I was reading the Book of Sirachwhich seems for the most part to be the recounting of his conclusions drawn as a result of meditation in the

Torah inside of the former Glockengasse Synagogue in Cologne (Photo credit: Wikipedia)

Torah. The book almost read like Proverbs or Psalms. I came across this in chapter 38:

24 The wisdom of a learned man comes by opportunity of leisure: and he that has little business shall become wise. 25 How can he get wisdom that holds the plough, and that enjoys the goad, that drives oxen, and is occupied in their labors, and whose talk is of bullocks? 26 He gives his mind to make furrows; and is diligent to give the kine fodder. 27 So every carpenter and workmaster, that labors night and day: and they that cut and grave seals, and are diligent to make great variety, and give themselves to counterfeit imagery, and watch to finish a work: 28 The smith also sitting by the anvil, and considering the iron work, the vapor of the fire wastes his flesh, and he fights with the heat of the furnace: the noise of the hammer and the anvil is ever in his ears, and his eyes look still upon the pattern of the thing that he makes; he sets his mind to finish his work, and watches to polish it perfectly: 29 So does the potter sitting at his work, and turning the wheel about with his feet, who is always carefully set at his work, and makes all his work by number; 30 He fashions the clay with his arm, and bows down his strength before his feet; he applies himself to lead it over; and he is diligent to make clean the furnace: 31 All these trust to their hands: and everyone is wise in his work. 32 Without these cannot a city be inhabited: and they shall not dwell where they will, nor go up and down: 33 They shall not be sought for in public counsel, nor sit high in the congregation: they shall not sit on the judges’ seat, nor understand the sentence of judgment:they cannot declare justice and judgment;and they shall not be found where parables are spoken. 34 But they will maintain the state of the world, and all their desire is in the work of their craft.

I do not think maintaining the state of the world is a good thing. I think we want Jahushuwah’s kingdom to advance until it takes over the whole world. Jahushuwah said, “…occupy until I come.”

This passage in Sirach reminded me of what is recounted in Luke 10:

38 Now it came to pass, as they went, that He entered into a certain village; and a certain woman named Martha received Him into her house. 39 And she had a sister called Mary, who also sat at Jahushuwah’s feet and heard His Word. 40 But Martha was encumbered with much serving, and came to Him and said, “Lord, dost Thou not care that my sister hath left me to serve alone? Bid her therefore that she help me.” 41 And Jahushuwah answered and said unto her, “Martha, Martha, thou art anxious and troubled about many things. 42 But one thing is needful, and Mary hath chosen that good part, which shall not be taken away from her.“

This also reminded me of Matthew 20 which starts out by saying:

For the kingdom of heaven is like the owner of an estate who went out in the morning along with the dawn to hire workmen for his vineyard.

³ And going out about the third hour (nine o’clock), he saw others standing idle in the marketplace;

⁴ And he said to them, You go also into the vineyard, and whatever is right I will pay you. And they went.

⁵ He went out again about the sixth hour (noon), and the ninth hour (three o’clock) he did the same.

⁶ And about the eleventh hour (five o’clock) he went out and found still others standing around, and said to them, Why do you stand here idle all day?

⁷ They answered him, Because nobody has hired us. He told them, You go out into the vineyard also and you will get whatever is just and fair.

⁸ When evening came, the owner of the vineyard said to his manager, Call the workmen and pay them their wages, beginning with the last and ending with the first.

See who he hired? He hired those who were “idle”. So, if you want to:

• be sought for in public counsel
• sit high in the congregation
• sit on the judges’ seat
• understand the sentence of judgment
• declare justice and judgment
• be found where parables are spoken
• have the wisdom of a learned man
• be hired to work in Jahuwah’s vineyard and receive the wages accompanying that

it looks to me that you would be like Mary and idle yourself at Jahushuwah’s feet and choose the thing which cannot be taken from you.

If you would like a cleaned up copy of the Book of Sirach with all the pagan and old English words removed, send me an email at legalbear at legalbears.com and put “Sirach” in the subject line.

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As an alternative basis for standing to maintain this action, petitioner purports to proceed as “next friend of Ronald Gene Simmons.” Although we have never discussed the concept 162*162 of “next friend” standing at length, it has long been an accepted basis for jurisdiction in certain circumstances. Most frequently, “next friends” appear in court on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves. E. g., United States ex rel. Toth v. Quarles, 350 U. S. 11, 13, n. 3 (1955) (prisoner’s sister brought habeas corpus proceeding while he was being held in Korea). As early as the 17th century, the English Habeas Corpus Act of 1679 authorized complaints to be filed by “any one on . . . behalf” of detained persons, see 31 Car. II, ch. 2, and in 1704 the House of Lords resolved “[t]hat every Englishman, who is imprisoned by any authority whatsoever, has an undoubted right, by his agents, or friends, to apply for, and obtain a Writ of Habeas Corpus, in order to procure his liberty by due course of law.” See Ashby v. White, 14 How. St. Tr. 695, 814 (Q. B. 1704). Some early decisions in this country interpreted ambiguous provisions of the federal habeas corpus statute to allow “next friend” standing in connection with petitions for writs of habeas corpus, see, e. g., Collins v. Traeger, 27 F. 2d 842, 843 (CA9 1928); United States ex rel. Funaro v. Watchorn, 164 F. 152, 153 (SDNY 1908),^[3] and Congress eventually codified 163*163 the doctrine explicitly in 1948. See 28 U. S. C. § 2242 (1982 ed.) (“Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf“) (emphasis added).^[4]

A “next friend” does not himself become a party to the habeas corpus action in which he participates, but simply pursues the cause on behalf of the detained person, who remains the real party in interest. Morgan v. Potter, 157 U. S. 195, 198 (1895); Nash ex rel. Hashimoto v. MacArthur, 87 U. S. App. D. C. 268, 269-270, 184 F. 2d 606, 607-608 (1950), cert. denied, 342 U. S. 838 (1951). Most important for present purposes, “next friend” standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another. Decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for “next friend” standing. First, a “next friend” must provide an adequate explanation — such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action. Wilson v. Lane, 870 F. 2d 1250, 1253 (CA7 1989), cert. pending, No. 89-81; Smith ex rel. Missouri Public Defender Comm’n v. Armontrout, 812 F. 2d 1050, 1053 (CA8), cert. denied, 483 U. S. 1033 (1987); Weber v. Garza, 570 F. 2d 511, 513-514 (CA5 1978). Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, see, e. g., Morris v. United States, 399 F. Supp. 720, 722 (ED Va. 1975), and it has been further 164*164 suggested that a “next friend” must have some significant relationship with the real party in interest. Davis v. Austin, 492 F. Supp. 273, 275-276 (ND Ga. 1980) (minister and first cousin of prisoner denied “next friend” standing). The burden is on the “next friend” clearly to establish the propriety of his status and thereby justify the jurisdiction of the court. Smith, supra, at 1053; Groseclose ex rel. Harries v. Dutton, 594 F. Supp. 949, 952 (MD Tenn. 1984).

These limitations on the “next friend” doctrine are driven by the recognition that “[i]t was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves next friends.” United States ex rel. Bryant v. Houston, 273 F. 915, 916 (CA2 1921); see also Rosenberg v. United States, 346 U. S. 273, 291-292 (1953) (Jackson, J., concurring with five other Justices) (discountenancing practice of granting “next friend” standing to one who was a stranger to the detained persons and their case and whose intervention was unauthorized by the prisoners’ counsel). Indeed, if there were no restriction on “next friend” standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of “next friend.”

Whitmore, of course, does not seek a writ of habeas corpus on behalf of Simmons. He desires to intervene in a state-court proceeding to appeal Simmons’ conviction and death sentence. Under these circumstances, there is no federal statute authorizing the participation of “next friends.” The Supreme Court of Arkansas recognizes, apparently as a matter of common law, the availability of “next friend” standing in the Arkansas courts, see Franz v. State, 296 Ark., at 184, 754 S. W. 2d, at 840-841, but declined to grant it to Whitmore. Without deciding whether a “next friend” may ever invoke the jurisdiction of a federal court absent congressional authorization, we think the scope of any federal doctrine of “next friend” standing is no broader than what is 165*165 permitted by the habeas corpus statute, which codified the historical practice. And in keeping with the ancient tradition of the doctrine, we conclude that one necessary condition for “next friend” standing in federal court is a showing by the proposed “next friend” that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability. Whitmore v. Arkansas, 495 US 149, 161-165 – Supreme Court 1990

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I’m in a Colorado courtroom. The court is calling and processing cases. The prosecutor kept saying, almost by rote, ‘Judge, on this case we have evidence of prior bad acts under rule of evidence 404(b).’ She would then proceed to tell the judge what a bad person the defendant was and what prior bad acts they had on him. Apparently, the judge was supposed to consider this when imposing the sentence on a plea bargain. What the prosecutor didn’t know is that I was looking at this as a lesson in how to deal with government oppressors.

I saw a similar principle in a book I read on cross examination. Whatever evidence you can find that a witness has previously, at any time in life, deceived, lied, or acted fraudulently can be used to impeach a witness. You can see this principle in real life action in the OJ Simpson murder

O.J. Simpson's prior bad acts came out in detail in the books written about the trial and the wrongful death civil suit.

trial. The defense team got hold of a recording of Detective Furman calling black people “niggars”. F. Lee Bailey was the attorney selected to use those tapes to impeach Furman’s testimony. This is why good defense attorneys fight to get the disciplinary history of the police witnesses in a criminal case. They can use it to make the officials look like buffoons on the stand. This is why prosecutors fight hard to keep these records out. Until evidence of prior bad acts by the officers is obtained the officers look so sincere, honest, and respectable up there on the witness stand in their uniforms and badges.

Rule of evidence 404(b), as discussed below in a Colorado appellate decision, reads virtually the same in all states and is usually patterned after the Federal rule. Speaking of Federal; you might want to start making a contemporaneous record of IRS personnel’s prior bad acts; you might need those at some point!

Defendant asserts the trial court abused its discretion in admitting evidence of other transactions because such evidence was dependent upon an inference of defendant’s bad character. We are not persuaded.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity with that character. However, such evidence is admissible for other purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404(b).

In addition, evidence of prior acts is admissible if it: (1) relates to a material fact; (2) has a tendency to make the existence of the material fact more or less probable; (3) is relevant independent of the inference that the defendant has a bad character and acted in conformity with that character in committing the crime; and (4) has probative value that is not substantially outweighed by the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314 (Colo.1990).

A trial court has substantial discretion in determining the admissibility of prior acts evidence, and such determination will not be disturbed on appeal absent an abuse of such discretion. People v. Groves, 854 P.2d 1310 (Colo.App.1992).

Here, the trial court admitted the following evidence of prior acts of defendant. First, while in New York, a friend of defendant arranged for a woman real estate agent to show him a cabin. When the agent arrived at the cabin, defendant met her there, strangled her, and robbed her. Second, also while in New York, defendant made two phone calls to service providers and falsely identified himself. One call was to a massage therapist. Defendant falsely stated that he was a Vietnam war veteran and asked the woman to come to his home to give him a massage. The other call was to a baby sitter when he had no need for one. Both women declined defendant’s requests.

The court determined that this evidence was relevant to prove intent, identity, motive, preparation or plan, and modus operandi. The court also instructed the jury that the evidence was to be used solely for those purposes.

Although this evidence may have led to an inference of bad character, it had relevance independent of that inference. Thus, we agree with the trial court’s treatment of this evidence. People v. Cook, 22 P. 3d 947, 951-2 – Colo: Court of Appeals, 2nd Div. 2000

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[3] We now proceed to a consideration of the meaning of the term “jurisdiction” in its relation to the granting of a writ of prohibition. The term, used continuously in a variety of situations, has so many different meanings that no single statement can be entirely satisfactory as a definition. At best it is possible to give the principal illustrations of the situations in which it may be applied, and then to consider 288*288 whether the present case falls within one of the classifications.

Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. (See generally, 14 Am. Jur. 363, sec. 160.) Familiar to all lawyers are such examples as these: A state court has no jurisdiction to determine title to land located outside its territorial borders, for the subject matter is entirely beyond its authority or power. (See Taylor v. Taylor, 192 Cal. 71 [218 P. 756, 51 A.L.R. 1074].) A court has no jurisdiction to adjudicate upon the marital status of persons when neither is domiciled within the state. (See Restatement, Conflict of Laws, sec. 111; Ryder v. Ryder, 2 Cal.App.2d 426 [37 PaCal.2d 1069].) A court has no jurisdiction to render a personal judgment against one not personally served with process within its territorial borders, under the rule of Pennoyer v. Neff, 95 U.S. 714 [24 L.Ed. 565]. (See Doherty & Co. v. Goodman, 294 U.S. 623 [55 S.Ct. 553, 79 L.Ed. 1097], discussing modern exceptions to the rule.) A court has no jurisdiction to hear or determine a case where the type of proceeding or the amount in controversy is beyond the jurisdiction defined for that particular court by statute or constitutional provision. (See Cambra v. Justice’s Court, 4 Cal.2d 445 [49 PaCal.2d 1121].) Other examples of lack of jurisdiction in this fundamental sense will readily occur.

But in its ordinary usage the phrase “lack of jurisdiction” is not limited to these fundamental situations. For the purpose of determining the right to review by certiorari, restraint by prohibition, or dismissal of an action, a much broader meaning is recognized. Here it may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. Thus, a probate court, with jurisdiction of an estate, and therefore over the appointment of an administrator, nevertheless acts in excess of jurisdiction if it fails to follow the statutory provisions governing such appointment. (Texas Co. v. Bank of America, 5 Cal.2d 35, 39 [53 PaCal.2d 127].) The superior court may have jurisdiction over a cause of action 289*289 and the parties to a suit for libel, but in the case of non-residents, a bond for costs is required by statute, and unless such bond is filed, it is without jurisdiction to proceed, and will be restrained

When a court does not have jurisdiction it does not have authority to hear and decide. Jurisdiction can be lost in the course of the proceedings.

by writ of prohibition. (Shell Oil Co. v. Superior Court, 2 Cal.App.2d 348 [37 PaCal.2d 1078]; see, also, Carter v. Superior Court, 176 Cal. 752, 757 [169 P. 667].) A court with jurisdiction over a cause may hear and determine it and give judgment, but it cannot award costs in a situation not provided by statute. (Michel v. Williams, 13 Cal.App.2d 198 [56 PaCal.2d 546].) The superior court may have jurisdiction over a particular cause, but a disqualified judge may not sit and hear it if objection to his qualifications is raised, and prohibition will lie to prevent him from trying it. (Hall v. Superior Court, 198 Cal. 373, 387 [245 P. 814].) Where an injunction is sought against enforcement of a public statute, the court, despite its general equitable powers, has no jurisdiction to issue it. (Loftis v. Superior Court, 25 Cal.App.2d 346, 352 [77 PaCal.2d 491]; Reclamation Dist. v. Superior Court, 171 Cal. 672 [154 P. 845].) A court may have jurisdiction to grant a new trial after motion based upon proper statutory grounds, but has no jurisdiction to make the order unless the moving party has given his notice of intention within the prescribed statutory time. (See Peters v. Anderson, 113 Cal.App. 158 [298 P. 76].) The court has power under section 473 of the Code of Civil Procedure to set aside its judgment or order on motion where it was entered against a party through inadvertence, excusable neglect, or mistake; but that power is wholly lost at the end of the six months’ period prescribed by statute. (Estate of Hunter, 99 Cal.App. 191, 196 [278 P. 485].) An appellate court may have power to hear and determine a particular case on appeal, but is without jurisdiction to do so unless the procedural step of notice of appeal within the prescribed statutory time is taken. (Aregood v. Traeger, 94 Cal.App. 227 [270 P. 1002].) And if the notice is given before judgment is actually rendered, the premature appeal will be dismissed (Aspegren & Co. v. Sherman, Swan & Co., 199 Cal. 532 [250 P. 400]), or a lower appellate court may be prevented from hearing it by writ of prohibition. (Shriver v. Superior Court, 48 Cal.App. 576, 582 [192 P. 124].) After reversal of a judgment with directions to the lower court, it has jurisdiction to enter judgment, 290*290 but is limited by the directions of the appellate court and is without jurisdiction to permit amended pleadings to raise new issues; hence prohibition will lie to prevent it from retrying the case. (Lial v. Superior Court, 133 Cal.App. 31 [23 PaCal.2d 795].) The same is true where the superior court, in an appeal from a justice’s court on questions of law alone, attempts to try the cause de novo. (Sour v. Superior Court, 1 Cal.2d 542 [36 PaCal.2d 373].)

On a number of occasions the courts of this state have recognized the conflicting senses in which the term “jurisdiction” is used, and have emphasized the point that in applications for prohibition or certiorari, the broader meaning is involved. In our own recent decision, Rodman v. Superior Court, 13 Cal.2d 262 [89 PaCal.2d 109], we said: “… some confusion exists with reference to what constitutes an excess, and what constitutes an error, in the exercise of jurisdiction. However, it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess.” In Spreckels S. Co. v. Industrial Accident Com., 186 Cal. 256, 260 [199 P. 8, 9], where the commission made an award larger than the statute authorized and certiorari was sought, the court said: “The difficulty arises from the different shades of meaning which the word ‘jurisdiction’ has. As sometimes used, it means simply authority over the subject matter or question presented. In this sense the commission undoubtedly had jurisdiction in this case, and its award was not without jurisdiction on its part. But the word is frequently used as meaning authority to do the particular thing done, or, putting it conversely, a want of jurisdiction frequently means a want of authority to exercise in a particular manner a power which the board or tribunal has, the doing of something in excess of the authority possessed.” (See, also, Weintraub v. Superior Court, 91 Cal.App. 763, 769 [267 P. 733]; State v. Reynolds, 209 Mo. 161 [107 S.W. 487, 491, 123 Am.St.Rep. 468, 14 Ann. Cas. 198, 15 L.R.A. (N. S.) 963], reviewing authorities on prohibition and quoting from Appo v. People, 20 N.Y. 531: “… The writ lies to prevent the exercise of any unauthorized power in a case or proceeding of which 291*291 the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction.”)

[4] The foregoing observations, while by no means a complete description of the term, nevertheless serve as a warning against a too restricted meaning. The concept of jurisdiction embraces a large number of ideas of similar character, some fundamental to the nature of any judicial system, some derived from the requirement of due process, some determined by the constitutional or statutory structure of a particular court, and some based upon mere procedural rules originally devised for convenience and efficiency, and by precedent made mandatory and jurisdictional. Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari. And, as a practical matter, accuracy in definition is neither common nor necessary. Though confusion and uncertainty in statement are frequent, there is a surprising uniformity in the application of the doctrine by the courts, so that sound principles may be deduced from the established law by marshalling the cases and their holdings in this field. Abelleira v. District Court of Appeal, 17 Cal. 2d 280, 287-291 – Cal: Supreme Court 1941

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[5] Lack of jurisdiction in the District Court of Appeal to issue its writ of mandate is clearly established when the foregoing principles are considered in connection with a settled doctrine of administrative law. The Unemployment Insurance Act, summarized above, contains a complete administrative procedure, with provision for one original determination and two appeals, fulfilling every requisite of due process of law. Until that administrative procedure has been invoked and completed, there is nothing that the District Court of Appeal or any other court may review; it cannot interfere in the intermediate stages of the proceeding. The employers have no standing to ask for judicial relief because they have not yet exhausted the remedies given them by the statute. They still have their appeal to the commission, which appeal has not yet been decided adversely to them, and prior to the 292*292 prosecution of this appeal they have no right to demand an extraordinary writ from a court.

[6] This is the doctrine of “exhaustion of administrative remedies.” In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. The authorities to this effect are so numerous that only the more important ones need be cited here as illustrations. (See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 [58 S.Ct. 459, 82 L.Ed. 638] [National Labor Relations Board]; Prentis v. Atlantic Coast Line Co., 211 U.S. 210 [29 S.Ct. 67, 53 L.Ed. 150] [rate orders]; Porter v. Investors Syndicate, 286 U.S. 461, 468 [52 S.Ct. 617, 76 L.Ed. 1226] [investment commissioners and permit of investment company]; United States v. Sing Tuck, 194 U.S. 161 [24 S.Ct. 621, 48 L.Ed. 917] [immigration and the powers of the secretary of labor]; Gorham Mfg. Co. v. State Tax Com., 266 U.S. 265 [45 S.Ct. 80, 69 L.Ed. 279] [tax board]; Red River Broadcasting Co. v. Federal Communications Com., 98 Fed.2d 282, 284 [69 App. D. C. 1]; Western Powder Mfg. Co. v. Interstate Coal Co., 5 Fed. Supp. 619, 621; Hegeman Farms Corp. v. Baldwin, 293 U.S. 163, 172 [55 S.Ct. 7, 79 L.Ed. 259] [liquor control board]; United States Nav. Co. v. Cunard S. S. Co.. 284 U.S. 474 [52 S.Ct. 247, 76 L.Ed. 408] [shipping board]; De Pauw University v. Brunk, 53 Fed.2d 647, 652; Palermo L. & W. Co. v. Railroad Com., 227 Fed. 708; Hammerstrom v. Toy Nat. Bank, 81 Fed.2d 628 [tax board]; American Bond etc. Co. v. United States, 52 Fed.2d 318; Monocacy Broadcasting Co. v. Prall, 90 Fed.2d 421 [67 App. D. C. 176]; Federal Trade Com. v. Claire Furnace Co., 274 U.S. 160, 174 [47 S.Ct. 553, 71 L.Ed. 978]; St. Clair Borough v. Tamaqua etc. Ry. Co., 259 Pa. 462 [103 Atl. 287, 289, 5 A.L.R. 20]; Corstvet v. Bank of Deerfield, 220 Wis. 209 [263 N.W. 687, 697]; Earl Carroll Realty Corp. v. New York Edison Co., 141 Misc. 266 [252 N.Y. Supp. 538, 543]; 48 Yale L. J. 981; 51 Harv. L. Rev. 1251; 35 Col. L. Rev. 230; 12 N.Y. Univ. L. Q. Rev. 393; 28 Mich. L. Rev. 637; 28 Cal. L. Rev. 129, 151, 154, 162.) The California cases have consistently applied this settled rule. (See Teeter v. Los Angeles, 209 Cal. 685 [290 P. 11]; Collier & Wallis v. Astor, 9 Cal.2d 202 [70 PaCal.2d 171]; San Joaquin 293*293 etc. Co. v. Stanislaus, 155 Cal. 21, 27 [99 P. 365]; Dawson v. Los Angeles, 15 Cal.2d 77 [98 PaCal.2d 495].)

The rule itself is settled with scarcely any conflict. It is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts. We are here asked to sanction its violation, either on the ground that a valid exception to the rule is applicable, or that despite the uniformity with which the rule has been applied, it may be disregarded by lower tribunals without fear of prevention by the higher courts. This last point cannot be too strongly emphasized, for the rule will disappear unless this court is prepared to enforce it. To review such action of a lower court only on appeal or petition for hearing would permit interference with the administrative proceeding pending the appeal or hearing, with the effect of completely destroying the effectiveness of the administrative body. The writ of prohibition can alone operate surely and swiftly enough to prevent this unfortunate result; and only if we recognize that the rule is jurisdictional will it be uniformly enforced. Bearing in mind the analysis of jurisdiction which has heretofore been made, and examining the authorities dealing with the rule, we are necessarily led to the conclusion that exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts. Abelleira v. District Court of Appeal, 17 Cal. 2d 280, 291-293 – Cal: Supreme Court 1941

Here’s your challenge, should you decide to accept it.  Can you find the equivalent authority in your state?

Also, can you tell me where I got the head/tail reference in the subject line?

16-2.5-137 Colorado Revised Statutes (C.R.S.). Adult probation officer  An adult probation officer is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to part 2 of article 11 of this title. 16-11-208. Officer’s appointment – salary – oath (1) Probation officers shall be appointed pursuant to the provisions of section 13-3-105, C.R.S., and shall not be removed except for cause. (2) Before entering upon the duties of his office, each probation officer shall take an oath of office as an officer of the court, as prescribed by law. 16-11-209. Duties of probation officers (1) It is the duty of a probation officer to investigate and report upon any case referred to him by the court for investigation. The probation officer shall furnish to each person released on probation under his supervision a written statement of the conditions of probation and shall instruct him regarding the same. The officer shall keep informed concerning the conduct and condition of each person on probation under his supervision and shall report thereon to the court at such times as it directs. Such officers shall use all suitable methods, not inconsistent with the conditions imposed by the court, to aid persons on probation and to bring about improvement in their conduct and condition. Each officer shall keep records of his work; shall keep accurate and complete accounts of all moneys collected from persons under his supervision; shall give receipts therefor and shall make at least monthly returns thereof into the registry of the court or as he may be ordered; shall make such reports to the court as are required; and shall perform such other duties as the court may direct. § 18-8-115, C.R.S. (1986 Repl.Vol. 8B): It is the duty of every corporation or person who has reasonable grounds to believe that a crime has been committed to report promptly the suspected crime to law enforcement authorities ….   18-8-404 C.R.S.  First degree official misconduct. (1)  A public servant commits  first degree official misconduct if, with intent to obtain a benefit for  himself or maliciously to cause harm to another, he knowingly: (a)  Commits an act relating to his office but constituting an unauthorized exercise of his official function; or (b)  Refrains from performing a duty imposed upon him by law; or (c)  Violates any statute or lawfully adopted rule or regulation relating to his office. (2)  First degree official misconduct is a class 2 misdemeanor. “Characteristically the Court has defined these elements by identifying the circumstances in which qualified immunity would not be available. Referring both to the objective and subjective elements, we have held that qualified immunity would be defeated if an official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury . . . .” Harlow v. Fitzgerald, 457 US 800, 815 – Supreme Court 1982. “We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 US 800, 815, 818 – Supreme Court 1982. “Malice, in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse.” `Malice,’ in law, simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts. Tinker v. Colwell, 193 US 473, 485-7 – Supreme Court 1904 Article 12 Section 4 Colorado Constitution.  Disqualifications from holding office of trust or profit. No person hereafter convicted of embezzlement of public moneys, bribery, perjury, solicitation of bribery, or subornation of perjury, shall be eligible to the general assembly, or capable of holding any office of trust or profit in this state. Article 12 Section 8.  Colorado Constitution.  Oath of civil officers. Every civil officer, except members of the general assembly and such inferior officers as may be by law exempted, shall, before he enters upon the duties of his office, take and subscribe an oath or affirmation to support the constitution of the United States and of the state of Colorado, and to faithfully perform the duties of the office upon which he shall be about to enter. 24-12-106 C.R.S. False swearing or affirming, perjury. Government official swearing a solemn oath to uphold the constitutions. All oaths and affirmations, affidavits, and depositions administered or taken shall subject any person who swears or affirms falsely and willfully, in the matter material to any issue or point in question, to the penalties inflicted by law on persons guilty of perjury in the first degree. Cotting v. Kansas City Stock Yards Co., 183 US 79, 84 (1901) addresses arbitrary power: “It has been wisely and aptly said that this is a government of laws and not of men; that there is no arbitrary power located in any individual or body of individuals; but that all in authority are guided and limited by those provisions which the people have, through the organic law, declared shall be the measure and scope of all control exercised over them.” Id. @ 84. [emphasis mine] 18-17-103 C.R.S. Definitions (5) “Racketeering activity” means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit: The governments acting like mafia, so, these sections are highly appropriate. (b) Any violation of the following provisions of the Colorado statutes or any criminal act committed in any jurisdiction of the United States which, if committed in this state, would be a crime under the following provisions of the Colorado statutes: (I) Offenses against the person, as defined in sections 18-3-102 (first degree murder), 18-3-103 (second degree murder), 18-3-104 (manslaughter), 18-3-202 (first degree assault), 18-3-203 (second degree assault), 18-3-204 (third degree assault), 18-3-206 (menacing), 18-3-207 (criminal extortion), 18-3-301 (first degree kidnapping), 18-3-302 (second degree kidnapping), 18-3-501 (trafficking in adults), 18-3-502 (trafficking in children), and 18-3-503 (coercion of involuntary servitude); (VII) Offenses involving governmental operations, as defined in sections 18-8-302 (bribery), 18-8-303 (compensation for past official behavior), 18-8-306 (attempt to influence a public servant), 18-8-402 (misuse of official information), 18-8-502 (first degree perjury), 18-8-503 (second degree perjury), 18-8-603 (bribe-receiving by a witness), 18-8-606 (bribing a juror), 18-8-608 (intimidating a juror), 18-8-609 (jury-tampering), 18-8-610 (tampering with physical evidence), 18-8-703 (bribing a witness or victim), 18-8-704 (intimidating a witness or victim), and 18-8-707 (tampering with a witness or victim);

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GOING ON THE OFFENSIVE

AGAINST THE IRS

TOMMY CRYER RECOMMENDED IT BEFORE HE DIED

AND SO DO I!!

Someone forwarded this email to Tommy Cryer and he commented on it the night before he died. His comments are at the bottom.

After § 7433 Suit Filed, IRS Attitude Changes for the Better:

I’m kind of excited. I just got word of what appeared to be a total change of heart by the IRS after receiving a final notice of intent to sue followed by the actual filing of a suit under 26 U.S.C. § 7433.

The IRS had made this couple promises and was not keeping them. When the couple started taking the IRS to task for not keeping the promises they gave them still more runaround. This is such a typical story that I hear all the time.

The couple had already sent a notice of intent to sue based on § 7433. But, when the couple sent a final warning that they intended to file suit and then actually did file the suit, the IRS had change of heart and became kinder and more gentle. They began to leave polite messages on the voice mail and seemed to become very sincere about correcting the errors. It appeared that they were concerned that their actions had resulted in the suit being filed and inquired about the status of the suit.

Beneficial Features of Section 7433:

As you may recall, 26 U.S.C. § 7433(a) provides:

If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer^[1] may bring a civil action for damages against the United States in a district court of the United States.

But, subsection (d) provides limitations:

(1) A judgment for damages shall not be awarded under subsection (b) unless the court determines that the plaintiff has exhausted the administrative remedies…

As some of you know, I’ve been a proponent of using the exhaustion requirement to our advantage. 26 CFR 301.7433-1(e) provides:

An administrative claim…shall be sent in writing to the Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides.

Administrative Claim Letter Success:

Letters sent in compliance with this provision have met with some success.

In all, I am aware of seven instances where levees were released after one of these letters was sent.

I had always said that there was a possibility that somebody would get a check as a result of these letters. A while back that actually happened. Somebody combined my lien and levy research in their letter and got a check back for over $6000 of wrongfully levied funds from the IRS.

Government Does Not Want More Litigation:

I recently got some additional insight as to the distastefulness of litigation to the government when I read the book The Price of Loyalty by Ron Suskind, Simon & Schuster Paperbacks, 2004. The book is about Paul O’Neill’s 1.5 year stint as Secretary of the Treasury. He was trying to make some changes in the ways that executives of corporations were treated. The results will become self-evident as you read:

On page 225:

Shifting the standard to negligence is a huge problem, the SEC chairman said. We just can’t go there. There’s no doubt that we have to prevent gaming the system. But we need a high standard, otherwise we’ll be overwhelmed with litigation.

On page 230:

Three days later, a story ran in the Wall Street Journal about O’Neill’s position on corporate governance and his desire to lift the standard from recklessness to simple negligence. It mentioned that Pitt and Hubbard were against the new standard, “concerned that no matter how it was crafted it will lead to more lawsuits.”

At page 233:

Many of the CEOs seemed to have consulted already with their chief counsels. The one thing they didn’t want was

Cover of The Price of Loyalty

even the slightest uptick in litigation.

At page 239:

The move from recklessness to negligence was dropped for fear it would invite a wave of lawsuits. O’Neill and Greenspan were discouraged. A single issue for the corporate crowd—fear of lawsuits—carried the day, O’Neill said, his outrage boiling over.

So, big corporations and big government, with all of their attorneys and resources, as I suspected, do not want more litigation. An administrative claim for damages, or notice of intent to sue, gives us an opportunity to take advantage of the government’s distaste for litigation.

Success after the Suit has been Filed:

There have been reports of no results from administrative claim letters, but, after hearing about the results described in the first paragraph of this e-mail, it got me to thinking about the results I found in the case law after the suit was filed; for example:

1) Mrs. Shaw received a refund of all the money collected, and the remaining tax liability was abated.  Shaw v. U.S., Fifth Circuit.

2) After filing one of these suits, the government dismissed the criminal action against the 7433 plaintiff.  Fishburn v. Brown, Sixth Circuit, 1997.

3) After filing one of these suits, the IRS returned a seized Cadillac.  Washington v. U.S., Ninth Circuit, 1992.  FE

4) After filing one of these suits, the plaintiff’s tax liability “was resolved in the plaintiff’s favor in tax court.  Templeman v. U.S., First Circuit, 1994.

5) After filing one of these suits, an injunction restricting state court filings was vacated.  Templeman v. U.S., First Circuit, 1994.

6) After filing one of these suits, improperly levied funds were returned.  Raymond v. U.S., Sixth Circuit, 1993.

7) After filing one of these suits, the government conceded that an assessment was erroneous and released its liens.  Miller v. U.S. (N.D. Cal. 1992).

8) The government provided the forms during the litigation that they had previously refused to. Ball v. U.S., No. 94-2125 (7th Cir. 1995).

It Is Possible to Win Damages off a Section 7433 Suit:

Let’s not forget the 5th Circuit case Gandy Nursery v. U.S. where $388,500 in damages were awarded and $317,738.50 in costs and attorney’s fees; plus, post-judgment interest on the $16,800.

Some Suggestions for Those Dealing With IRS:

If you already sent your claim letter:

26 CFR 301.7433-1(d) provides that, “…no action under paragraph (a) of this section shall be maintained in any federal district court before the earlier of the following dates: (i) The date the decision is rendered on a claim filed in accordance with paragraph (e) of this section; or (ii) The date six months after the date an administrative claim is filed…”

If you had a decision on your administrative claim letter, you can go ahead and file your suit, or, you can do like the couple in the first paragraph and send them a warning letter.

If you send an administrative claim letter and less than six months has passed you may want to send a warning letter telling them that the six month deadline is approaching; and that they may want to take action.

If you send an administrative claim letter and more than six months has passed you have the option of sending the warning letter or filing suit.

If you have one of my packages, but have not sent a section 7433 letter:

You may want to go into my package and locate the file 26USC7433. If you need to search your hard drive you should quickly find the file if you search for exactly this: 26USC7433. Once you locate it you should review the notes files and the sample letters. You should also review the statute and the regulation which are here: http://www.law.cornell.edu/uscode/text/26/7433

and here: http://www.law.cornell.edu/cfr/text/26/301.7433-1

I’m sure these have changed since you bought my package. Locate some statutes and regulations that the IRS violated and you will be ready to put together your letter. I am available to review letters; if you would like that please call me: 720 -675 -7230 9:00 AM to 8:30 PM MST.

If you do not have one of my packages, but think it would benefit you to send an administrative claim letter:

My research packages amount to what I call a “shortcut to competence”. If you follow the statute and the regulation there is somebody on the other end that is going to be reading your letter. Because of this, you want your letter to display a certain degree of competence. It must appear in your letter that you’ve done your homework. A competent letter is the shortest route to success; and may save you from having to file suit. If you go to my shopping cart here:

http://www.legalbears.com/armor/index.php?main_page=product_info&cPath=4&products_id=47

You’ll see you will see THE BIGGEST PACKAGE! THE BIGGEST SAVINGS! This package includes Lien & Levy Thumper-IRS Terminator for CDPH-All Angles Offensive MP3’s-Frivolous Return Penalties Research-Bear’s Online Legal Research Video & Golden FOIAs. This package is normally $577. For the next 13 days (July 31) when you enter CryerMemorial during the checkout process you will save $200 and be able to get the package for just $377. That’s a $1213 savings over what you would pay for these packages separately!

I’m convinced that filing one of these letters, sending a warning letter, and filing suit is one of the quickest and most effective ways of getting some respect from the IRS.

Knowing what your rights are is the first step to getting them:

When the IRS violates our due process rights, most people feel bad. The bad feeling is what tells you that your rights have been violated. However, the bad feeling should only be the trigger that sets in motion a search for the authority, usually from the Supreme Court, establishing the right and explaining it. Understanding this concept is what set me on a search for Supreme Court decisions explaining due process rights. I copied and pasted 34 pages of due process quotes from the Supreme Court with the citations to the cases and quotes and put them here:

http://www.legalbears.com/armor/index.php?main_page=product_info&cPath=4&products_id=49

If the IRS agent fails to give you all your constitutional rights he could lose his job. I made a video about this and you can view it at the link above. I call this package HOW TO HOLD IRS CONSTITUTIONAL VIOLATIONS over THEIR HEAD. This is a tremendous lever to use against IRS personnel, the threat of the loss of their job. Normally I sell this package for $200. Through July 31, when you enter CryerMemorial in the coupon code blank on check out you will save $100 and be able to buy these quotes for $100; a 50% savings!

NOTE: If you would like to get both of these packages you must make separate purchases because the shopping cart will only accept one discount code at a time.

SWEETENING THE POT:

42 USC § 1983 RESEARCH

Since I first started researching how to inflict some pain on the system for IRS law violations 42 USC § 1983 has been amended. It used to only apply to the several states but, the new amendment now makes suits for civil rights violations applicable in Washington D.C., the very seat of the federal government and home of the IRS. Furthermore, the statute has always applied to state actors working in a state tax agency that violate your rights. For everyone who takes advantage of BOTH of the above offers [The Biggest Package and Due Process Quotes] I will send you, in a zip file, 901 paragraphs of research I’ve done on how to do a § 1983 suit as an attachment in the email for NO ADDITIONAL CHARGE!! That will give you a nice head start on how to do a § 1983 suit.

I hope this email has been some help to you and given you some hope. Bear

CRYER EMAIL:

[From my buddy Tim who retained Tommy to defend against the IRS]:

“Thought you might like to see this.”
“——– Original Message ——–

“Tim,

“I know Barry and he’s a serious researcher and dedicated patriot.  He’s onto something here that I’ve been advocating for a long, long time.  We cannot win by letting the enemy choose all the battles.  We have to pick our own battlefields and our own cases.  And we can’t gain ground defending.  We have to go on the offense.

 

“Lawsuits such as 7433′s and 7431′s, as well, can go a long way toward, just as Barry puts it, “giving them an attitude adjustment”.”

Call me at: 720-675-7230

On Skype: legalbear

Best times to call: 8:30 am to 9:00 pm MST

Join my Yahoo Group Tips & Tricks for Court by sending an email to:

tips_and_tricks-subscribe@yahoogroups.com

My blog: legalbearsblog.com

Tax sites: IRSTerminator.com IRSLienThumper.com IRSLevyThumper.com

(formatted like this so this email doesn’t end up in your spam folder)

Related articles

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  ---

After § 7433 Suit Filed, IRS Attitude Changes for the Better:

I’m kind of excited. I just got word of what appeared to be a total change of heart by the IRS after receiving a final notice of intent to sue followed by the actual filing of a suit under 26 U.S.C. § 7433.

The IRS had made this couple promises and was not keeping them. When the couple started taking the IRS to task for not keeping the promises they gave them still more runaround. This is such a typical story that I hear all the time.

The couple had already sent a notice of intent to sue based on § 7433. But, when the couple sent a final warning that they intended to file suit and then actually did file the suit, the IRS had change of heart and became kinder and more gentle. They began to leave polite messages on the voice mail and seemed to become very sincere about correcting the errors. It appeared that they were concerned that their actions had resulted in the suit being filed and inquired about the status of the suit.

Beneficial Features of Section 7433:

As you may recall, 26 U.S.C. § 7433(a) provides:

If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer[1] may bring a civil action for damages against the United States in a district court of the United States.

But, subsection (d) provides limitations:

(1) A judgment for damages shall not be awarded under subsection (b) unless the court determines that the plaintiff has exhausted the administrative remedies…

As some of you know, I’ve been a proponent of using the exhaustion requirement to our advantage. 26 CFR 301.7433-1(e) provides:

An administrative claim…shall be sent in writing to the Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides.

Administrative Claim Letter Success:

Letters sent in compliance with this provision have met with some success.

In all, I am aware of seven instances where levees were released after one of these letters was sent.

I had always said that there was a possibility that somebody would get a check as a result of these letters. A while back that actually happened. Somebody combined my lien and levy research in their letter and got a check back for over $6000 of wrongfully levied funds from the IRS.

Government Does Not Want More Litigation:

I recently got some additional insight as to the distastefulness of litigation to the government when I read the book The Price of Loyalty by Ron

Government doesn't want lawsuits!

Suskind, Simon & Schuster Paperbacks, 2004. The book is about Paul O’Neill’s 1.5 year stint as Secretary of the Treasury. He was trying to make some changes in the ways that executives of corporations were treated. The results will become self-evident as you read:

On page 225:

Shifting the standard to negligence is a huge problem, the SEC chairman said. We just can’t go there. There’s no doubt that we have to prevent gaming the system. But we need a high standard, otherwise we’ll be overwhelmed with litigation.

On page 230:

Three days later, a story ran in the Wall Street Journal about O’Neill’s position on corporate governance and his desire to lift the standard from recklessness to simple negligence. It mentioned that Pitt and Hubbard were against the new standard, “concerned that no matter how it was crafted it will lead to more lawsuits.”

At page 233:

Many of the CEOs seemed to have consulted already with their chief counsels. The one thing they didn’t want was even the slightest uptick in litigation.

At page 239:

The move from recklessness to negligence was dropped for fear it would invite a wave of lawsuits. O’Neill and Greenspan were discouraged. A single issue for the corporate crowd—fear of lawsuits—carried the day, O’Neill said, his outrage boiling over.

So, big corporations and big government, with all of their attorneys and resources, as I suspected, do not want more litigation. An administrative claim for damages, or notice of intent to sue, gives us an opportunity to take advantage of the government’s distaste for litigation.

 Success after the Suit has been Filed:

There have been reports of no results from administrative claim letters, but, after hearing about the results described in the first paragraph of this e-mail, it got me to thinking about the results I found in the case law after the suit was filed; for example:

 1) Mrs. Shaw received a refund of all the money collected, and the remaining tax liability was abated.  Shaw v. U.S., Fifth Circuit.

2) After filing one of these suits, the government dismissed the criminal action against the 7433 plaintiff.  Fishburn v. Brown, Sixth Circuit, 1997.

3) After filing one of these suits, the IRS returned a seized Cadillac.  Washington v. U.S., Ninth Circuit, 1992.  FE

4) After filing one of these suits, the plaintiff’s tax liability “was resolved in the plaintiff’s favor in tax court.  Templeman v. U.S., First Circuit, 1994.

5) After filing one of these suits, an injunction restricting state court filings was vacated.  Templeman v. U.S., First Circuit, 1994.

6) After filing one of these suits, improperly levied funds were returned.  Raymond v. U.S., Sixth Circuit, 1993.

7) After filing one of these suits, the government conceded that an assessment was erroneous and released its liens.  Miller v. U.S. (N.D. Cal. 1992).

8.) The government provided the forms during the litigation that they had previously refused to. Ball v. U.S., No. 94-2125 (7th Cir. 1995).

 It Is Possible to Win Damages off a Section 7433 Suit:

Let’s not forget the 5th Circuit case Gandy Nursery v. U.S. where $388,500 in damages were awarded and $317,738.50 in costs and attorney’s fees; plus, post-judgment interest on the $16,800.

Some Suggestions for Those Dealing With IRS:

If you already sent your claim letter:

 26 CFR 301.7433-1(d) provides that, “…no action under paragraph (a) of this section shall be maintained in any federal district court before the earlier of the following dates: (i) The date the decision is rendered on a claim filed in accordance with paragraph (e) of this section; or (ii) The date six months after the date an administrative claim is filed…”

If you had a decision on your administrative claim letter, you can go ahead and file your suit, or, you can do like the couple in the first paragraph and send them a warning letter. I am available to review complaints; if you would like that please call me: 720 -675 -7230 9:00 AM to 8:30 PM MST.

If you send an administrative claim letter and less than six months has passed you may want to send a warning letter telling them that the six month deadline is approaching; and that they may want to take action.

If you send an administrative claim letter and more than six months has passed you have the option of sending the warning letter or filing suit.

If you have one of my packages, but have not sent a section 7433 letter:

You may want to go into my package and locate the file 26USC7433. If you need to search your hard drive you should quickly find the file if you search for exactly this: 26USC7433. Once you locate it you should review the notes files and the sample letters. You should also review the statute and the regulation which are here: http://www.law.cornell.edu/uscode/text/26/7433

and here: http://www.law.cornell.edu/cfr/text/26/301.7433-1

I’m sure these have changed since you bought my package. Locate some statutes and regulations that the IRS violated and you will be ready to put together your letter. I am available to review letters; if you would like that please call me: 720 -675 -7230 9:00 AM to 8:30 PM MST.

If you do not have one of my packages, but think it would benefit you to send an administrative claim letter:

My research packages amount to what I call a “shortcut to competence”. If you follow the statute and the regulation there is somebody on the other end that is going to be reading your letter. Because of this, you want your letter to display a certain degree of competence. It must appear in your letter that you’ve done your homework. A competent letter is the shortest route to success; and may save you from having to file suit. If you go to my shopping cart here:

http://www.legalbears.com/armor/index.php?main_page=product_info&cPath=4&products_id=47

You’ll see you will see THE BIGGEST PACKAGE! THE BIGGEST SAVINGS! This package includes Lien & Levy Thumper-IRS Terminator for CDPH-All Angles Offensive MP3’s-Frivolous Return Penalties Research-Bear’s Online Legal Research Video & Golden FOIAs. This package is normally $577. For the next 10 days (June 13) when you enter IRSAttitudeAdjustment during the checkout process you will save $200 and be able to get the package for just $377. That’s a $1213 savings over what you would pay for these packages separately!

I’m convinced that filing one of these letters, sending a warning letter, and filing suit is one of the quickest and most effective ways of getting some respect from the IRS.

Knowing what your rights are is the first step to getting them:

When the IRS violates our due process rights, most people feel bad. The bad feeling is what tells you that your rights have been violated. However, the bad feeling should only be the trigger that sets in motion a search for the authority, usually from the Supreme Court, establishing the right and explaining it. Understanding this concept is what set me on a search for Supreme Court decisions explaining due process rights. I copied and pasted 34 pages of due process quotes from the Supreme Court with the citations to the cases and quotes and put them here:

http://www.legalbears.com/armor/index.php?main_page=product_info&cPath=4&products_id=49

If the IRS agent fails to give you all your constitutional rights he could lose his job. I made a video about this and you can view it at the link above. I call this package HOW TO HOLD IRS CONSTITUTIONAL VIOLATIONS over THEIR HEAD. This is a tremendous lever to use against IRS personnel, the threat of the loss of their job. Normally I sell this package for $200. Through June 13^th, when you enter DueProcessViolations in the coupon code blank on check out you will save $100 and be able to buy these quotes for $100; a 50% savings!

NOTE: If you would like to get both of these packages you must make separate purchases because the shopping cart will only accept one discount code at a time.

I hope this email has been some help to you and given you some hope. Bear

During my trial I found this:

“It follows that a collateral attack may be made here for “acts or orders [of administrative officers or agencies] which do not come clearly within the powers granted or which fall beyond the purview of the statute granting the agency or body its powers [such orders] are not merely erroneous, but are void.” * * * “They [officers or agencies] are without power to act contrary to the provisions of the law or the clear legislative intendment, or to exceed the authority conferred on them by statute.” 73 C.J.S. Public Administrative Bodies and Procedure § 59, pp. 383-384. And see, Liebhardt v. Tasher, 132 Colo. 554, 290 P.2d 1107.” [emphasis mine] Flavell v. Department Of Welfare, 355 P.2d 941, 943 (Colo. 1960).

If only some authority could be located saying this same thing to federal administrative agencies?? Agencies like the IRS. Yeah, yeah, I know

Naughty IRS: Destroying Due Process Rights in Due Process Hearings!

they are not an agency. I also know that some have contended IRS has never been established by law. Fact of the matter: everyone treats them like they are legitimate in the system. I went looking and found this little gem:

In the comparatively few cases in which such questions have arisen it has been distinctly recognized that administrative orders, quasi-judicial in character, are void if a hearing was denied; if that granted was inadequate or manifestly unfair; if the finding was contrary to the “indisputable character of the evidence.” Tang Tun v. Edsell, 223 U.S. 673, 681; Chin Yoh v. United States, 208 U.S. 8, 13; Low Wah Suey v. Backus, 225 U.S. 460, 468; Zakonaite v. Wolf, 226 U.S. 272; or, if the facts found do not, as a matter of law, support the order made. United States v. B. & O.S.W.R.R., 226 U.S. 14. Cf. Atlantic C.L. v. North Carolina Corp. Com., 206 U.S. 1, 20; Wisconsin, M. & P.R. Co. v. Jacobson, 179 U.S. 287, 301; 92#####92 Oregon Railroad v. Fairchild, 224 U.S. 510; I.C.C. v. Illinois Central, 215 U.S. 452, 470; Southern Pacific Co. v. Interstate Com. Comm., 219 U.S. 433; Muser v. Magone, 155 U.S. 240, 247. That quote is from Interstate Commerce Commission v. Louisville and Nashville Railroad Company, 227 U.S. 88, 91-2 (1913).

To me, this sounds like every single Collection Due Process Hearing the IRS ever held has been void for denial of due process. One of the reasons the IRS denies due process in Collection Due Process…they’re in a rush to move forward to levy. Look what the Court said about those who aid in the enforcement of a void order from Elliott v. Lessee of Piersol, 26 US 328, 340:

“Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. BUT, IF IT ACT WITHOUT AUTHORITY, ITS JUDGMENTS AND ORDERS ARE REGARDED AS NULLITIES. THEY ARE NOT VOIDABLE, BUT SIMPLY VOID; and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; and ALL PERSONS CONCERNED IN EXECUTING SUCH JUDGMENTS OR SENTENCES, ARE CONSIDERED, IN LAW, AS TRESPASSERS.” (emphasis added)

To me, that means that ALL IRS personnel who move forward on a levy based upon a void final determination issuing from a Collection Due Process Hearing are also trespassers.

I pasted this together from posts to my new Facebook page IRS Fight Club:

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• Urgent: Obama nullifies Bill of Rights, declares all of America a military battleground (zionistoutrage.com)
• Prison Planet.com ” Indefinite Detention: Political Washington Abolishes Due Process Protections (gunnyg.wordpress.com)

While I was perusing the Internal Revenue Manual I came across this little gem respecting the IRS and application of the Fair Debt Collection Practices Act:

1.4.53.5.1  (08-20-2010)
Fair Debt Collection Practices

1. IRC Section 6304, Fair Tax Collection Practices,

Here’s a statute, related to the collection of taxes, that you could sue them for a violation of under 26 U.S.C. § 7433 after giving them an administrative opportunity to correct as discussed in my Calling Off the Dogs/Levy Thumper package. A violation of this statute would make excellent fodder for you administrative claim letter which has already obtained some positive results without going to court.

Section 1.4.53.5.1 of the Manual continues:

imposes certain restrictions with respect to tax collection. During a case review or upon receiving a complaint from a taxpayer, you may identify a potential violation of those restrictions. Potential employee violations of the Fair Debt Collection Practices Act (FDCPA) (see IRM 5.1.10.2, Fair Tax Collection Practices) must be reported to the local Labor Relations Specialist by the close of the next business day following notification of the alleged violation.

Section 5.1.10.2  (10-28-2011) of the Manual provides more fuel for the fire:

Fair Tax Collection Practices

IRC 6304 imposes certain restrictions with respect to IRS communications with taxpayers regarding unpaid tax. This provision specifically prohibits the IRS from harassing or abusing taxpayers.

This law applies to communications with all taxpayers, including business entities.

Violations of IRC 6304 could subject the United States to civil action (IRC 7433) by the taxpayer. Violations of IRC 6304 could also subject Service employees to termination for misconduct.

Ha! Here it is in the manual what I have been saying all along. I have to think that IRS employees hope you don’t know about this. As long as you don’t…their jobs are safe!