Challenge Jurisdiction

In the struggle to obtain our due process rights through the Administrative Procedure of
the IRS, the ultimate goal is to challenge the jurisdiction of the government to assess or
collect the tax. Their jurisdiction derives from our citizenship and residency status as we
talked about in Chapter 4 plus and any subject matter jurisdiction they might have in our
specific case. Their jurisdiction also derives from them calling us a “taxpayer” rather
than being forced to prove that we are, as we pointed out in sections 2.8.2, 3.11.1.20, and
5.6.5.

In any judicial proceeding, the moving party has the burden of proof of demonstrating
that the court has subject matter jurisdiction over the matters and parties before it. See
the following authorities:

• Scott v. Sandford, 60 U.S. 393 (1856)

• Security Trust Co. v. Black River National Bank, 187 U.S. 211 (2002)
• McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)
• Hague v. Committee for Industrial Organization Et. Al., 307 U.S. 496 (59 S.Ct.
954, 83 L.Ed. 1423 (1939)
• United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 36454 L.Ed. 2d
376 (1977)
• Chapman v. Houston Welfare Rights Organization Et. Al., 441 U.S. 600, 99 S.Ct.
1905, 60 L.Ed. 2d 508 (1979)
• Cannon v. University Chicago Et. Al., 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed. 2d
560 (1979)
• Patsy v. Board Regents State Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d
172 (1982)
• Merrill Lynch v. Curran Et Al., 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182, 50
U.S.L.W. 4457 (1982)
• Insurance Corporation Ireland v. Compagnie Des Bauxites De Guinee, 456 U.S.
694, 102 S.Ct. 2099, 72 L.Ed.2d 492, 50 U.S.L.W. 4553 (1982)
• Matt T. Kokkonen v. Guardian Life Insurance Company America, 128 L.Ed.2d
391, 62 U.S.L.W. 4313 (1994)

Jurisdiction over the parties is also called in personam jurisdiction and it originates from
any one of the following four sources. The parties must:

1. Live in the territorial jurisdiction of the court.

2. Operate a business in the territorial jurisdiction.
3. Own property inside the jurisdiction.
4. Commit an injury in the territorial jurisdiction.

In addition to the above four elements, the parties to the suit must also have had notice
and opportunity (in receipt of personal service and has a copy of the petition, claim, or
complaint). In most cases they must be personally served with the pleadings, for
instance, by a process server in order to make them parties to the suit.

Proof of jurisdiction must appear on the record of the court. Once the court has
knowledge that subject matter is lacking, the court (meaning the judge) has no discretion
but to dismiss the action. Failure to dismiss the action means the court is proceeding in
clear absence of all jurisdiction and subjects the judge to suit. Personal jurisdiction is not
usually an issue in most proceedings, but subject matter jurisdiction is always, always an
issue! Subject matter jurisdiction is not everything, It’s the only thing!

Subject matter jurisdiction requires:

• A competent witness or notarized affidavit demonstrating an injury.

• A statutory or common law basis for a remedy of the injury.

Another very important factor that most litigants forget is that attorneys CANNOT testify
as witnesses in trial! A neutral third party or litigant being represented by an attorney,
however, can testify. See the following authorities:

• United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977):
“Manifestly, [such statements] cannot be properly considered by us in the
disposition of a case.”
• Gonzales v. Buist, 224 U.S. 126, 56 L.Ed. 693, 32 S.Ct. 463 (1912): “Under no
possible view, however, of the findings we are considering can they be held to
constitute a compliance with the statute, since they merely embody conflicting
statements of counsel concerning the facts as they suppose them to be and their
appreciation of the law which they deem applicable, there being, therefore, no
attempt whatever to state the ultimate facts by a consideration of which we would
be able to conclude whether or not the judgment was warranted.
• Telephone Cases 126 U.S. 1, 31 L.Ed. 863, 8 S.Ct. 778 (1888): “Care has been
taken, however, in summoning witnesses to testify, to call no man whose
character or whose word could be successfully impeached by any methods know
to the law. And it is remarkable, we submit, that in a case of this magnitude, with
every means and resource at their command, the complainants, after years of
effort and search in near and in the most remote paths, and in every collateral by-
way, now rest the charges of conspiracy and of gullibility against these witnesses,
only upon the bare statements of counsel. The lives of all the witnesses are
clean, their characters for truth and veracity un-assailed, and the evidence of any
attempt to influence the memory or the impressions of any man called, cannot be
successfully pointed out in this record.”

As a pro per litigant, you are at an advantage over your attorney opponent because you
can testify while your opponent with the government cannot. This is the major defect of
the government’s case in most criminal tax trials: lack of witnesses. Even the W-2 forms
the IRS will try to use against you as evidence at trial are simply hearsay because they are
not notarized and qualify as neither evidence nor testimony. The same defect applies to
any records that are obtained by banks which are not notarized or in affidavit form. The
government doesn’t want you to know about these defects in their case against you.

Any ruling made by a court in which there was a lack of subject matter jurisdiction is
called a “void judgment”. The really bid deal, the real issue in void judgments is
SUBJECT MATTER JURISDICTION!!! Remember, subject matter can never be
presumed, never be waived, and cannot be construed even by mutual consent of the
parties. Subject matter jurisdiction is two part: the statutory or common law authority for
the court to hear the case and the appearance and testimony of a competent fact witness,
in other words, sufficiency of pleadings. Subject matter jurisdictional defects include any
of the following:

1. No Petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118, 122
(1930)
2. Defective Petition filed, Brown v. VanKeuren, 340 Ill. 118, 122 (1930)
3. Fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture
v. Dept. of Revenue, 109 Ill.2d 202, 486 N.E.2d 893 (1985).
4. Fraud upon the court, In re Village of Willowbrook, 37 Ill. App.3d 393 (1962)
5. A judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill. 140,
143 (1921).
6. Unlawful activity of a judge, Code of Judicial Conduct.
7. Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938);
Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E.2d 289 (1956);
Hallberg v. Goldblatt Bros., 363 Ill.25 (1936);
8. If the court exceeded its statutory authority, Rosenstiel v. Rosenstiel, 278
F.Supp. 794 (S.D.N.Y. 1967).
9. Any acts in violation of 11 U.S.C. §362(a), In re Garcia, 109 B.R. 335 (N.D.
Illinois, 1989).
10. Where no justiciable issue is presented to the court through proper pleadings,
Ligon v. Williams, 264 Ill. App.3d 701, 637 N.E.2d 633 (1st Dist. 1994).
11. Where a complaint states no cognizable cause of action against that party,
Charles v. Gore, 248 Ill.App.3d 441, 618 N.E.2d 554 (1st Dist. 1993).
12. Where any litigant was represented before a court by a person/law firm that is
prohibited by law to practice in that jurisdiction.
13. When the judge is involved in a scheme of bribery (the Alemann cases, Bracey
v. Warden, U.S. Supreme Court No. 96-6133; June 9, 1997)
14. Where a summons was not properly issued.
15. Where service of process was not made pursuant to statute and Supreme Court
Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E.2d 706, 708 (1955).
16. When the Rules of Circuit Court are not complied with.

In addition, any ruling that involves violation of due process of law under the Fifth, Sixth,
or Seventh Amendments is also a void judgment. Void judgment can be attacked or
vacated at any time and there is no statute of limitation. See Long v. Shorebank
Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999). A void judgment is one which,
from its inception, was a complete nullity and without legal effect, Lubben v. Selective
Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R.Fed. 298 (C.A. 1 Mass. 1972).
To successfully challenge the government’s jurisdiction, we must therefore:

• Demand that proof of the court’s subject matter jurisdiction appear on the record.
Subject matter jurisdiction can only exist when: 1. There is a competent witness
present who has suffered an injury; 2. There is a statutory or common-law basis
for the claim that is being presented; 3. The court has in personam jurisdiction
over both parties.
• Demand that the government produce an injured party or witness or an affidavit
of such a witness. This is impossible in most tax trials because tax crimes are
“victimless crimes”. Courts cannot have subject matter jurisdiction if the alleged
crime has no flesh and blood victims.
• If the court is a federal court, then it must be an Article III court and proof of this
must exist on the court record.
• Show that the IRS had no jurisdiction to institute an administrative lien or levy,
and had to reduce the lien or levy to a court judgment in order to perfect it and
make it into executable. See:
http://familyguardian.tzo.com/PublishedAuthors/Indiv/MeadorDan/Articles/Relati
onBackDoctrine-020701.htm
• Demand that the government provide proof that we are “taxpayers” and liable for
the income tax by showing us the statute that specifically makes us personally
liable.
• Demand that the government prove that we are “U.S.** citizens” (14th
Amendment citizens) subject to the jurisdiction of the court. We can also show
that we are NOT “ U.S. citizens” using evidence developed earlier in section
Error: Reference source not found during the expatriation process.
• Show that the government has no jurisdiction to levy income taxes on private
natural born state citizens not residing on federal territory. This means when we
appear in court, we should do so by making a “special appearance” rather than a
“general appearance”.
• Show that there is NO LAW making private citizens not living on federal
property to file income tax returns or pay income tax. We should repeatedly ask
in court and especially in front of the jury: “Years of my own diligent research
have proven to me beyond a doubt that there is NO LAW that makes me liable to
pay income taxes or file returns and you haven’t shown me any law that
contradicts this conclusion. Can you please show me such a law?”
• Show that The IRS assessment is a "naked assessment" with no supporting or
corroborating evidence that is unrefuted. This means that we have to find some
way to prove that the IRS has made their assessment of taxes due without any
legally admissible information or prima facie evidence. See also:
http://familyguardian.tzo.com/PublishedAuthors/Indiv/MeadorDan/Articles/ReqF
orAssessmtCert-020801.htm
• Show that any evidence the IRS has of taxable income was in error and has been
refuted with corrected W-2’s and 1099’s showing zero income.
• Challenge all presumptions that the jury and the courts might have and make it
clear to the jury that such presumptions are a violation of due process of law
under the Fifth and Fourteenth Amendments. Each fact or presumption asserted
 by either party must be proved by evidence from a competent witness, and
attorneys cannot be witnesses. See sections 2.8.2 and Error: Reference source not
found earlier for information about common presumptions.

The Federal courts have long held that when the presumed "taxpayer" has shown that the
IRS made an assessment without any evidence, the burden of proof is shifted to the IRS.
Below is the origin of why the courts must do this:

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART I - THE AGENCIES GENERALLY

CHAPTER 5 - ADMINISTRATIVE PROCEDURE

SUBCHAPTER II - ADMINISTRATIVE PROCEDURE

Sec. 556. Hearings; presiding employees; powers and duties; burden

of proof; evidence; record as basis of decision

(d) Except as otherwise provided by statute, the proponent of a rule or

order has the burden of proof. Any oral or documentary evidence may
be received, but the agency as a matter of policy shall provide for the
exclusion of irrelevant, immaterial, or unduly repetitious evidence. A
sanction may not be imposed or rule or order issued except on
consideration of the whole record or those parts thereof cited by a
party and supported by and in accordance with the reliable, probative,
and substantial evidence. The agency may, to the extent consistent with
the interests of justice and the policy of the underlying statutes
administered by the agency, consider a violation of section 557(d) of
this title sufficient grounds for a decision adverse to a party who has
knowingly committed such violation or knowingly caused such violation
to occur. A party is entitled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct such
cross-examination as may be required for a full and true disclosure of
the facts. In rule making or determining claims for money or benefits or
applications for initial licenses an agency may, when a party will not be
prejudiced thereby, adopt procedures for the submission of all or part
of the evidence in written form.

However, the IRS can escape their burden of proof by abusing the Law of Presumption
and making an unchallenged assertion that is ridiculous or unfounded or downright
wrong. For instance, they can erroneously call us a “taxpayer: and as long as we don’t
challenge their ridiculous assertion, then the presumption is that they are correct! Here
are two cases that talk about the burden of proof, and note how we underlined the word
“taxpayer” so you can see how it was used to create a false presumption:
 Once the Government has carried its initial burden of introducing some
evidence linking the taxpayer with income producing activity, the burden shifts
to the taxpayer to rebut the presumption by establishing by a preponderance of
the evidence that the deficiency determination is arbitrary or erroneous. (Cites
omitted)."

Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir. 1985)

"...[t]he discussion of the burden of proof in Foster applies only to the

procedural effects of the presumption that an assessment is accurate. Once a
taxpayer has introduced evidence sufficient to support a finding that the
assessment is wrong, Foster prevents the Government from simply resting on the
presumption and requires it to come forward with some evidence to support a
conclusion that the assessment is correct in spite of the taxpayer's evidence. But
the taxpayer continues to bear the risk of nonpersuasion. Foster does not relieve
the taxpayer of the burden of proving the government's assessment wrong by a
preponderance of evidence."

Higginbotham v. United States, 556 F.2d 1173, 1176 (4th Cir. 1977)

The very important thing to remember is that the above two rulings use the word
“taxpayer”, which as defined in 26 U.S.C. §7701(a)(14) as a person “subject to” the tax
in question, which is another way of saying they are "liable". Since most people are
“U.S. nationals” and “nonresident aliens” per the I.R.C., they are “nontaxpayers” and are
not affected by the above ruling. Unless and until a law has been produced that
specifically makes you liable for a specific tax, then you are presumed to be a
“nontaxpayer”.

"In the interpretation of statutes levying taxes it is the established rule

not to...enlarge their operations so as to embrace matters not
specifically pointed out. In case of doubt they are construed most
strongly against the government, and in favor of the citizen." (Gould v.
Gould, 245 U.S. 151 (1917))

It would therefore be erroneous and damaging for us to cite as authority any court ruling
or statute mentioning the word “taxpayer” because then we have made ourselves “liable”.
It would be just as damaging to our interests to allow the government to use the word
“taxpayer” without being corrected for each such abuse of the word, because it creates a
false presumption and shifts the burden of proof onto us. A good analogy is that if they
call us a whore, and we don’t refute it, then from that point on, the burden of proof falls
on us to prove that we aren’t a whore. Do you see the point? For instance, we wouldn’t
want to cite the statute below, because it doesn’t apply to “nontaxpayers”:

26 U.S.C. Sec. 7491. Burden of proof

(a) Burden shifts where taxpayer produces credible evidence

(1) General rule

If, in any court proceeding, a taxpayer [What about

"nontaxpayers"? Where are they covered?] introduces credible
evidence with respect to any factual issue relevant to ascertaining the
liability of the taxpayer for any tax imposed by subtitle A or B, the
Secretary shall have the burden of proof with respect to such issue.

(2) Limitations

Paragraph (1) shall apply with respect to an issue only if -

(A) the taxpayer has complied with the requirements under this title to
substantiate any item;

(B) the taxpayer has maintained all records required under this title
and has cooperated with reasonable requests by the Secretary for
witnesses, information, documents, meetings, and interviews; and

(C) in the case of a partnership, corporation, or trust, the taxpayer is

described in section 7430(c)(4)(A)(ii). Subparagraph (C) shall not
apply to any qualified revocable trust (as defined in section 645(b)(1))
with respect to liability for tax for any taxable year ending after the
date of the decedent's death and before the applicable date (as defined
in section 645(b)(2)).

(3) Coordination

Paragraph (1) shall not apply to any issue if any other provision of this
title provides for a specific burden of proof with respect to such issue.

(b) Use of statistical information on unrelated taxpayers

In the case of an individual taxpayer, the Secretary shall have the

burden of proof in any court proceeding with respect to any item of
income which was reconstructed by the Secretary solely through the use
of statistical information on unrelated taxpayers.

(c) Penalties

Notwithstanding any other provision of this title, the Secretary shall

have the burden of production in any court proceeding with respect to
the liability of any individual for any penalty, addition to tax, or
additional amount imposed by this title.
Do you know why the government even needs the above statute to begin with? Because
without it, the fundamental maxim of our legal system would apply, which is that a
person is “innocent until proven guilty”, which would create an impossible burden of
proof for the government to meet without the active participation of the accused
individual by fooling him into thinking he doesn’t have any rights and is “liable” for the
tax as a “taxpayer”. Basically, by calling you a "taxpayer", the government makes you
"guilty until you prove yourself innocent with evidence you must provide", which they
then use against you in the future in violation of the Fifth Amendment. This whole
statute was written to shift the burden of proof to innocent and ignorant people who don’t
understand that they are not “taxpayers”, because no one in the government nor any of
the IRS publications ever told them what a “nontaxpayer” was or that they fall into this
category. It’s basically a ruse: a trick to steal your money and it's so slick that only the
most seasoned lawyer will even realize what happened!

VERY IMPORTANT: At the same time, the burden of proof rests squarely on us to
demonstrate that we are NOT U.S.** citizens subject to the jurisdiction of the federal
court. This is done by following the steps found in section Error: Reference source not
found to develop evidence supporting this conclusion.

So, now it is a matter of getting the IRS to allow us to have our due process right to
confront and cross-examine the adverse witnesses against us (typically the employers
who made prima facie claims on W-2's and/or 1099's), as well as have the meeting to
make our defense, and thus make a complete administrative record of our efforts to carry
and shift the burden of proof.

Since the Treasury Department is well aware of what my argument is regarding the
claims of employers and payors, and the personnel at the IRS have never heard of the
procedure that I have discovered in the law as revealed in section 3.13.4.1 (“ Due
Process Principles and Tax Collection”), I suppose that it is not too difficult to understand
why it is that the IRS does not want to provide the Examination Interview, the prima
facie evidence (which they do not have), or summons their witnesses.

If the IRS persists in their denial of due process in contempt of the laws enacted by the
Congress and our rights, pursuant to Articles 1&5 of the Bill of Rights, shouldn't this
warrant Congressional inquiry and action?

We want to share another area that people need to re-focus in a more productive
direction. The military flag in the courts issue. Many “patriots” have discovered that the
flag in the court room is a gold-fringed maritime or admiralty flag. Extensive research
has been done on the subject. The research indicates that there can be no doubt that the
court displays a maritime flag. Wrong Focus! It is obvious the court is a court of
maritime jurisdiction enforcing maritime contracts. Many patriots have gone to jail
challenging the jurisdiction of the maritime flag. The courts have combined all four areas
law, equity, admiralty and maritime into one "civil" system operating mainly under
maritime/admiralty law.
Change focus from challenging the military flag toward challenging the "presumed"
contract that give admiralty/maritime venue and subject matter jurisdiction. We must
rebut the presumption of the contract and shift the burden of proof. Defendant could
shift this burden of proof by admitting a simple affidavit into evidence of the case stating
that the defendant denies that he signed any contract or other obligation that binds him to
the maritime or admiralty jurisdiction. Also stating defendant did not convey any
interest, right or title of himself or his private property to the State, etc.. If these facts are
properly admitted into evidence, the burden of proof is shifted to the prosecutor to prove
the existence of the contract or other obligation by admitting the original "contract" into
evidence, and this must be done by the real party in interest, whoever it is, not a "no
interest" third party like the IRS. (Key: IRS is NOT the "real party in interest"and IRS
has no first hand knowledge to base testimony on.). Now you want to demand the "real
party in interest" be put on the witness stand to testify with first hand knowledge.

If the government is unable or unwilling to admit the contract or other obligation into
evidence, and produce the "real party" as a witness to testify on first hand knowledge,
then its case falls apart absent proof of jurisdiction . If the prosecutor refuses to withdraw
the claim and the judge refuses to dismiss the case, they will be proceeding without
subject matter jurisdiction. With no subject matter jurisdiction, the judge and other
officers of the court have no official or judicial immunity and can be held personally and
criminally liable for wrongdoing. The courts have held:

"When a judge knows that he lacks jurisdiction, or acts in the face of

clearly valid statutes expressly depriving him of jurisdiction, judicial
immunity is lost."
Rankin v. Howard, (1980) 633 F.2d 844, cert. den. Zeller v. Rankin, 101
S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326.

"A judge must be acting within his jurisdiction as to subject matter and
person, to be entitled to immunity from civil action for his acts."
Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938).

"When a judicial officer acts entirely without jurisdiction or without

compliance with jurisdiction requisites he may be held civilly liable for
abuse of process even though his act involved a decision made in good
faith, that he had jurisdiction."
Little v. U.S. Fidelity & Guaranty Co., 217 Miss. 576, 64 So. 2d 697.

"No judicial process, whatever form it may assume, can have any lawful
authority outside of the limits of the jurisdiction of the court or judge by
whom it is issued; and an attempt to enforce it beyond these boundaries is
nothing less than lawless violence."
Ableman v. Booth, 21 Howard 506 (1859).

“We (judges) have no more right to decline the exercise of jurisdiction

which is given, than to usurp that which is not given. The one or the
 other would be treason to the Constitution."
Cohen v. Virginia, (1821), 6 Wheat. 264 and U.S. v. Will, 499 U.S. 200.

Maybe if the court refuses to back off the defendant should demand that the judge take
mandatory judicial notice of the above cases and similar cases. If the court still does not
back off and worse comes to worse, the defendant should raise the issue of subject matter
jurisdiction after trial and before sentencing at allocution. Allocution must be demanded
before sentencing or the right is presumed waived. If the rats still don’t back off the
defendant can make a direct appeal to the appellate court and on to the Supreme Court of
the United States; he can file petitions for the writ of habeas corpus; he can sue the
perpetrators, i.e., the cop for champerty, the lawyer for barratry and bringing a case with
unclean hands, the judge for lack of jurisdiction, and all of them for conspiracy to
fraudulently conceal the true nature and cause of the accusation, and maybe even for
RICO. It is never too late to challenge subject matter jurisdiction. It ain’t over until the
defendant gives up.

WARNING!: If you go into federal court claiming to be a nonresident alien who

wants his constitutional rights respected in regards to federal income taxes, be careful!
We’d like to remind you that litigation in the federal courts relating to federal income
taxes, under 28 U.S.C. §2201, cannot address constitutional rights as a remedy to escape
liability if you are claiming lack of federal citizenship or Natural Born Sovereign
Citizenship status.. You can only succeed in court against federal income taxes on the
basis of Constitutional rights if you can force the litigation into a common law court or
state court! Please go back and reread section 5.6.9.2 again to learn how to do this.