By RBC
The nasty buzzards at the tax service have served upon you a piece of paper entitled “Summons,” form number ___. They order you, a freeborn American citizen, to appear before an administrative agency to answer questions and surrender your private personal papers.
When the bank robber robs the bank on his way out of town, does he stop by the Sheriff’s Office and fill out the 1040 bank robbery form? Of course not. Why not? Because bank robbers, thieves and other hoodlums have protections and guarantees under the Bill of Rights including privileges against self incrimination.
The question is: do you, an honest, law-abiding American citizen, also have the “right to remain silent” and other protections of the Bill of Rights? Of course you do. You have the right to not answer questions or produce anything to administrative bodies, state, federal or local, that might be used against you in a criminal case. This is explained more in Clarkson’s introductory video.
Therefore, when you meet with the tax agents in the administrative branch of government, you can exercise your Constitutional right not to give evidence against yourself. However the Judicial branch has a different set of powers, one of which is the power to compel. By the word “power,” I mean the ability to force you to do something under threat of punishment. For not carrying out judicial orders, the Judges can punish you, sometimes severely.
Study the Clarkson video tapes, Audit Procedure I and Audit Procedure II.
The IRS personal summons, generally referred to as a Pocket Summons, in and of itself has no power. However, it sometimes leads to a court involvement, which can be a serious problem.
The Pocket Summons case usually involves four steps:
- The first appearance before the agent.
- The first appearance before the Judge on a Show Cause Order.
- The second appearance before the agent.
- The second appearance before the Judge on a serious Show Cause Order.
The fourth step, which is the second hearing before the Court, is for a rule to show cause for you to explain why you should not be found in contempt of court and jailed. This is a potentially deadly pitfall which must be handled in our standard manner. However, this is fairly easy and the outcome is certain.
The first three stages are really insignificant, which many people skip. However, we strongly recommend against no-shows because we advocate strict adherence to the laws and because these first three appearances set the stage for victory for the fourth.
A. The initial appearance before the agent.
Attend with a tape recorder and/or Court Reporter, privacy act questionnaire, two witnesses, a representative that the IRS will reject, etc.
Make your buddy a Court Reporter and another one, a representative. The IRS will refuse this and your fight begins. This is explained more in Clarkson’s Video/DVD Audit Procedure I & II ($60).
You should notify the IRS ten days in advance if you are going to have a tape recorder and/or Court Reporter.
You have a right to remain silent, or actually not to incriminate yourself. However, you must identify yourself, which means you answer questions as to your name, age and address and maybe your occupation and education level.
Before that you can make the agent identify himself. Under federal law, federal officials have no authority until they identify themselves. Make the agent produce his identification, preferably his “pocket commission” or large black wallet with a white, complete ID card. You are entitled to read this in its entirety.
Try the Privacy Act questionnaire found in the conferences subsection in the Audit Procedure section of this website. Give it to the agents and insist that they comply. The law requires them to fulfill this obligation, and they know it.
Then you can ask them the questions they must answer, including
1. Identify themselves with their title and a description of their job functions.
2. Ask them whether the information against furnished by you can be used against you in a criminal case. They will answer “yes” to this.
3. Whether the Internal Revenue manual tells the agent that you have the right to take the fifth at summons meeting.
4. Ask him if the IRS can grant you immunity. He will answer “no” to that.
5. Then ask him if the IRS can request the Department of Justice to grant you immunity. The correct answer is “yes” but the agent may not know it.
How to take the fifth
Amendment five of the US Constitution provides: “No person shall be… compelled in any criminal case to be a witness against himself.” This means that if the answer would be information against you in a prosecution, you cannot be compelled to talk or possibly to produce records.
In order to exercise your rights, you must think about the ramifications of your answers before giving them. If you think that possibly-somehow-maybe-potentially your information may later be used against you, you have a right under our Constitution to refuse to answer.
You can answer “fifth amendment”, “self incrimination”, “objection - self incrimination”, “objection- fifth amendment”, or anything that resembles the Fifth Amendment. The lawyers and fancy people would say, “I respectfully decline to answer under the terms and grounds of the Fifth Amendment to the United States Constitution.”
You cannot take the “blanket fifth” in other words you must wait until you hear each question and then you calculate in your mind whether your answer could possibly be used against you in a criminal proceeding. If you feel this is a possibility, then you should take the fifth.
Exercising your Fifth Amendment right to not incriminate yourself is, under the law, classified as “production.”
Surrender of your personal records
The IRS summons form orders you to bring your bank records, canceled checks, bank statements, etc… At the meeting the agent will ask you to turn them over. The employees of the executive branch can not make you do anything. However, we strongly recommend that you put records for each year in a package, properly labeled and take them to the meeting. Show the package, but not the contents, to the agent. You cannot be compelled to show the contents.
B. First Court Hearing:
1. If you do not produce the documents, or even if you do, the US Attorney will petition the district court for a Show Cause order to rule you into the federal courthouse so you can explain why you did not comply with the IRS directions.
The IRS summons is complied with because taking the fifth is classified as production—and therefore as compliance. Secondly the IRS summons is no more than a letter of requests. See Schultz I in the Audit Procedure section of the PN website.
2. When you receive the petition from the US attorney or the order from the Judge to appear, immediately file your pleadings which are on the website. You start out with the Cooley Fifth Amendment Motion to Dismiss, the first item on the pocket summons section. Then file the motion to quash (La Salle) prepared and written by Dr. Robert Clarkson.
3. If needed, file the motion to dismiss (attest).
4. Follow Dr. Clarkson’s instructions, (order the video tapes) study the La Salle case and the Cooley Fifth Amendment motion. Dr. Clarkson will help you.
5. File discovery, affidavit and other necessary pleadings.
C. Second Appearance before the Agent
1. The Judge will almost always order you to appear again before the agent, generally within 30 days.
2. Obey all court orders. Some people do not make the second appearance. However, Dr. Clarkson recommends you attend, because failure to do so may be used against you.
3. Repeat the steps in letter A above.
D. Second Court Hearing
1. The Judge will issue an order to show cause why you should not be held in contempt for not turning your records over.
2. File or re-file the pleadings and motions listed in section B above.
3. Go to the hearing, take a package with the books and records requested in the summons. Take at least two records for each year. If you do not have any, come up with some.
4. At the hearing, the agents may take the stand to testify. You can-cross examine them. The questions on the pattern interrogatories will do fine. Emphasize the La Salle doctrine.
5. If you take the stand to testify, or the judge orders you to answer questions, you must:
- Identify yourself. That means furnish your name address, age and maybe your education level and occupation.
- If they ask you questions, you decide whether the answer may tend to incriminate you or lead to incriminating evidence. Then you have the Constitutional right to take the fifth. Generally the answer to any question might tend to incriminate you.
- The judges almost always recognize your Fifth Amendment right. However a few will tell you to answer the questions. You can ask for immunity and put on the record your Fifth Amendment objection, then you must obey the judge.
- After protecting the record, answer all the questions the judge orders you to answer. This makes your answers “compelled testimony”.
- When they ask you to turn over your books and records, take the fifth or apply the fifth to the package of documents under the Boyd decision. Read the Cooley Fifth Amendment motion to fully understand this.
- One-third of the Judges will recognize your constitutional privilege on your books and records. Two-thirds will order you to produce them or turn them over to the IRS. Do what the judge says.
We have assisted in thousands of pocket summons cases and this is the process of a pocket summons case almost every time. However the judge may deviate from this pattern. If you are a member of the Patriot Network, feel free to call Dr. Clarkson. Jan09