CtC Warrior Herriman Spanked by District Court

[LPC]

From a recently locked thread:

The Crooked Crackheads have another loss to digest -- posted by Crackhead "sandiegoscott" here:

http://www.losthorizons.com/phpBB/viewt ... a7ca#22196

The case is Herriman v. United States, case No. 2:08-cv-807-FtM-29DNF, in the United States District Court for the Middle District of Florida, Fort Myers Division.

The Opinion and Order of the Court (on December 3, 2009) is reproduced on the losthorizons page linked above. The usual Cracking the Code tax scam nonsense is blown away yet again by another federal court. I don't see a specific mention of Peter Hendrickson or of Cracking the Code or "losthorizons," but there's a strong chance that Mr. Herriman has been drinking Hendrickson's poison kool-aid.

Robert W. Herriman is indeed a "CtC Warrior," because his 2003 and 2004 refund checks can be see at http://www.losthorizons.com/tax/MoreVictories9.htm

What's odd is that the IRS has not yet tried to recover the 2003 and 2004 refunds paid in 2006, even while (according to the district court) the IRS has been assessing frivolous return penalties against him for his returns for other years (apparently, years 2002, 2005, and 2006).

Definitely someone to watch, and from whom we can expect very small things in the future.

[LPC]

The text of the opinion reproduced at LH does not include the court's footnotes, which is a shame because one of the footnotes refutes one of the knee-jerk reactions of the crackheads.

Specifically, the court wrote:

The crux of Herriman's claim against the Government is that he seeks a refund of federal income taxes withheld from his wages because the Government does not possess the authority to collect taxes from the plaintiff, a private sector employee.[ 2 ] Herriman also argues that the Sixteenth Amendment does not authorize a non-apportioned direct income tax on United States citizens. The Government challenges Herriman's complaint on the grounds that similar lawsuits have been dismissed as frivolous by nearly every court in the United States, and therefore there is no set of facts upon which the plaintiff can be granted relief by this Court.

The Court agrees with the Government on this issue. The interpretation of wages as taxable income is "well established and long settled." Waters v. Comm'r, 764 F.2d 1389, 1390 (11th Cir. 1985).[ 3 ] Congress has the power to "lay and collect taxes on income, from whatever source derived, without apportionment among the several states." Madison v. United States, 758 F.2d 573, 574 (11th Cir. 1985) (emphasis added). Taxable income is defined as "all income from whatever source derived, including . . . compensation for services." 26 U.S.C. § 61(a). It is clear, and the Eleventh Circuit has long held, that compensation for services includes salary and regular wages. See Biermann, 769 F.2d at 708. Claims that wages are not taxable income are "patently frivolous" arguments "rejected by courts at all levels of the judiciary," and should warrant no consideration by the Court. Id.

The statute that Herriman cites in support of his definition of income is of no help to his case. Title 26, United States Code, Section 3401(a) states that the definition of the term "wages" for purposes of federal withholding means "all remuneration . . . for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash." The language of Section 3121 parallels the same definition. 26 U.S.C. § 3121. Herriman argues he is not an employee, and only received "non-federally-connected private sector remuneration" from ten different companies. (Doc. #18, ¶ 46.) Herriman argues that such remuneration is not wages under the Code. It is clear from the plain language of 26 U.S.C. § 3401(c) that the definition of "employee" is broad and inclusive, and that private sector individuals are included in the meaning of the term "employee." To argue that the definition of "employee" under Section 3401(c) does not include private wage earners "is a preposterous reading of the statute. It is obvious that within the context . . . the word `includes' is a term of enlargement not of limitation, and the reference to certain entities or categories is not intended to exclude all others." United States v. Latham, 754 F.2d 747, 750 (7th Cir. 1985).

Footnote 2 reads:

2 Specifically, Herriman argues that (1) he was not an “employee” as defined in 26 U.S.C. § 3401(c); (2) the hospitals and staffing services where he was employed were not his “employer” as defined in 26 U.S.C. § 3401(d); (3) he did not perform any “service” as defined in the Classification Act of 1923; (4) he did not receive any “compensation” as defined in the Classification Act of 1923; and (5) he did not participate in a “trade or business” as defined in 26 U.S.C. §§ 7701(a)(26). (See Doc. #18, ¶¶ 41-45.)

Which completely refutes the immediate claim by SubVet that the opinion is "Another example of the deliberate misconstruction of the actual argument..."

How could the court "misconstruct" an argument it quotes? And it what way did the court "misconstruct" the argument? There's no way of knowing, because SubVet has no way of saying.

For what it's worth, footnote 3 reads:

3 See also Motes v. United States, 785 F.2d 928, 928 (11th Cir. 1986); Hyslep v. United States, 765 F.2d 1083, 1084 (11th Cir. 1985); Hobson v. Fischbeck, 758 F.2d 579, 581 (11th Cir. 1985); Biermann v. Comm’r, 769 F.2d 707, 708 (11th Cir. 1985) (per curiam).

[LPC]

The government was nice enough to attach transcripts for Herriman's taxes to the motion for dismiss. The transcripts (all as of 4/6/2009) show the following:

1. For the year 2002, Herriman filed what looks like it was a legitimate return in 2003, reporting $54,867 in AGI, $37,922 in taxable income, and $6,586 of tax, for which he received a $4,464 refund based on $11,050 of withholdings. He then tried to file an amended return and a frivolous return penalty of $500 was assessed on 11/20/2006, a notice of intent to levy was issued on 3/4/2008, and an additional frivolous filing penalty was assessed on 10/6/2008, meaning that Herriman must have tried fighting the levy with more CtC-inspired nonsense. Interest amounted to $225.14 as of 4/6/2009, which means that Herriman owes $5,725.14 of interest and penalties for 2002.

2. For the year 2003, Herriman did file what looks to be a legitimate return in 2004, getting a refund of $4,820 from withholdings of $15,236 and an assessed tax of $10,416 based on $73,082 of AGI and taxable income of $65,828. He then filed an amended return and got a refund of $17,950.71 on 3/20/2006. The transcript then gets very messy, but it looks like all of the taxes were re-assessed, so that there is now tax, interest, and penalties (not including frivolous return penalties) totalling $23,577.35. And a notice of intent to levy was issued on 3/4/2008. A frivolous return penalty of $5,000 was assessed on 8/25/2008, but it's not clear if it was in response to the amended return on CDPH nonsense. A notice of intent to levy to collect the frivolous return penalty was issued on 1/29/2009.

3. For the year 2004, a return was filed in 2005 that claimed taxes withheld of $6,659.60 and a refund of the same amount, which was paid. But the same amount was assessed as tax on 2/5/2007, although $2,166 of tax was abated on 6/30/2008 (don't know why). As of 4/6/2009, there is also $586.07 of interest and $1,123.40 of penalties. The original return resulted in a frivolous return penalty of $500 assessed on 9/24/2007, with a notice of intent to levy issued on 3/4/2008. As for the other years noted above, Herriman must have responded with CtC nonsense, because a frivolous filing penalty of $5,000 was assessed on 8/25/2008.

4. For the year 2005, a return was filed in 2006 that claimed taxes withheld of $12,373.26 and a refund of the same amount, which was paid. However, the IRS later assessed tax of $25,157, along with an accuracy penalty of $5.231. A notice of intent to levy was issued on 1/29/2009. A frivolous return penalty was assessed on 9/22/2008.

5. For the year 2006, there is a credit shown of $7,591.43 for tax withheld. There is a notation that a return was filed and a tax was assessed for $0, but there is no refund shown and no penalties assessed.

6. For the year 2007, there is a return filed (not sure by whom) and tax assessed for $9,193, and a withholding credit of $10,290, for an account credit balance of $1,097. No refund and no penalties shown.

Adding up the total balances owed (but ignoring 2006 and 2007, which were obviously not finally determined), we find a total owed in tax, interest, and penalties of $93,765.86.

And I think it's going to get worse before it gets better.

[LPC]

Incidentally, there's nothing docketed for Herriman in the Tax Court, so it's not clear whether he's continuing to fight the threats of levy through collection due process proceedings.

[Nikki]

What's odd is that the IRS has not yet tried to recover the 2003 and 2004 refunds paid in 2006, even while (according to the district court) the IRS has been assessing frivolous return penalties against him for his returns for other years (apparently, years 2002, 2005, and 2006).

The key work is "yet."

Why try and close out the account when you keep accruing interest on what's due AND you can keep assessing $5,000 bonuses.

Eventually, there WILL be a major collection initiative against this bozo which will include seizing all his liquid assets, garnishing wages/salaries down to a subsistence level, and sale of his home.

[Quixote]

Why try and close out the account when you keep accruing interest on what's due AND you can keep assessing $5,000 bonuses.

Eventually, there WILL be a major collection initiative against this bozo which will include seizing all his liquid assets, garnishing wages/salaries down to a subsistence level, and sale of his home.

Assuming he has liquid assets, still has a job after annoying his boss with W-4 terminations, and hasn't mortgaged his home to the rafters.

[LPC]

Hendrickson has posted his own spin on the Herriman thread on Lost Horizons:

This is not "Another 4852 case lost". It is another "We're going to pretend that we don't understand you, Mr. Educated American, because we can't respond to what you're actually saying and keep our scam going..."

I wrote the following to Bob Herriman after Doreen brought this thread to my attention:

"Bob, someone posted the recent district court ruling in your suit on the national forum. I'm guessing that not a single bit of the language attributed to your complaint by the judge actually appears there as represented by the judge. Please send me a copy of the complaint so I can see for myself.

"For instance, his ruling says: "(Doc. #18, ¶ 2.) Herriman argues that the Internal Revenue Code's definition of income differs, and under that definition as set forth in specific sections of the Code (namely, 26 U.S.C. §§ 3401, 3121, and 7701), his wages did not constitute taxable income. (Id.)" Did you say that your "wages did not constitute taxable income"?

"The court also says, "The IRS disallowed Herriman's returns after deeming them to be frivolous, and sent plaintiff letters informing him that returns could not declare that: "wages are not income," that "only federal employees are subject to the income tax," and that "the income tax is unconstitutional." (Doc. #18, ¶ 5.)" Did your returns contain these claims?"

In reply, Bob sent me a .pdf of his amended complaint. The two paragraphs to which the judge refers in the ruling excerpts above are as follows:

2. For each of the years 2002 through 2007 the individuals acting on behalf of St. Joseph Hospital, Desoto Memorial Hospital, Affordable Staffing, Lehigh Regional Medical Center, Lloyd Personnel Consultants of Ft. Lauderdale, American Med Central, North Ridge Medical Center, Englewood Community Hospital, Nursecore Management Services LLC, or All About Staffing, who signed the Form W-3 to which the erroneous Form W-2 was attached, erroneously created a tax debt for plaintiff under the presumption that the IRS language on the Form W-2 instructions uses regular English dictionary words rather than the custom narrowly-defined “word-of-art” legal terms statutorily defined in 26 U.S.C. sections 3401, 3121, 7701, and several others.

5. The IRS refused to answer plaintiff’s straightforward questions. Instead, the IRS sent plaintiff form letters falsely claiming that plaintiff alleges legal absurdities including “wages are not income”, “only federal employees are subject to the income tax”, and “the income tax is unconstitutional” to facilitate citing case law not on point with plaintiff’s straightforward questions. Defendant has no facts in evidence to support such false allegations.

I wonder if Hendrickson's sentencing judge would like to know that Hendrickson continues to publicly refer to the federal income tax as a "scam"?

Or are we already beyond any consideration of contrition by the inmate-to-be?

[bmielke]

Herriman went through 10 jobs in five years?

That seems like a lot to me.

[webhick]

Herriman went through 10 jobs in five years?

That seems like a lot to me.

Sounds like someone hardly ever makes it out of the 90 probationary period (assuming he doesn't immediately get a job after becoming unemployed).

[Thule]

Herriman went through 10 jobs in five years?

That seems like a lot to me.

Lots of temporary jobs, perhaps.

Anyway, meet Robert Herriman. A bit of circumstantial evidence suggests that the unfortunate CtC-warrior is a microbiologist.
http://bactiman63.blogspot.com/

His blogger-profile links to another blog that does a bit on the injustice done to Sherry Peel Jackson and Bill Benson. So I think this is the right guy. He's even on Twitter.

[Joey Smith]

That is not a lot of jobs when you consider that he is going to each employer and demanding that they "correct the record" by stating that he is not an employee and not earning wages, then threatening to sue them when they don't also buy into his nutjob theories.

[notorial dissent]

If our boy gave Petey, something like valid information, he is more likely some kind of medium level medical professional, judging by what he was reported, he is either not working full time or is working a low end job in the field, I am betting on the not working all that much, and the temp agencies just forget to call him after he annoys them enough with his “I am not being paid wages” nonsense, thus explaining the number of jobs. I would suspect the temp jobs are the result of his tax theories as the hospitals aren’t very patient with type of nonsense and whatever he is doing there are probably more than enough people to fill the vacancy after he is not called back.

And now he is really in luck, Pete is going to "help" him with his problems.

[The Observer]

And our intrepid CtC Warrior again runs into another obstacle, trying to find a court that will allow him to argue his case ad nauseum:

ROBERT HERRIMAN,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.

Release Date: MARCH 17, 2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Non-Argument Calendar

D.C. Docket No. 2:08-cv-00807-JES-DNF

Appeal from the United States District Court
for the Middle District of Florida

(March 17, 2011)

Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

Robert Herriman, proceeding pro se, brought this action against the United States for a refund of federal income taxes withheld from his wages for the years 2002, 2006, and 2007. The Government moved to dismiss his amended complaint on the ground that Herriman's claims were frivolous, and, on December 3, 2009, the district court found the complaint frivolous and granted the motion with prejudice.

On December 23, 2009, Herriman filed a timely motion to alter or amend judgment. See Fed. R. Civ. P. 59(e). The motion stated, inter alia, that the court had misconstrued the nature of his suit and thus should vacate its judgment and permit him to amend his complaint to frame the pleading on the issues of statutory construction and burden of proof. The court denied his motion on April 27, 2010. The next day, April 28, Herriman filed a motion asking the court to declare the law of the case. The Government responded, saying that Herriman was merely arguing his original claims. On May 20, 2010, the court denied his motion, concluding that Herriman was simply rearguing and raising the same issues as before. On July 15, 2010, Herriman took this appeal.

In civil cases, the timely filing of a notice of appeal is a mandatory prerequisite to the exercise of appellate jurisdiction. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In a civil case where the United States or its agency is a party, a notice of appeal must be filed within 60 days after the judgment or order appealed from is entered. Fed. R. App. P. 4(a)(1)(B). Rule 4(a)(4)(A) identifies certain post-trial motions that, if timely filed, toll the appeal-filing period. See Fed. R. App. P. 4(a)(4)(A); Fed. R. App. P. 59; and Browder v. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521, 531. These include a Rule 59(e) motion to alter or amend the judgment and a Rule 60 motion for relief from judgment, both of which toll the appeal-filing period if they are filed within 28 days of entry of the judgment. See Fed. R. App. P. 4(a)(4)(A); Fed. R. Civ. P. 59(e). An untimely Rule 4(a)(4) motion does not toll the time to appeal. See, e.g., Pinion v. Dow Chem., U.S.A., 928 F.2d 1522, 1525-26 (11th Cir. 1991). In addition, successive tolling motions by the same party raising substantially the same grounds for relief do not continue to toll the time to appeal. Wright v. Preferred Research, Inc., 891 F.2d 886, 889-90 (11th Cir. 1990).

Furthermore, Fed. R. App. P. 3(c)(1)(B) requires that a notice of appeal "designate the judgment, order, or part thereof being appealed." Ordinarily, the failure to abide by this requirement will preclude this court from reviewing any judgment or order not so specified. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986). An express designation of the order appealed from infers the lack of intent to appeal unmentioned orders. Osterneck v. E.T. Barwick Industries, Inc., 825 F.2d 1521, 1529 (11th Cir. 1987).

Even if we construe Herriman's motion to declare the law of the case as a Rule 4(a)(4) motion, it did not toll the appeal-filing period because it was not filed within 28 days of entry of the final judgment, and it raised substantially the same grounds for relief as his prior motions. Because his notice of appeal was filed more than 60 days after the time prescribed for appealing from the final judgment or from the motion to alter or amend the judgment, we lack jurisdiction to review only the district's order denying Herriman's motion to declare the law of the case. 1 Moreover, since Herriman's notice of appeal expressly designated only the district court's denial of his motion to declare the law of the case, we infer that he did not intend to appeal the other unspecified orders.

AFFIRMED.

FOOTNOTES:

/1/ Even if we were to entertain Herriman's appeal, we could not consider his law-of-the-case argument because he has abandoned the argument by not advancing it in his brief.

[LPC]

The next day, April 28, Herriman filed a motion asking the court to declare the law of the case. The Government responded, saying that Herriman was merely arguing his original claims. On May 20, 2010, the court denied his motion, concluding that Herriman was simply rearguing and raising the same issues as before.

What on earth is a motion to "declare the law of the case"?

My understanding of "law of the case" is that it's a variant on the concept of res judicata, but applies within a case while it is being litigated. So, for example, if a court is reversed on appeal and the case is remanded, previous rulings that were not appealed or not reversed will not be reconsidered.

But what could that have to do with a plaintiff whose complaint has been dismissed for failure to state a claim?

I looked up Herriman's motion on PACER, and found that it included the following:

3. The court made a clear error of law when it rendered judgment having never properly declared the law of the case.

[snip]

5. Plaintiff is not asking the court to declare the rights and the duties of the parties to render a declaratory judgment. Plaintiff is merely asking the court to clarify the law of the case by answering significant federal questions of first impression involving statutory construction / interpretation.

c. Federal Questions of First Impression

6. Plaintiff raises two straightforward federal questions of first impression going to the
merits of the case:

• Does the definition of "employee" at 26 U.S.C. § 3401(c) and its corresponding regulation published by Congress in the Federal Register at 8 FR 12267, § 404.104 - Employee, import a general class, some of whose particular instances are those specified in the definition?

• Does the definition of "trade or business" at 26 U.S.C. § 7701(a)(26) import a general class, some of whose particular instances are those specified in the definition?

D. Argument

7. A court having jurisdiction of the parties and of the subject-matter of the suit has a legal duty to declare the law of the case between the parties. Cresent City Live Stock Co. v. Butchers' Union Slaughter-House Co., 7 S. Ct. 472, 120 U.S. 141 (1887) ("Having jurisdiction of the parties and of the subject-matter of the suit, the judges of the Circuit Court were bound to declare the law of the case between the parties.")

[The usual CtC nonsense about "employee" and "trade or business" deleted]

I haven't checked out the context of what the Supreme Court wrote in the cited case, or how it might have been taken out of context, but even if it means what Herriman thinks, he still misunderstood the significance of the district court ruling in his case. When the district court ruled that his complaint was frivolous and dismissed it, the court WAS declaring "the law of the case."