Ernest is lost - at losthorizons

[Famspear]

Minor keyboard alert:

From a poster named "ernest" at losthorizons.com, in a new thread entitled "I've been SERVED! To appear in Federal court for SUMMONS!!!":

I have finally been served by the relentless IRSS agent to appear in Federal Court June 26!
This is regarding my REFUSAL to produce BOOKS and PAPERS!

I gave this agent both my wife's and my own individual amended returns- as well as- our joint returns that go back 10 years!
My wife received a letter this week though- saying that for 2007 they AGREED with her return that she had NO ADJUSTED GROSS INCOME!
NO TAXABLE INCOME
and should receive a REFUND for over $2,000!
That is just for her SS though!

Anyway- I know that Pete and Bob Schulz failed to convince the court that they should not have to produce papers and books- at least as far as I know.
I have asked Pete what had happened- but he did not respond to that question!

So, I have NO MONEY for an attorney- and do not know SQUAT about legal proceedings- does anyone have any advice- besides 'cave-in'?
Thanks!

(bolding added)

http://www.losthorizons.com/phpBB/viewtopic.php?t=602

[Famspear]

user "mutter" is trying to help ernest:

Post the summons please.

jurisdictionary is great.
also watch richard cornforth

If I can just butt in to help ernest, I would say that chanting the lyrics to old Doobie Brothers hits backwards, in Sanskrit, while standing on your head, works even better than jurisdictionary and richard cornforth.

Good luck, ernest.

[ASITStands]

I found it interesting that 'Ernest' alleged both Pete and Bob had no success, and all he's got from anyone [including himself] is the same 'advice' used by Pete and Bob.

The experience in United States v. Hubbell comes to mind.

Of course, that was criminal prosecution, but somewhere on Quatloos I remember a case posted by 'LPC' about Fifth Amendment use in civil matters. Baxter v. Palmigiano

It would seem to me if 'Ernest' truly has something to hide [potential criminal charges], he should attend the summons, properly make his Fifth Amendment claims, and when the judge orders him to provide the information, claim immunity under the Amendment.

Or, is that not what happened in Hubbell?

None of which means I don't agree with 'Famspear' about filing proper returns.

[Famspear]

Yeah, the Act of Production Doctrine. Here's an excerpt from the Wikipedia article on Hubbell:

This case involved the second prosecution of Webster Hubbell by the Independent Counsel. The prosecution arose from the Independent Counsel's attempt to determine whether Hubbell had violated a promise (part of a plea agreement) to cooperate in the Whitewater investigation. In October 1996, while Hubbell was in jail as a result of the conviction on the guilty plea in the Whitewater case, the Independent Counsel served him with a subpoena duces tecum calling for the production of eleven categories of documents before a grand jury.

In November of 1996, Hubbell appeared before the grand jury and invoked his Fifth Amendment privilege against self-incrimination. In response to questioning by the prosecutor, Hubbell initially refused "to state whether there are documents within my possession, custody, or control responsive to the Subpoena." The prosecutor then produced an order, which had previously been obtained from the District Court pursuant to 18 USC 6003(a), directing Hubbell to respond to the subpoena and granting him immunity "to the extent allowed by law."

Hubbell then produced 13,120 pages of documents and records. He also responded to a series of questions that established that the produced documents were all of the documents in his custody or control that were responsive to the commands in the subpoena (with the exception of a few documents he claimed were shielded by the attorney-client and attorney work-product privileges).

The contents of the documents produced by Hubbell provided the Independent Counsel with the information that led to the second prosecution.

[ . . . ]

Before the U.S. Supreme Court, the prosecutor argued that because the government's possession of the documents was the fruit only of the simple physical act of Hubbell's production of those documents, Hubbell's immunity should not prevent the prosecutor from making derivative use of the documents, even though Hubbell's production of those documents was the result of Hubbell's compliance with the court order granting him immunity.

The United States Supreme Court rejected the prosecutor's argument. The Court stated:

-----"It was unquestionably necessary for respondent [Webster Hubbell] to make extensive use of "the contents of his own mind" in identifying the hundreds of documents responsive to the requests in the subpoena. .... The Government's anemic view of respondent's act of production as a mere physical act that is principally non-testimonial in character and can be entirely divorced from its "implicit" testimonial aspect so as to constitute a "legitimate, wholly independent source" ... for the documents produced simply fails to account for these realities."

The Supreme Court also stated:

-----"The question is not whether the response to the subpoena may be introduced into evidence at his criminal trial. That would surely be a prohibited "use" of the immunized act of production.... But the fact that the Government intends no such use of the act of production leaves open the separate question whether it has already made "derivative use" of the testimonial aspect of that act in obtaining the indictment against respondent and in preparing its case for trial. It clearly has."

-----"It is apparent from the text of the subpoena itself that the prosecutor needed respondent's assistance both to identify potential sources of information and to produce those sources.... Given the breadth of the description of the 11 categories of documents called for by the subpoena, the collection and production [by Webster Hubbell] of the materials demanded was tantamount to answering a series of interrogatories asking a witness [in this case, Webster Hubbell] to disclose the existence and location of particular documents fitting certain broad descriptions. The assembly of literally hundreds of pages of material in response to a request for "any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to" an individual or members of his family during a 3-year period ... is the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition. Entirely apart from the contents of the 13,120 pages of materials that respondent produced in this case, it is undeniable that providing a catalog of existing documents fitting within any of the 11 broadly worded subpoena categories could provide a prosecutor with a "lead to incriminating evidence," or "a link in the chain of evidence needed to prosecute." ..."

-----"It is abundantly clear that the testimonial aspect of respondent's act of producing subpoenaed documents was the first step in a chain of evidence that led to this prosecution. The documents did not magically appear in the prosecutor's office like "manna from heaven." They arrived there only after respondent [Hubbell] asserted his constitutional privilege, received a grant of immunity, and--under the compulsion of the District Court's order--took the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena. It was only through respondent's truthful reply to the subpoena that the Government received the incriminating documents of which it made "substantial use ... in the investigation that led to the indictment." ...."

The Court stated:

-----"[ . . . ] the constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence. That constitutional privilege has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources…."

The Court also stated:

-----"The Government cannot cure this deficiency through the overbroad argument that a businessman such as respondent will always possess general business and tax records that fall within the broad categories described in this subpoena. …[R]espondent's act of production had a testimonial aspect, at least with respect to the existence and location of the documents sought by the Government's subpoena…."

The Supreme Court upheld the lower courts' decisions throwing out the charges against Hubbell.

[Famspear]

The way I remember Hubbell and other "act of production" cases is: The mere fact that the documents contain incriminating information does not allow the individual to use the Fifth Amendment privilege.

To use the privilege, the situation must be that the very act of producing the documents has a testimonial aspect with respect to either (1) existence, (2) authenticity, or (3) custody, of the documents. I take this to mean that the privilege can be successfully asserted where the very act of producing the documents would itself give the government information it did not already have about existence, authenticity, or custody (or, information the government is not already getting, or is going to get, from another source).

This is not my area of expertise, though.

[ASITStands]

I may be wrong, but I agree with [what I perceive to be] your analysis.

The mere production of documents is not enough to trigger the testimonial aspect of making the production. It has to go to mens rea and the testimony of the documents.

In other words, what does each document contribute to the overall understanding or misunderstanding ["good faith" or not] of the one making the testimony.

It might be a layman's way of expressing it. It's not my area of expertise either.

Where's all those high-priced attorneys when you need them?

[wserra]

The Second Circuit's formulation of the act of production privilege (something that exists relatively infrequently) is as follows:

an individual may claim an act of production privilege to decline to produce documents, the contents of which are not privileged, where the act of production is, itself, (1) compelled, (2) testimonial, and (3) incriminating

In re Three Grand Jury Subpoenas Duces Tecum Dated January 29, 1999, 191 F.3d 173 (2d Cir. 1999). Each of those three factors carries a body of law with it. The key point is that just the fact that the target produces the documents is itself incriminating.

It seems difficult to believe that an IRS subpoena for relevant personal documents could invoke an act of production privilege.

[Famspear]

More hilarity from "ernest" at losthorizons, later in the same thread:

I did read (and printed out) many of Pete's articles.
I also believe with his understanding as to who is actual;ly [sic] liable to turn over 'books and records'.

I actually lifted many of Pet's [sic] thoughts andpoints on law to put in a letter that I gave to the IRSS agent months ago!
They don't care!!!

I even talked to the U.S Attorney a couple of times about what was going on- covering this issue, as well as many fundamental issues of law etc.
She doesn't get it either!

This guy first wanted my 03-06 returns- which I eventually gave him-
Then he gave me the first time, mailed to me the second time an IRSS SUMMONS-

The last time we met, he didn't give me a SUMMONS he just gave me a form to state our next in person appointment, and that he wanted me to fill out the FINANCIAL DISCLOSURE FORM- that form where you tell them how much money you make and much your bills are etc.
This form is what you fill out when you enter into an agreement- the IRSS uses it to determine your ability to pay and how much-

I said to this, 'Hey, I don't owe a tax! You have my tax forms that attest to that under penalty of perjury- so no, I am not going to give you the papers etc, not am I going to fill out that form!

So, that is what this is all about!

What a waste of time and resources!
We will have a judge, a US ATTY and a revenue agent, all in court to maybe secure two paycheck stubs totaling about $1100 and I month bank statement with NO ACTIVITY!

I know that BOB SCHULZ tried to QUASH a SUMMONS and the Judge asked Bob why he wanted to that, it wasn't necessary, that the SUMMONS wasn't worth the paper it was written on!

The judge ruled IN FAVOR for BOB!

The IRSS wasn't thrilled and tried to get the judge to change his mind- I don't think it worked.
So I was planning on bringing that information to court as well!


I will try to post the SUMMONS later

Thanks again to all of you!

--bolding added.

http://www.losthorizons.com/phpBB/viewt ... =4812#4812

I wonder if anyone over at losthorizons will jump in and set "ernest" straight about how it ended for Bob Schulz with regard to Bob's fight against IRS summonses.

[Dr. Caligari]

It seems difficult to believe that an IRS subpoena for relevant personal documents could invoke an act of production privilege.

Au contraire. I have invoked the privilege in response to IRS summonses in several cases.
If the target of the summons has unreported income, and the documents which would demonstrate that fact are not ones the IRS already knows of, production of those documents in response to an order compelling compliance with an IRS summons would indeed be "(1) compelled, (2) testimonial, and (3) incriminating."

[grixit]

Ernest: Scared Stupid

[ASITStands]

It seems difficult to believe that an IRS subpoena for relevant personal documents could invoke an act of production privilege.

Au contraire. I have invoked the privilege in response to IRS summonses in several cases.
If the target of the summons has unreported income, and the documents which would demonstrate that fact are not ones the IRS already knows of, production of those documents in response to an order compelling compliance with an IRS summons would indeed be "(1) compelled, (2) testimonial, and (3) incriminating."

The point in my original post.

It seems to me in their haste to make a tax protester argument many faced with a summons or subsequent order to show cause fail to understand the basic right to reserve silence.

Or, am I reading you incorrectly?

In the case of a non-filer or taxpayer with unreported income [as you suggest], it's obvious one purpose of a summons would be to make a determination of liability. It's also obvious that in connection with a frivolous argument, it could also lead to CI.

On that basis, the target should understand the right to reserve silence.

I've seen it in cases where a taxpayer has used trusts and other entities to avoid and/or evade taxation. There's always an element of willfulness to consider, and what might be construed by one as willful intent to evade could only be a good-faith misunderstanding.

At least during the summons and show cause phases, the target should reserve silence and let willfulness be proven down the road. Of course, such a tactic might be more appropriate for someone who has reason to fear investigation, such as association with a tax scheme.

If one or more providers or victims have faced litigation, it should cause a subsequent victim to exercise more caution. For instance, if even one person having used CtC has faced litigation or the loss of their refund, that should cause the next person to reconsider.

Or, in the case of summons, if one or more persons have been unsuccessful using a certain argument, that should cause the next person to rethink the approach. In the case of tax denial, we're dealing with both a mindset bordering on fever and an ignorance of law.

It's hard to convince anyone with either the fever or ignorance to be rational.

Anyway, I think the good Doctor has cleared up my thoughts on reserving silence.

[wserra]

Au contraire. I have invoked the privilege in response to IRS summonses in several cases.
If the target of the summons has unreported income, and the documents which would demonstrate that fact are not ones the IRS already knows of, production of those documents in response to an order compelling compliance with an IRS summons would indeed be "(1) compelled, (2) testimonial, and (3) incriminating."

I knew I shouldn't have gotten into this. I've been out of that world too long (ten years) to remember this stuff in detail. But still:

(1) Isn't demonstrating that the documents an agency seeks are not already in its possession an element of good faith under Powell?

(2) Doesn't "compelled" in this context apply to the preparation (not the production) of the sought records under Doe? Isn't it true that, if the documents at issue were not prepared under compulsion, then there is no act of production privilege?

(3) Were your claims of privilege upheld in written opinions? I'd be interested to see them.

Thanks for the CLE, Doc.

[Dr. Caligari]

I knew I shouldn't have gotten into this. I've been out of that world too long (ten years) to remember this stuff in detail. But still:

(1) Isn't demonstrating that the documents an agency seeks are not already in its possession an element of good faith under Powell?

True. But that does not mean that the Government knows exactly what the taxpayer has that they don't have. If they serve a broad summons for, e.g., "all bank records," and the taxpayer produces records of an account held in the name of a nominee which the Government didn't know about, the taxpayer has, through the act of production, provided incriminatory evidence against himself or herself. The Supreme Court in Hubble made it clear that the act of production is incriminatory if the Government can't show that it knew in advance exactly what documents the taxpayer had.

(2) Doesn't "compelled" in this context apply to the preparation (not the production) of the sought records under Doe? Isn't it true that, if the documents at issue were not prepared under compulsion, then there is no act of production privilege?

Nope. Under Hubble, the act of production is testimonial if it authenticates the documents or reveals the existence of documents previously unknown to the Government. If that act of production is testimonial, it cannot be compelled without immunity.

[Famspear]

The saga of "Ernest" continues. He posts at losthorizons.com:

Well the jerks got their way today [Thursday, June 26, 2008]!

I went in before the judge and he asked me why I didn't comply with the IRS
SUMMONS-
I told him that it violated my 5th and 14th amendment rights!
He heartily DISAGREED!

I mentioned the SECOND CIRCUITS DECISION in BOB SCHULZ 2005 CASE- wherein the court ruled in BOB'S/ OUR FAVOR!
Saying that an IRSS SUMMONS is UNENFORCEABLE WITHOUT A COURT ORDER! That it was in violation of the 5th and 14th AMENDMENT- DUE PROCESS ETC.
It is a very thoughtful decision indeed!

He said, Well, That's in NY, we're in St. Louis! aND HE SAID "Well, that's what I'm going to do"-(give me a court order to comply)

See what they did, was file TWO motions- ONE- was to SHOW CAUSE as to why I wouldn't comply with an IRSS SUMMONS- but they also had filed a motion to enforce the IRSS SUMMONS BOTH AT THE SAME TIME!
I didn't even get a chance to rebut the first one!

So, in the end I HAVE TO GIVE THEM EVERYTHING- of course they say 'everything that I have'- well I don't have but a couple of paychecks-and a couple of bank statements!

The order also says that I HAVE TO TESTIFY- well- I CAN TAKE THE FIFTH ON THAT!

NOONE [sic] CAN MAKE YOU TESTIFY AGAINST YOURSELF!

And they mention receipt of 'TAXABLE INCOME'- well I told them about that on my 1040 and CORRECTED 1099!

So they want the years 2003 - 2006 and the judge said ALSO all the way up until NOW!

The US ATTY, MENTION HOW i TURNED IN MY 1040 WITH ALL ZEROS!

See , here are points that rub-

I DO NOT HAVE TAXABLE INCOME!
But they say I DO!

There is NO ASSESSMENT!
Yet they want my BOOKS AND RECORDS to say see, you have 'INCOME' now they want me to also fill out a FINANCIAL STATEMENT FORM to see what my bills are- so as to determine how much I CAN PAY!

I used to do that- my wife currently has an INSTALLMENT AGREEMENT-
BUT-

for 2007 they AGREED THAT SHE HAD NO ADJUSTED GROSS INCOME or TAXABLE INCOME and said that she should get A REFUND but only for her SS and MEDICARE!

So what's a person to do?

You say I am healing people in the name of GOD- and they say YOU ARE AN AGENT OF SATAN- and they have all the 'WITCH-HUNTERS on THEIR SIDE!

The old joke- "You are driving down the road and have the green light at the intersection- you are in a small car-
The IRSS disobeys a RED LIGHT and smashes into you- they are in a BIG TRUCK-
RESULT- YOU'RE RIGHT, but YOU'RE DEAD!

I don't know what is going to happen- they act just like Bush- the Constitution is a 'goddamned piece of paper- and there is NO RULE OF LAW!

I don't have the money for an attorney- and I will not be able to learn enough fast enough to beat them- so alas, I am SO SCREWED!!!!!!!
I guess.

I wrote back and forth a bit with Tommy Cryer-(who doesn't apparently agree with Pete) and he said one wise thing- if you don't have the menas [sic] or knowledge to beat them DON'T TRY!

They make the RULES of THE CAVE!
Not YOU!

(bolding added)

see
http://www.losthorizons.com/phpBB/viewtopic.php?t=679

And check out the concise, pungent advice from "douglas" in the same thread:

ok well,
first, of it sounds like the judge is guilty of judical misconduct.
you can file a complaint on that,it wont do anything for your case.
but it will lunch [sic] an investigation.

second, did the US ATTY submit any court pes [sic], what evidence did they have, if none report his,her to the state bar ass,ethics dep.

third, they want your records did the sec, [sic] of the irs serve you with papers saying you had to keep them? No, then you have none.

a few thoughts off the top of my head,will get back with more.
these are my opions [sic] and shouldn,t [sic] be considered legal advise [sic].
THE FIGHT IS ONLY OVER IF YOU STOP!!!

(bolding added).

[Dr. Caligari]

I mentioned the SECOND CIRCUITS DECISION in BOB SCHULZ 2005 CASE- wherein the court ruled in BOB'S/ OUR FAVOR!
Saying that an IRSS SUMMONS is UNENFORCEABLE WITHOUT A COURT ORDER!

Which, of course, is absolutely meaningless in this context, because the IRS was in fact seeking a court order to enforce the Summons.

[Famspear]

Ernest at losthorizons wrote:

See what they [the government] did, was file TWO motions- ONE- was to SHOW CAUSE as to why I wouldn't comply with an IRSS SUMMONS- but they also had filed a motion to enforce the IRSS SUMMONS BOTH AT THE SAME TIME!
I didn't even get a chance to rebut the first one!

Uh, Ernest, you did get the chance to "rebut." Today. At the hearing. You failed to even raise the Powell elements. Hence, the result.

The order also says that I HAVE TO TESTIFY- well- I CAN TAKE THE FIFTH ON THAT!

Yes, you might be able to successfully assert the Fifth Amendment privilege against compelled self-incrimination in response to a specific question. But you're going to have to do that on a question-by-question basis. Much fun, eh?

See , here are points that rub-

I DO NOT HAVE TAXABLE INCOME!
But they say I DO!

Wow, thanks for the "heads up" on that one, Ernie!

There is NO ASSESSMENT!

There is also no Walt Disney World on the Planet Neptune. Neither assessment nor Neptunian Walt Disney World is required for enforcement of an IRS administrative summons.

Yet they want my BOOKS AND RECORDS to say see, you have 'INCOME' now they want me to also fill out a FINANCIAL STATEMENT FORM to see what my bills are- so as to determine how much I CAN PAY!

Yeah? Really? What was your first clue on that one, Ernie?

I don't know what is going to happen- they act just like Bush- the Constitution is a 'goddamned piece of paper- and there is NO RULE OF LAW!

I know what is going to happen, Ernest. You are going to find out -- the hard way -- that there is a rule of law. You are going to find out that the rule of law is not what Peter Eric (Blowhard) Hendrickson says it is.

I don't have the money for an attorney- and I will not be able to learn enough fast enough to beat them- so alas, I am SO SCREWED!!!!!!!
I guess.

Yeah, I guess.

[Quixote]

See what they did, was file TWO motions- ONE- was to SHOW CAUSE as to why I wouldn't comply with an IRSS SUMMONS- but they also had filed a motion to enforce the IRSS SUMMONS BOTH AT THE SAME TIME!

The bastards!

I didn't even get a chance to rebut the first one!

By which, of course, he meant the second one. He had not only lost his way; he had also lost count.

[Dr. Caligari]

See what they did, was file TWO motions- ONE- was to SHOW CAUSE as to why I wouldn't comply with an IRSS SUMMONS- but they also had filed a motion to enforce the IRSS SUMMONS BOTH AT THE SAME TIME!

Actually, Einstein, it was only one motion-- to judicially enforce the Summons. Such motions are brought on by Order to Show Cause.

[fortinbras]

The protection against self-incrimination is available in tax cases, but "incrimination" means just that -- evidence that leads to conviction of a crime, not evidence that merely leads to a higher tax bill. The Fifth Amendment cases involving tax returns have held that the Fifth Amendment is not to be lightly pleaded, it must be to specific questions and the judge may require the defendant to articulate a legal theory how his answer to the specific question might incriminate him (I'll admit that providing this legal theory without actually giving the incriminating testimony is a touchy thing).

[Dr. Caligari]

One who has filed a Hendrickson return could, in fact, properly plead the Fifth as to almost any question he will be asked, because any statement about earnings or assets would either be incriminating or could lead to the discovery of incriminating evidence. (Filing a false tax return or refund claim is, after all, a crime under 26 USC 7206[1].) But our friend Ernest is unlikely to articulate his objection properly and will instead probably spout a bunch of nonsense, resulting in a loss of his privilege. He says he can't afford a lawyer, but he is making a serious mistake to do this without one.