By Dan Meador

Revision July 18, 2000

A letter which you might wish to send to the Commissioner has a load of hitherto unknown factual knowledge. It can be copied from this link. [Right Click and open in new window so you can just close and return here]

Using the FOIA to Secure Evidence

A small group in Kay County, Oklahoma began using Privacy Act and Freedom of Information Act requests to secure documents from the Internal Revenue Service Arkansas-Oklahoma District disclosure officer in June 1999. The purpose of the requests is to secure evidence — either documents IRS personnel are required to complete for tax assessment and collection, or verification that the required documents do not exist. When a growing number in our congressional district submits variations of the model FOIA that follows, we will be in the fourth round of requests.

There has been an evolution in the process. At the onset, we weren’t certain if we should use Privacy Act or Freedom of Information Act requests, so both were used by early participants. After first-round responses, we concluded that the FOIA is adequate and more practical. Technically, either forum should work.

The model is reasonably inclusive. Anyone who wants to secure documents relative to his or her tax situation should be able to select appropriate requests. For example, someone who has been paying federal tax, but doesn’t believe there is a legitimate liability, might want to submit a FOIA with requests 1-4, 6, 7 & 13. Responses might provide a "factual" basis for recovering amounts previously paid, and seeking an administrative determination that he or she is not required to keep books and records, file returns, and pay tax prescribed in the Internal Revenue Code.

Those originally participating in the project were each subjected to Internal Revenue Service administrative seizure, garnishment, recorded "notice of lien" encumbrances, etc. IRS personnel took these initiatives without first securing judgments, writs of execution, writs of garnishment and/or other judicial process.

Significant recent research breakthroughs enabled us to construct this FOIA and develop strategy that will be deployed once we have secured documents, or verification that documents do not exist. In the meantime, we have resorted to outside assistance. We submitted notice of possible complaints to the Treasury Inspector General of Tax Administration, and backed that up with cover letters and duplicates of information to our two Oklahoma senators and the representative for our district. We have received notice from the office of the Treasury Inspector General that a case file has been opened and a number has been assigned, and one person in our group received word from Senator Don Nickles that he is making inquiries via the Arkansas-Oklahoma district office on our behalf.

Several research breakthroughs in the last year contributed to particularizing the FOIA requests. I’ll treat some of them briefly, since background will shed light on the reason for each requested document.

One of the more important reasons is that there are no internal revenue districts of the United States in the several States. Authority for the President to establish internal revenue districts is at 26 U.S.C. § 7621. The President delegated authority to the Secretary of the Treasury to establish revenue districts via Executive Order #10289, as amended. The Secretary established customs collection offices under jurisdiction of the United States Customs Service in the several States, but no internal revenue districts as such.

In the fall of 1995, William Cooper and Wayne Bentson published constructive evidence that IRS is successor of the Bureau of Internal Revenue, Puerto Rico. {see link above for the letter to the Commissioner} My research confirmed theirs. In January of this year, I found that the first civil governor and executive committee of Puerto Rico established five bureaus that eventually became BIR, Puerto Rico on May 1, 1900. That particular lineage is now complete. It has been common knowledge, and in the IRS organization statement published in the Federal Register and Internal Revenue Manual, it is verified that Congress did not legislatively create a Bureau of Internal Revenue, i.e., Internal Revenue Service. However, documenting that there are no internal revenue districts in the Union of several States makes IRS origins moot. Per 26 U.S.C. § 7621, revenue officers, regardless of agency, have jurisdiction solely in revenue districts established under authority of 26 U.S.C. § 7621 & E.O. #10289. Thus, the "source" questions in the FOIA that follows.

"Source" is a second paramount issue.

What is known to most people as "income tax", is actually "normal tax". The normal tax is a species of income tax. All income taxes are excise taxes. The normal tax is a privilege excise tax where the "wage" is not the object, but the measure of the tax. Privileges derived from government service are the object. The normal tax was resurrected from the federal employee tax imposed via the revenue act of July 1, 1862. It was enacted "in lieu" of individual income tax of 1916 & 1917 (42 Stat. 233).

Theoretically, the normal tax is mandatory for all officers and employees of United States Government, and governments of United States territories and insular possessions. However, Thurston Bell’s research pertaining to "gross income" demonstrates that "source" is vitally important for another reason. Only nonresident aliens with United States "source" income, and United States citizens living abroad with income derived from a United States trade or business have "gross income" subject to normal and other income taxes imposed by the Internal Revenue Code. [Also, United States citizens, have income derived from a foreign source, where the U.S. has a tax treaty, even if they live within the 50 States of the union]

Possibly the third most important matter of completed research relates to due process.

The Fifth Amendment secures the right of due process of law: No person shall be deprived of life, liberty or property without due process of law. The Internal Revenue Code preserves due process at 26 U.S.C. § 7804(b):

Jurisdiction for civil action is prescribed at 26 U.S.C. § 7402, then the balance of Chapter 76 of the Internal Revenue Code includes procedural sections unique to the tax code, but actual debt collection process is in Title 28 of the Code, Chapter 176, beginning with § 3001. Here is where we find judgment for lien, writ of garnishment, et al.

A tax liability is a debt owing the United States. All debts are collected in more or less the same way. Only specific actions, unique to tax law, are classified in Chapter 76 of the Internal Revenue Code.

A lien is an encumbrance that deprives, whoever it is against, the full enjoyment and benefit of his property. Under federal law, a lien may arise in one of two ways: It may arise by agreement, which includes licensing and the like, or by judgment. Where there is no preexisting license or other contractual condition relative to any given enterprise, a lien may be secured only by judgment. In other words, the "statutory" federal tax lien (26 U.S.C. § 6321 et seq.) does not have general application except as a post-judgment remedy.

One of the few ways a private enterprise may lawfully be drawn into the federal income tax scheme is via contract for work on public buildings and lands, and public works programs in general. The contractual obligation must be bonded, per 40 U.S.C. § 270a(d).

Possibly it is necessary to see the federal tax system from an overview: By the early 1920s, Congress had for all practical purposes abandoned Article I delegated authority by moving federal law, including tax law, under authority of the territorial clause at Article IV § 3 ¶ 2 of the Constitution. State officials accommodated the scheme through assorted uniform "adopted" acts. The scheme is variously known as Federalism or Cooperative Federalism. So far as the federal tax system is concerned, virtually all "income" taxes, other than the normal tax, were repealed via the revenue act of November 23, 1921. When they were reenacted, they were enacted as "municipal" law, applicable solely in territory subject to the sovereignty of the United States, under the territorial clause. The shift was formally completed via the Internal Revenue Code of 1954. To that point, federal revenue districts more or less corresponded with congressional districts or state borders. An assessment officer and a collection officer were appointed within each district. Via Reorganization Plan No. 26 of 1950 and Reorganization Plan No. 1 of 1952, implemented by the Internal Revenue Code of 1954, these quasi-independent positions were abolished in favor of federal tax administration being placed under the Internal Revenue Service, Puerto Rico.

However, the kicker or sleeper in the mix is the General Accounting Office. GAO was established as general agent of the Treasury of the United States in 1921 (42 Stat. 23), and is responsible for determining all liabilities of, or against, the United States.

With this background, FOIA requests that follow should make sense to those wishing to adapt various requests to personal circumstance.

A unique aspect of requests that follow is that many are specific, with respect to form or letter number, which revenue officers and others must perfect, at any given step of the assessment and collection process. These documents are known by IRS personnel as they are identified in the coursework that revenue officers are required to take. Therefore, they are presumed to know the law and can be held directly accountable. See 26 U.S.C. § 7804(b) relating to personal liability.

[The sample letter of FOIA request follows]

Freedom of Information Act/Privacy Act Request

                                                                                                                                                July 18, 2000

Sam Smith, Disclosure Officer

Arkansas-Oklahoma District

Internal Revenue Service

55 N. Robinson, Stop 7000

Oklahoma City, Oklahoma 73101

IDENTIFICATION: Joe Public (444-44-4444)

Dear Mr. Smith:

This Freedom of Information Act/Privacy Act request is being sent under authority of 5 U.S.C. §§ 552 § 552a and 26 CFR § 601.702.

The information requested is for my personal use. I am not involved with media, educational or other enterprise that falls under other classes.

You have my firm promise to pay an amount up to $40.00 for all documents beyond those provided free. If the estimated cost of documents exceeds the promised $40.00, please notify me of the estimated cost prior to sending the documents.

If requested documents are for some reason classified, please redact classified sections then send portions which are not redacted. In the event documents are classified, please include an explanation of why they are being withheld or redacted. I reserve the right to appeal.

If the requested documents are not kept at Arkansas-Oklahoma District offices, please forward this request to the office where they are located. This is Congress' intent, per House Report 105-37 (105^th Congress):

The compilation -- formally called Privacy Act Issuances -- may be difficult to find and hard to use. It does not contain a comprehensive index. Copies will be available in some Federal depository libraries and possibly some other libraries as well as the website maintained by the Office of the Federal Register (see note 20). Although the compilation is the best single source of detailed information about personal records maintained by Federal agencies, it is not necessary to consult the compilation before making a Privacy Act request. A requester is not required to identify the specific system of records that contains the information being sought. It is sufficient to identify the agency that has the records. Using information provided by the requester, the agency will determine which system of records has the files that have been requested.

Please certify all documents, or have them certified as true and correct, with Form 2866, Certificate of Official Record, or in the event requested documents do not exist, certify that they don't with Form 3050, Certificate of Lack of Records.

Please provide true and correct copies of the following documents, or in the alternative, certify that they do not exist:

1.                  For years ending December 31, 1994 through 1999, please provide certified copies of notices from the district director of an internal revenue district that I am or was required to keep books and records and file returns for any or all of the eight classes of tax administered by the Internal Revenue Service. (Notice 555 Filing Requirements and/or Letter 978 (DO) notice of required records; see 26 CFR § 6001, 26 CFR §§ 1.6001-1(d) & 31.6001-6; and D.O. #24)

2.                  For calendar years above, please send Form 1040 returns which Internal Revenue Service personnel completed for me and I voluntarily signed subsequent to completion. (26 CFR § 301.6020-1(a))

3.                  For calendar years above, please send Form 1040 substitute for returns effected unilaterally by Internal Revenue Service personnel for me in compliance with requirements of 26 CFR § 301.6020-1(b).

4.                  Please send support documents on which the substitutes for return are based.

5.                  Please send certified copies of assessment certificates for calendar years ending December 31, 1994 through 1999 for each class of tax principal, interest and/or penalty. (See 26 U.S.C. § 6203; 26 CFR § 301.6001-1; and Internal Revenue Manual §§ 3.17.63.14.2 through 3.17.63.14.21)

6.                  Please send certified copies of support documents for each assessment. (See 26 CFR § 301.6203-1)

7.                  Please send certified copies of 10-day notice and demand notices for payment served subsequent to each assessment. (See 26 U.S.C. § 6303 & 26 CFR § 301.6303-1)

As a caveat, you are cautioned that § 1203 of the Internal Revenue Service Restructuring and Reform Act of 1998 (P.L. 105-206) requires that Internal Revenue Service personnel comply with provisions of the Internal Revenue Code of 1986, Treasury regulations, and policies of the Internal Revenue Service, including the Internal Revenue Manual. Failure to comply is cause for disciplinary action, which may result in discharge and other appropriate measures.

Your timely assistance is appreciated.

                                                                Regards,

                                                                Joe Public

Notary Public

I certify that Joe Public, known to me, endorsed this Freedom of Information Act request on the date below.

My commission expires ______________________________________.

_______________________________________                                      __________________

Notary Public                                                                                                                         Date

SEAL: