like this should never reach a point where I've got a burden of proof. They should be required to prove that I'm subject to the IRS code, and that should be true Stateside too.

No, it's not reminiscent of the fatwa issued against Salman Rushdie. Not even close.

Yes, if you're in England, it might be difficult or even impossible for the U.S. Internal Revenue Service to obtain compliance if you refuse to co-operate. If, in a British court, you tried to do something similar to what Marc Stevens does, you might lose in that court. But, if you used a lawyer in the British court, you might win (I don't know). Neither you nor Marc Stevens knows how to do this without a lawyer.

You're still hung up on this idea that you might not be "subject to" the U.S. Internal Revenue Code, and that you could somehow "prove" with "evidence" that you're not subject to the Code.

It would be foreign entity claiming I've broken their code, and something that would not be a crime here. It's not the punishment involved, but the belief they can impose their code on people outside of their jurisdiction that's the problem.

I could just not cooperate, but that's not the point.

The motion to dismiss, as I understand it, would be a request to dismiss because the claimant hasn't produced evidence that I am subject to their IRS code. I shouldn't have to prove anything myself. Unless they can produce such evidence, or evidence isn't necessary, the motion should be granted.

[GaryBale]

Have you read the US-UK convention on avoiding double taxation and tax information exchange? If not, before you continue you might read Title 27 ¶ 4:

I seriously doubt that would grant the IRS the ability to start issuing summons against people in the UK directly. However, this is hypothetical, we could use some fictional state code that imposes $10000 fines for people who drive blue cars if you prefer.