http://www.losthorizons.com/phpBB/viewt ... 3073#13073Just received another letter from the Fresno IRS Appeals office. My request for a CDPH is denied due to my "frivolous" positions.
And if I don't change my request for a CDPH or state legitimate issues I will be charge a $5000 "frivolous" penalty and sent back to collections.
So all these legitimate arguments which the IRS will not respond to and I can not address are "frivolous" :
I'm not a 3401(c) "employee"
I don't have "wages" at 3401(a)
I don't work for an "employer" as defined at 3401(d)
IRC, Subtitle A & C governs excise taxes levied on “employees” exercising federally affiliated privileges and prerogatives, and to those who have adopted that status. I'm not one of these people.
I am not involved in a "trade or business" as defined at 7701(a)(26)
I never received a notice and demand for payment
As requested at 26 CFR § 301.6203-1 Method of assessment signed by an assessment officer was never received. FOIA indicates a valid assessment does not exist
The 3 liens placed on my property are illegal. No court order signed by a magistrate. These liens violate the Uniform Federal Lien Registration Act, which requires that a certification signed by a delegated agent must accompany all federal liens.
The IRS and its agents have stepped outside its bounds of authority as indicated at Section 7608
Any suggestions.--Ron
Yeah, Ron, here are a few pointers that might help.
Under section 3401(c), "employee" has its ordinary every day common law meaning -- not the special one that Pete Hendrickson claims it has. The ordinary common law meaning of "employee," is, roughly, a person in the service of another person (the "employer") under an oral or written contract of hire (whether express or implied) where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed. The verbiage after the word "includes" is expansive, not limiting, and every single court that has ever ruled on this topic has rejected what is essentially Pete Hendrickson's argument about what the term means.
You are wrong, Ron. The IRS is correct.
And even if you were right, you'd be wrong. Section 3401 relates only to the withholding requirement imposed on the employer, not to whether the compensation you receive for personal services is includible in gross income under section 61. Peter Hendrickson's arguments about the meanings of words such as "wages," "employer", "employee," "includes," and "including" are rabbit trails. These arguments were rejected in federal courts long before Pete even began copying and using them. Shame on Pete, and shame on you.
Yes, you probably do have "wages" under section 3401(a). And again, that provision deals only with the employer's obligation to withhold, not with your obligation to report your compensation as income and pay the tax.
Yes, you probably do work for an "employer" as defined in the first part of section 3401(d). The first part of that subsection is basically a reiteration of the definition of "common law employer". Different wording than that given above for "employee", but same concept. However, paragraph (1) of subsection (d) refers to one type of "statutory employer." Example: A staff leasing company that pays you on behalf of your regular "common law" employer is a "statutory employer", a section 3401(d)(1) employer, essentially if the staff leasing company reports your wages, etc., on its own Form 941 and W-2 reports. Paragraph (2) deals with something else.
By the way, it just so happens that a few years ago I was retained by a litigant, and was designated as a tax expert, by a federal court judge in a case involving an interpretation of paragraph (1) of subsection (d) of section 3401, in a dispute with that bad ol', mean ol' Internal Revenue Service.
No, Subtitles A and C are not limited to excise taxes levied on “employees” exercising federally affiliated privileges and prerogatives, and to those who have adopted that status. You may or may not be one of these people, but if you receive compensation for personal services, you are generally required to report the gross amount of that compensation as income under section 61. Now, stop reading Cracking the Code and go look for a court case that contradicts what I just said. I have found plenty of court cases where the courts ruled against Pete's arguments.
Nobody really cares whether you're involved in a trade or business, at least if we're just talking about whether your compensation is includible in gross income under section 61.
There is no legal requirement that the IRS provide you with a "signed" document evidencing the assessment in order for the assessment to be legally valid. Freedom of Information requests are interesting (yyyyawwnn), but I doubt that you are correct that the documents, if any, you received under FOIA really show that "a valid assessment does not exist". The regulation, 26 CFR 301.6203-1, states that the assessment shall be made by an assessment officer signing the summary record of assessment. The regulation does not state that you are legally entitled to see that signature. What the regulation states is this:
You are not legally entitled to see a copy of the actual signed document in order for the assessment to be legally valid. And, if you're interested: Even if you're contesting a tax in federal court, the courts have uniformly ruled that a Form 4340 (rather than the actual, original signed assessment document) can be used in court to prove up the assessment.If the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.
You didn't receive a formal section 6303(a) notice and demand? Unfortunately, I believe the courts have ruled that lack of actual receipt does not matter. The "last known address" rule applies. See, for example, Lutz v. United States, 93-2 U.S. Tax Cas. (CCH) ¶50,574 (E.D. Ky. 1993), citing Wilson v. Commissioner, 564 F.2d 1317, 1319 (9th Cir. 1977) (per curiam); and James v. United States, 970 F.2d 750, 755 (10th Cir. 1992). That doesn't seem fair, but that does seem to be the law.
A federal tax lien does not require the signature of a "magistrate" in order to be valid. A federal tax lien arises by operation of law, once certain internal procedural steps are followed by the IRS.
The Uniform Federal Lien Registration Act may or may not be "uniform" from state to state (and it's a state law, not a federal law). I do know about the Texas version, which is codified as Chapter 14 of the Texas Property Code, sections 14.001 through 14.007. The Texas statute does not expressly state that anything must actually be signed. Your state's statute might be different, though.These liens violate the Uniform Federal Lien Registration Act, which requires that a certification signed by a delegated agent must accompany all federal liens.
More directly to the point, it's probably irrelevant. Why? The federal tax lien would be valid against you, Ron, the taxpayer, even if the IRS never bothered to file a notice of lien. The purpose of filing a notice of lien is to protect the rights of the IRS as against your creditors. It has almost nothing to do with the validity of the tax lien as against you. The IRS might well already have a valid lien, and the IRS would not need to "register" or "record" any notice of that lien anywhere in order to legally seize your property -- without even having to go to court for permission.
The IRS and its agents have "stepped outside its bounds of authority as indicated at Section 7608"? Hard to comment unless you can be specific, Ron.
