In order for any government agency, subsidiary or law to be applied to an individual American Citizen, it must be first proved or assumed that the government has jurisdiction in this matter over that particular individual for that time. Specifically, before an individual can be charged and convicted with a crime, the government official or agency must prove jurisdiction. This is seldom accomplished, and many individuals lose a case and even go to jail when no one has proved this legally essential issue.
No where is this more common than in Internal Revenue Service cases against so-called tax protesters. The IRS almost never attempts to prove jurisdiction. In fact, jurisdiction is almost never even addressed. If the individual is correct in his/her claims that he/she is not a taxpayer as defined in the Internal Revenue Code, then the IRS HAS NO JURISDICTION! With no jurisdiction comes no case and no conviction! But to win, jurisdiction MUST be challenged by the individual, and if challenged successfully, the case is dismissed.
There are seven elements of jurisdiction, all of which must be proved by the prosecution if challenged. If not challenged, it will ALWAYS be assumed by the court that competent jurisdiction is proved and accepted by all parties. If any element of the seven is not proved, the case must be dismissed. The normal process in a case against a so-called tax protester is to ignore the jurisdiction issue altogether, or else to challenge jurisdiction while at the same time conforming to procedures and requirements that assume jurisdiction. In other words, one cannot allege the IRS has no jurisdiction over one while at the same time one continues to file a Form 1040 each year.
In the very few IRS cases where jurisdiction is challenged, almost always the judge will proclaim jurisdiction from the bench. [“It is the opinion of this court that the prosecution has jurisdiction in this case, and exercises it regularly, almost every day. I don’t think we need to go through all that today.”] This is a total violation of law and accepted court procedures. But most federal judges won’t let that stop them! But the one alleging jurisdiction must prove jurisdiction if jurisdiction is challenged. Usually the defendant charged with a crime is too intimidated or ignorant to successfully challenge a judge on this, but the judge MUST be challenged if he/she proclaims that the prosecution (IRS) has jurisdiction in this case. If he/she is not successfully challenged, almost always the individual will lose the case.
One of the easiest and most common means of alleging jurisdiction on the part of the prosecution (IRS) is to refer to the accused as a “taxpayer.” If that word is ever used in reference to the so-called tax protester,” it MUST be immediately challenged. [“I object, your Honor. The prosecution has just labeled me a taxpayer. Whether or not I am a taxpayer is the very root issue in this case, and has not been proven by the prosecution. I respectfully request that the word ‘taxpayer’ be stricken from the record and that the prosecution be instructed to not use that word again until it has proven that I am indeed a taxpayer.”] If the defendant does not challenge that word, and similar techniques used by the IRS, the judge will have legal justification to assume jurisdiction. Of course, if the defense has done its job, the issue of taxpayer and jurisdiction would already be established. The time to challenge jurisdiction is at the beginning of the trial, not at the end when it looks like the individual is
about to lose. If jurisdiction is to be successfully challenged, it must be at the very beginning of the trial. To allow the trial to continue at all is to admit to jurisdiction. Below are the seven issues of jurisdiction in any and every court case. Remember, if any one of these seven are not proven beyond a reasonable doubt, the case cannot continue.
1. The accused must be properly identified; identified in such a fashion there is no room for mistaken identity. The individual must be singled out from all others; otherwise, anyone could be subject to arrest and trial without benefit of “wrong party” defense. Almost always the means of identification is a person’s proper name, BUT, any means of identification is equally valid if said means differentiates the accused without doubt. (By the way, there is no constitutionally valid requirement that you must identify yourself to the judge or to anyone.) For stop and identify issues (4th Amendment) see Brown v. Texas, 443 US 47 and Kolender v Lawson, 461 US 352.
2. The statute of offense must be identified by its proper or common name. A number is insufficient. Today, a citizen may stand in jeopardy of criminal sanctions for alleged violation of statutes, regulations, or even low-level bureaucratic orders (example: Colorado National Monument Superintendent’s Orders regarding an unleashed dog, or a dog defecating on a trail). If a number were to be deemed sufficient, government could bring new and different charges at any time by alleging clerical error. (“I’m sorry, your Honor. I assumed that the regulation indicated by that number was a legitimate statute. My secretary must have made an error.”) For any act to be triable as an offense, it must be declared to be a crime. Charges must negate any exception forming part of the statutory definition of an offense, by affirmative non-applicability. In other words, any charge must affirmatively negate any exception found in the law. Example of exception from a case where someone was on trial for Section 7203, Willful Failure to File(a Form 1040): “… thereof to make a return (other than a return required under authority of 6015)… Indictment or information is defective unless every fact which is an element in a prima facie case of guilt is stated. The assumption of an element is not lawful. Otherwise, the accused will not be thoroughly informed. 26 USC 6012 is a necessary element of the offense. Since 6012 isn’t cited, the information is fatally defective. Additionally, the information did not negate the exception (other than required under authority of section 6015).” After reading 6012 and 6015, and knowing that the essential section 7203 elements are: A. Required to perform. B. Failed to perform. C. Failure was willful you may wish to ask, “how often is a valid Section 7203 indictment or other information or indictment brought? Very seldom. How many citizens have been convicted on a fatally defective process? Perhaps thousands, all with the knowing or willing participation of a federal judge. It is the judge’s job to assure that justice is accomplished. But the judge will almost always stop short of doing
his/her job and wait until the defense takes the important steps. The fact that most defense attorneys don’t know how to fight a case against the IRS doesn’t seem to matter to the judges. Nor does it seem to matter to the judge.
3. The acts of alleged offense must be described in non- prejudicial language and detail so as to enable a person of average intelligence to understand nature of charge (to enable preparation of defense); the actual act or acts constituting the offense complained of. The charge must not be described by parroting the statute; not by the language of same. The naming of the acts of the offense describe a specific offense whereas the verbiage of a statute describes only a general class of offense. Facts must be stated. Conclusions cannot be considered in the determination of probable cause.
4. The accuser must be named. He may be an officer or a third party. Some positively identifiable person (human being) must accuse. Some certain person must take responsibility for the making of the accusation, not an agency or an institution. This is the only valid means by which a citizen may begin to face his accuser. Also, the injured party (corpus delicti) must make the accusation. Hearsay evidence may not be provided. Anyone else testifying that he heard that another party was injured does not qualify as direct evidence.
5. The accusation must be made under penalty of perjury. If perjury cannot reach the accuser, there is no accusation. Otherwise, anyone may accuse another falsely without risk.
6. To comply with the five elements above, that is for the accusation to be valid, the accused must be accorded due process. Accuser must have complied with law, procedure and form in bringing the charge. This includes court-determined probable cause, summons and notice procedure. If lawful process may be abrogated in placing a citizen in jeopardy, then any means may be utilized to deprive a man of his freedom. All political dissent may be stifled by utilization of defective process.
7. The court must be one of competent jurisdiction. To have valid process, the tribunal must be a creature of its constitution, in accord with the law of its creation, i.e. (article III judge).Without the limiting factor of a court of competent jurisdiction, all citizens would be in jeopardy of loss of liberty being imposed at any bureaucrat’s whim. It is conceivable that the procedure could devolve to one in which the accuser, the trier of facts, and the executioner would all be one and the same.
The first six elements above deal primarily with the issue of personal jurisdiction. The seventh element (also element #2) addresses subject matter and territorial jurisdiction. Subject matter jurisdiction is conferred by acts controlled by law; territorial jurisdiction attaches by venue of the parties in relation to the court and to any trans- jurisdictional acts and/or activities of the parties (extended territorial jurisdiction is conferred by controversial long-arm statutes).
Lacking any of the seven elements or portions thereof, (unless waived, intentionally or unintentionally) all designed to ensure against further prosecution (double jeopardy); to inform court of facts alleged for determination of sufficiency to support conviction, should one be obtained. Otherwise, there is no lawful notice, and charge must be dismissed for failure to state an offense. Without lawful notice, there is no personal jurisdiction and all proceedings prior to filing of a proper trial document in compliance with the seven elements is void. A lawful act is always legal but many legal acts by government are often unlawful. Most bureaucrats lack elementary knowledge and incentive to comply with the mandates of constitutional due process. They will make mistakes. Numbers beyond count have been convicted without benefit of governmental adherence to these seven elements. Today, informations are being filed and prosecuted by “accepted practice” rather than due process of law.
See Corpus Juris Secundum (CJS), Volume 7, Section 4, Attorney & client: The attorney’s first duty is to the courts and the public, not to the client, and wherever the duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter. Clients are also called “wards” of the court in regard to their relationship with their attorneys. After you have read the foregoing, ask your attorney to see a copy of “regarding Lawyer Discipline & other rules” Also Canons 1 through 9.
Corpus Juris Secundum assumes courts will operate in a lawful manner. If the accused makes this assumption, he may learn, to his detriment, through experience, that certain questions of law, including the question of personal jurisdiction, may never be raised and addressed, especially when the accused is represented by the bar. (Sometimes licensed counsel appears to take on the characteristics of a fox guarding the hen house.)
Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered. Se McNutt v. GMAC, 298 US 178. The origins of this doctrine of law may be found in Maxfield’s Lessee v Levy, 4 US 308.
NOTE: Today the courts are unconcerned with questions such as whether or not the 16th or 17th amendments were ever lawfully ratified. If the courts were to address this type of question honestly, the government, with its huge bureaucracy and patron special interests would be placed in jeopardy. This potential threat is not allowed nor will it ever be. It is much easier for the courts to label such potential threats as political.