To Congress and the Lock-in Letter

I am troubled with some of the members of Congress especially on the Republican side of the chamber, house and senate.  You have been attacking the IRS for its abuse of power and refusal to cooperate in answering questions about their attack on conservative republicans.  Yet you show no concern when the IRS threatens citizens who are obeying the law concerning the withholding statements filed with their employers.

If the IRS doesn’t like the filing they notify the employer to disregard the W-4 as filed by the employee.  This is known as the ‘lock-in’ letter sent by the IRS to the employer.  All this in violation of the law regarding the W-4 filed by the employee found at 26 USC §3402(n), quoting: “(n) Employees incurring no income tax liability

“Notwithstanding any other provision of this section, an employer shall not be required to deduct and withhold any tax under this chapter upon a payment of wages to an employee if there is in effect with respect to such payment a withholding exemption certificate (in such form and containing such other information as the Secretary may prescribe) furnished to the employer by the employee certifying that the employee – etc.”

By regulation, the IRS has changed the law at 26 CFR §3402(n)-1 to read:  “In general. Notwithstanding any other provision of this subpart (except to the extent a payment of wages is subject to withholding under §31.3402(g)-1(a)(2)”.  The IRS has no authority to write or change the law, yet they have done just this by regulation and you people sit by and do nothing in the face of this criminal act.  BUT let them attack your “sacred cow” and ‘bar the door’ as all hell breaks loose.

The DOJ has already commented on the use of the term “notwithstanding” in legal writing.  “Although the TSP provisions may appear absolute if read in isolation, section 6334(c)’s ‘notwithstanding’ clause indicates by its terms that all ‘”other law[s] of the United States, . . ., are ineffective . . .”  (Letter from the DOJ legal division, the Office of Legal counsel, memorandum opinion for the IRS, May 3, 2010)  And so it is with the “notwithstanding” clause used in 26 USC §3402(n), making all other laws of that subsection, subpart or chapter ‘ineffective’ and that includes the quasi-legal regulation used by the IRS.

The Administrative Procedures Act at Title 5 §558(a),(b) prohibits this kind of activity:

(a) This section applies, according to the provisions thereof, to the exercise of a power or authority.

(b) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law.

The courts have even ruled on this behavior as quoted in the letter from the DOJ: As a general rule “the use of such a ‘notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.” Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993); see also, e.g., IIRIRA Opinion at 7 (observing that a prefatory “notwithstanding” clause ‘does reflect a congressional intention to displace inconsistent law”) [See also, Shomberg v. United States, 348 U.S. 540, 547-548 (1955), ” In using the “notwithstanding” language in these sections, Congress clearly manifested its intent that certain policies should override the otherwise broad and pervasive principle of the savings clause.”].  Indeed, some courts have observed that ‘”a clearer statement”‘ of congressional intent to supersede  all other laws ‘”is difficult to imagine,'” see Cisneros, 508 U.S. at 18 (quoting Liberty Maritime Corp. v. United States, 928 F. 3d 413, 416 (1991) . . . and the Supreme Court has described the “notwithstanding” clause in section 6334 as “direct[ing]” that “[t]he enumeration [of exceptions] contained in §6334(a) . . . is exclusive.” Drye v. United States, 528 U.S. 49, 56 (1991); see also In re Beam (Beam vs. IRS), 192 F. 3d 941, 944 (9th Cir. 1999) (describing section 6334 as “unambiguous” in indicating “that Congress clearly intended to exclude from IRS levy only those 13 categories  of property specifically-exempted in section 6334(a))”

The IRS completely ignores these legal points and the opinion of District Judge Huyett in addressing the W-4 withholding stated in part;  “The effectiveness of this system as a tax collection device obviously depends upon the honesty of the withholding exemptions claims submitted by the employee. The employer is not authorized to alter the form or to dishonor the employee’s claim.” (U.S. v. Malinowski, 347 F. Supp. 347[1992])

The members of were elected to not only look after the external affairs of the Nation, but also to secure the rights of the people in total.  See that you do it!

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