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Copyright © 2004, Jim Carter 


PART 5a:

(original version)


        Readers have lamented they have a friend incarcerated on a 26 USC 7203 charge, or have pled guilty to §7203, or have finished their sentence but have lost civil rights, and ask if the legal points in Parts 1 and 4 are useable for relief. The answer appears to be an unqualified "Yes."

         Statutory federal habeas corpus procedure is codified at 28 USC §§2241 to 2255.  Extensive analysis can be found in Federal Practice and Procedure by Wright  {KF9619, W7} Criminal Procedure, volume 7, Habeas Corpus §589-602.  The one hundred pages include copious annotations.  Federal Procedure, Lawyers Edition {KF 8835, F43} volume 16 Habeas Corpus, §§41.372 to 41.544 is also informative with coram nobis at §§41.545 to 41.576. Hard core students will find Moore's Federal Practice {KF8820, A313} volume 28, chapter 672, contains detailed citations.   More information is at 39 AmJur2d Habeas Corpus §§145-154 with coram nobis at §§227 - 273.

        A motion filed by a federal prisoner is pursuant to §2255 rather than §2241. Hey, this modern method of filing a motion in the court that imposed sentence as a continuation of the old case rather than filing a Petition for a Writ does not require a filing fee.  Filings are to comply substantially with a form available from the warden, but the form does not appear to be mandatory.  Whittemore v US, 986 F2d 575.  A memorandum may be attached to the form. The original and two copies are mailed to the sentencing court.  If the clerk finds the paper work to be improper, it is to be returned with a note of the flaw. The clerk will serve the DA. One circuit has ruled the motion is considered filed for time calculation purposes upon handing it to prison officials.  The writer has had the court deny receiving documents even after returning a green postal receipt postcard.  A friend might be considered for personally filing them and getting a file-marked copy. Good luck.

        The 'file at any time provision' of §2255 was changed to a one year statute of limitation for relief in 1996. 28 USC §2255(4)  tolls the statute from the time when facts supporting the claim could have been discovered through the exercise of due diligence.  If the violation has been a standing procedure by the IRS for 40 years and recently discovered, the time could be alleged to have just started.   28 USC  §2255(3)  alternatively starts the time when the right asserted was initially recognized by the Supreme Court.  The future will tell if this provision is applicable.  Since §2255 is extensively used to challenge grand jury composition, prosecutorial misconduct, prison conditions, unconstitutional searches, etc.,  the limitation can be understandable for those conditions.  In a challenge to the jurisdiction where the evidence is in the court file, it may be reasonable to push the issue a bit.

        No court has a right to imprison a citizen (or to remove civil rights) who has violated no law; such restraint, even if exercised by a court under the guise and form of law, is as subversive of the right of the citizen as if it were exercised by a person not clothed with authority.  Ex Parte Siebold, 100 US 371.  Courts have held the statute of limitation can be equitably tolled in extraordinary circumstances.   US v Kelly, 235 F3d 1238 (out of a concern for fairness);  US v Patterson, 211 F3d 927 (for actively misleading the defendant); Dunlap v US, 250 F3d 1001.  It can also be mentioned that FRCrP 12(b) authorize "defenses that (the) indictment or information fail to show jurisdiction or to charge an offense shall be noticed by the court at any time."  (This FRCrP is believed to have originated as a supreme court ruling.)  A statute of limitations in this case would have the effect of making legal what was an illegal procedure.    Jurisdictional questions are never waived; they can be attacked at any time. Waley v Johnston, 316 US 101 (1942);  Thor v US, 554 F2d 759.

              Individuals who have completed their sentence and are no longer in custody who wish to expunge the record of a criminal conviction and restore civil rights, voting privileges, firearms ownership, etc. may receive the same benefits of  §2255 by filing a Motion in Coram Nobis pursuant to the All Writs Act, 28 USC 1651(a).   US v Morgan, 346 US 502; US v Stoneman, 870 F2d 102; US v Folak, 865 F2d 110; Telink v US, 24 F3d 42.  Corum nobis has been historically used to challenge issues of law, even posthumously to clear a family reputation,  but there has never been a statute of limitations.

         A guilty plea can be challenged at any time if the court did not have jurisdiction.  Machibroda v US, 368 US 487.  On multiple count indictments, the sentences for §7203 counts may be removed. Habeas actions are theoretically expedited.

        Photocopies of the government websites mentioned and the Congressional Report can be attached as an exhibit for the convenience of the court if they are available.

        Final orders from  §2255 motions can be appealed. 28 USC 2253; Cherek v US, 767 F2d 335. The denial of a request of appealability by the district court can be appealed to the circuit court.  Hohn v US, 524 US 236 (1998).  A Certificate of Appealability is not required to appeal a denial of coram nobis relief.  US v Baptiste, 223 F3d 188.

         The above information is mentioned to show an individual who might be interested what historic academic information and procedural options are available. Generic motions must be adapted to fit circumstances. The reader will find the points and authorities cited are similar to those in the Motion to Dismiss the Indictment of Part 4. For legal advice, consult your friendly franchised barrister.

[motion style with district court case number]


        The defendant Moves this court to vacate and set aside the judgment and sentence of _____ months imposed by this court on [month, day, year]; to restore full civil rights; and to expunge the record of a conviction of the defendant; for the good and sufficient cause that the court was without jurisdiction to impose such sentence.

         Upon review, the indictment for 26 USC 7203, willful failure to file, is found to not claim the defendant had any legal duty to the plaintiff and could not then have violated any legal requirement imposed by law. Without a claim of a statutory duty being violated by the defendant, no crime has been charged (there is no cause stated) and the Fifth  Amendment mandate that all judicial actions shall proceed only by due process (the law of the land) has been violated, and jurisdiction has not been vested.

Under penalty of perjury, all statements of fact in this motion and the attached memorandum are declared to be true and correct.

         [signed and dated,  address and phone number optional]

[motion style with district court case number]


         This Motion is filed pursuant to statutory provisions of 28 USC §2255 for habeas corpus and FRCrP 12(b). The movant is federal prisoner number ________ at _________________  prison.

        Habeas corpus will lie where no offense has been committed.  Strauss v US, 516 F2d 980; Martency v US, 216 F2d 760;  Robinson v US, 313 F2d 817;  Roberts v US, 331 F2d 502;  Martyn v US, 176 F2d 609.  An indictment that does not charge an offense can be discharged by habeas corpus.  Roberts v Hunter, 140 F2d 38; Brock v Hudspeth, 111 F2d 447; White v Levine, 40 F2d 502.  Lack of a valid indictment is cause for release by habeas corpus. Ex parte Bain, 121 US 1; Ex parte Wilson, 114 US 417.

         The court will take judicial notice that the indictment claims the defendant violated Title 26, United State Code, Section 7203 by reason that he had gross income of $_________ and that he did willfully fail to make a tax return “as required by law.”  There is no other statute from Title 26 mentioned in the indictment.

         The court will also notice that §7203 is an administrative procedure in Subtitle F, PROCEDURE AND ADMINISTRATION that is applicable to all 80 or so taxes the IRS collects. It does not identify what tax is being enforced.

         There is no statute/law cited that imposes any type of legal responsibility on the defendant. The only law cited (§7203) is that the IRS is empowered to punish individuals who are required to pay taxes. This premise is not challenged.

          It appears from a generous reading of the indictment that an income tax has been pursued. The adjective ‘income’ is found before the noun ‘tax.’ Is the defendant supposed to make some legal assumption from that phrase? Defendants cannot be required to make legal assumptions from criminal process.

         In brief, the indictment does not charge the defendant with being legally responsible for any tax. This position has been obliquely observed in recent adjudication that might be best to review.

         In US v Moore, 692 F2d 95, pro se Moore suggested IRC §7203 was unconstitutionally vague and additionally failed to specify who has to pay an income tax. The trial court prevented such arguments from being made to the jury and the appellate court declared IRC §l and §6012(a) made the defendants responsible for the income tax.

         In three appeals by the same lawyer from tax court, the court in Lively v CIR, 705 F2d 1017 declared a claim of  “no law imposing an income tax on (Lively)” was without merit while in Ficalaro v CIR, 751 F2d 85 and Charczuk v CIR, 771 F2d 471 the court declared §§1 and 61 made the taxpayers liable for the income tax. Since all three citizens had petitioned tax court, there was no indictment served nor did the 'taxpayer' have standing to challenge the legality of the income tax. A petitioner to tax court cannot make such a challenge. To file a petition in non judicial tax court inherently assumes jurisdiction of the legislative Article I 'court' (not an Article III judicial court) and the legal position of a taxpayer. This is the Roman civil law procedure that is applicable in administrative tax court. To challenge liability for the income tax in appellate court after acquiescence to the status of taxpayer in tax court is an absurd appeal that justified personal sanctions upon the lawyer. It might be in the public interest to revoke his license. The circuit courts only address error in the trial court (or in the case of tax court, the hearing); appeals are not trial de nova.

         In US v Pederson, 784 F2d 1462 (1986), the court declared liability was imposed by §§1 and 6012.

         In US v Bowers, 920 F2d 220, the defendants asserted they were not “persons” within the tax law and wage income is not taxable. The court declared IRC §6012 requires payment of taxes.

          While not holding on this court, we can observe the Treasury Department has recently suggested several statutes impose liability on the taxpayer: “The Truth: The tax law is found in Title 26 of the United States Code. The requirement to file an income tax return is not voluntary and it is clearly set forth in the Internal Revenue Code (IRC) Sections 6011(a), 6012(a), et seq., and 6072(a).”  page 7-8. {Earlier editions were at page 4} At an IRS website "http://www.irs.gov/pub/irs-utl/friv_tax.pdf," the publication THE TRUTH ABOUT FRIVOLOUS TAX ARGUMENTS , subsection B. Contention: Payment of Tax is Voluntary declares "the requirement to pay taxes is not voluntary and is clearly set forth in section 1 of the Internal Revenue Code, which imposes a tax …" on page 4 of 32.

         It can additionally be shown that the Congressional Research Report titled FREQUENTLY ASKED QUESTIONS CONCERNING THE FEDERAL INCOME TAX prepared for members of Congress declares IRC §§1, 61, 63, 6012 and 6151 "working together, make an individual liable for income taxes."  Page numbers vary in different publication dates.

         Since different statutes are claimed by various sources to impose legal responsibility, is there any justifiable reason why legal liability was not declared in the indictment? Of more importance, is the indictment in this case, which does not include a statute declaring legal responsibility for a tax, consistent with fundamental requirements of due process as established by the Supreme Court to confer jurisdiction upon this court?

         The inescapable conclusion is that various sources recognize the requirement that legal responsibility for a tax must be made by statute, and they all offer their favorite statute as the authority. It is a violation of due process if a taxpayer has to guess what law makes him responsible for a tax. "(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v General Construction Co., 269 US 385, 391 (1926).

         But the quotation misses the real point. We are not addressing a vague statute. There is no ‘statute which requires the doing of an act’ averred in the indictment. It is manifestly obvious the defendant cannot violate IRC §7203. The section reads: “Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof …” emphasis added. The requirement is clearly outside §7203; the defendant cannot violate §7203. If the defendant is required 'under/by this title',  then the punishment of §7203 can be pursued by the prosecutor. What law
'under/by this title' requiring the payment of a tax has the defendant violated? There is no answer.  Concurrence that legal responsibility is outside §7203 is evidenced in the circuit court opinions, Congressional Report, and government websites listed above.

         FRCrP 7(c)(1) requires the indictment to “state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.” Criminal process must allege every essential element of the offense. Evans v US, 153 US 584; Hagner v US, 285 US 427; Hamling v US, 418 US 87. Notification of legal responsibility is "the first essential of due process of law." Connally v General Construction Co., 269 US 385, 391 (1926). The notification of legal responsibility "or other provision of law which the defendant is alleged therein to have violated"  is not found.

         The phrase “as required by law” within the indictment is a conclusion of law that is unacceptable in criminal process. In Boyd v US, 116 US 616 (1886), the court observed the succinct statement by Lord Camden: "If it is law, it will be found in the books; if it is not to be found there, it is not law." id 627. All the IRS must do is cite their favorite statute.

         Without a claim that the defendant is legally responsible for a tax, the defendant has not been charged with a legal duty. If he is not charged with violating a legal duty, no crime has been alleged. If no crime is alleged, there is no case. If there is no case, there is nothing for this court to have jurisdiction over. The above steps are the fundamental requirements of due process. If due process is not followed, the court does not have jurisdiction. "A judgment rendered in violation of due process is void." World Wide Volkswagen v Woodsen, 444 US 286, 291 (1980); National Bank v Wiley, 195 US 257 (1904); Pennoyer v Neff, 95 US 714 (1878).

         The Supreme Court, in reversing a conviction, stated: "It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged violates due process." Vachon v New Hampshire, 414 US 478 (1973). The instant application is not to mere evidence as in the Vachon case; it is to accusing the defendant of violating a law, and that accusation is never made. It is inconceivable that there is a more 'crucial element of the offense.'  Without a claim of a lawful duty being violated, there is no offense.

         The Supreme Court again reversed a conviction of a crime that was not charged in the indictment. "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. If, as the State Supreme Court held, petitioners were charged with a violation of §1 [and convicted of §2], it is doubtful both that the information fairly informed them of that charge and that they sought to defend themselves against such a charge; it is certain that they were not tried for or found guilty of it. It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made." Cole v Arkansas, 333 US 196, 201 (1947), citations omitted.

         The present situation is not of charging the defendant under one statute and convicting him under another as in the Cole case; it is a situation of convicting him under an unidentified statute---of  "a charge that was never made." The IRS has not charged the defendant with being legally responsible for an income tax. The present situation is precisely the example envisioned by the court as a most egregious violation of due process. Defendant must be given adequate notice of the offense charged against him and for which he is to be tried. Smith v O'Grady, 312 US 329 (1941). "Conviction upon a charge not made would be sheer denial of due process." De Jonge v Oregon, 299 US 353, 362. (1937).

         Would the lack of a statute averring legal liability constitute harmless error? Again, let the Supreme Court address the issue. In Smith v US, 360 US 1, the court held the constitutional right to an indictment could not be waived by the defendant and that a proceeding in violation of this constitutional requirement negated the jurisdiction of the court. (The Supreme Court could not have returned the case for a new trial if jeopardy had attached in the first trial.) The constitutional right to be left alone unless charged with violating a law (the essence of due process) is no less a constitutional right than being indicted for an infamous crime. In fact, the Magna Carta’s protection by “law of the land” (due process) predates the origin of the indictment.

        While all legal theory and case history given herein emphasis the absence of a law within the indictment, a reflection on the history of the Magna Carta's protection in the frame of the instant application underscores why the procedure was demanded by the Barons so many years ago.  Without the requirement that a law be cited to justify the King's seizure of the peasant's goodies, there can be no defense to arbitrary confiscation.  The accused must carry the burden of proof to show the theft is illegal.  This reversal of our traditional placement of the burden of proof is impossible to overcome.  Due process requires the government to affirmatively show their authority.  It is a violation of due process to require a defendant to show exclusion from a tax. Unitarian Church v Los Angeles, 357 US 545.

         Since the indictment failed to state an offense and a crime has not been charged, the judgment must be vacated and set aside. US v Osiemi, 980 F2d 344 (1993). A challenge to the jurisdiction of the court is not waived by failure to raise the issue in trial court or on direct appeal.  id, 345.  Nor is the challenge waived by lack of an appeal.  FRCrP 12(b).

            [signed and dated?]



This article is not to be considered as legal advice. The case analysis is considered to be accurate but the writer is not responsible for any use made of the information.

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Introduction | Part 1  | Part 2  | Part 3  |  Part 4  

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