Letter to the Utah Tax Commission

Since about 1982 the Tax Commission has been demanding tax filings.  About 1983, I submitted returns to the State showing no tax owing.  They wanted my 1040s for those years, which I manufactured and submitted without a signature.  It kind of confused them but they accepted them and I heard nothing more.  When we moved back to Utah in 1997, in 2000 they again started demanding.  Finally this year 2014, they are forcing me into an appeals hearing before Jane Phan, even though I have filed no request.  They do this to bring you into their jurisdiction and impose the burden of proof on you.  That is now the purpose of this letter to the judge.

Judge Jane Phan

Administrative Law Judge

Utah State Tax Commission

210 N. 1950 W.

Salt Lake City, Utah   84134

Ms. Phan,

To repeat, I do not waive any of my rights including the right to reject the error naming my person as ‘petitioner’ in the petition for appeal.  Also, I reserve the right to due process protected by the 5th Amendment of the Constitution and Article I, § 7 of the Constitution of the State of Utah. I am willing to sit down and talk with you about these legal points, however, I cannot accept the jurisdiction of this ‘Administrative’ court under the civil law.  Until jurisdiction can be factually shown by the Tax Commission, it does not exist, notwithstanding the fraudulent submission of the Notice of Appeal.

I cannot accept the fact that an Administrative Law Judge employed by the same office that seeks to take my property, can be neutral in as much as they have a vested interest in the success of their employer.  It is a ploy of the legal profession to spin the law and the ‘facts’ to direct the outcome.  It also make you a ‘judge’ in your own cause which is against all reason.  I recognize the Common Law and have the right to a hearing under that jurisdiction and confront the charges and persons responsible.

“Jurisdiction is a quality of the sovereign . . .” Hodges v. U.S., 203 US 1.

I have mentioned briefly in previous communications on this subject of the ‘sovereign’.  My research tells me that it is well settled in law that the people are sovereign and that government has NO inherent sovereign powers.  A corollary of a ‘sovereign’ is the existence of a ‘subject’, and there are no ‘subjects’ in this country.  As one expressed it, “we are all sovereigns without subjects”.  The Tax Commission’s sovereignty, under the doctrine of delegation of authority, can not be traced back to a ‘sovereign’ who is over me making me a ‘subject’.  And since that authority has no legitimate source the question that the Tax Commission has that authority cannot arise. (M’Culloch v. Maryland, 17 U.S. 316, Chief Justice John Marshall at page 430)

There are two jurisdictions, one over the subject matter (in rem) and the other over the person (in personam).  Your administrative court may have jurisdiction over the subject matter, but it lacks jurisdiction over the individual who in this case is the ‘sovereign’, a title that I claim.  Unless you, as a representative of the Tax Commission and the State of Utah, can show by way of a stipulation, or voluntary act upon my part that I accept the civil law jurisdiction, none exists.  The information received from the IRS and used by the Audit division to calculate a tax due lacks any stipulation on my part (1040 form) and represents only an opinion by some federal bureaucrat who only understands numbers and not the law.

By your using my letter of May 30th as a request for an appeal, you and the Tax Commission are compelling me into a jurisdiction against my will, causing me to be the plaintiff throwing the burden of proof on me when the fact remains that the Tax Commission is the moving party in this issue.  My letter of May 30th contains no request or mention for an administrative hearing or appeal.  There is nothing to appeal with the Audit division.

A meeting would be beneficial and I have emailed Ben McAfee to set one up.  This would be the proper setting to try and settle the issues with the exception that the Audit division is more into numbers and not law and could not rule on the points I have raised.  I do wish to see the information used from the IRS as I have asked for this several times and the Audit division has refused to send it.

If you can accept this setting and would like listen as you express your understanding on the laws that I have laid before the Tax Commission.  Reading the Notice I see that the respondent (Tax Commission?) is required to respond to the notice of the conference, by the 30th of July.My letter to Mr. McAfee of May 30, 2014 is a response to his letter of May 27, 2014 in which he identifies three items to support the position of the Audit division.  First, he presents Article 13, §4 of the Utah State Constitution, which should have been §12.  Then he cites Utah Code §§ 59-10-102 and 59-10-112.  Both of these cites are dependent upon the federal law.

(1)  59-10-102: “Declaration of intent . . . (1) to impose on each resident individual . . . a tax measured by the amount (of) taxable income . . . determined for federal income tax purposes.”

(2)  59-10-112: “State taxable income . . . means his federal taxable income . . .”

For the record, he states that “[t]he State of Utah’s authority to impose an income tax is independent of that of the federal government.”  I not sure, but reading these two cites tells me something different.  But let’s accept what Ben has said at face value.  If this is true then the State Tax Commission should be able to provide the Utah law that so states, however, I have not been able to find one.  The Tax Commission by it own admission is quite clear; “If you do not have to file a federal return you will not be required to file a state return.”  (copy enclosed)  This is supported by 59-10-502.  Without facts, the State Tax Commission, which includes both the audit and appeals division, has no authority to make a determination on my federal liability.  It is as simple as that!

Now Ben does indicate that the Tax Commission refers to (3) “definitions and calculations used by the federal government . . .”, and I have asked several times over the years for those documents to support the claim under 63-2-101 “Government Records Access” and the Tax Commission has failed to respond.  The Audit Division admits that they are in possession of records that pertain to me, yet they refuse to produce them.

Without a valid stipulation on my part with an admission of liability (1040 form) the State has no support for the opinion generated by the federal government.  The audit division is basing their opinion upon the opinion of the IRS.  Opinion built upon opinion is still an opinion developed by accountants.  Notwithstanding 63-2-204(7), the Tax Commission’s failure to provide the evidence is their admission that none exists.  As far as I am concerned, “Silence is equated with fraud”.

“Opinions are valueless as evidence without exploration of the underlying facts and rational showing the path from the facts to the opinion.”  (U.S. v. R.J. Reynolds, 416 F. Supp. 316, 325)  Because the Tax Commission MAY have certain information on a federal liability, like a voluntary admission or court finding, which would be facts, that information which they claim is not admissible and only speculation.

Going back to Ben’s declaration that the State is independent of federal law, then the U.S. Constitution and Supreme Court decisions on the matter are evidence of the authority of the State to tax.  To this the Supreme Court has been consistent in this one declaration;  ” (State taxation) is an incident of sovereignty, and is co-extensive with that to which it is an incident.  All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.

“The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; . . .” This is a Common Law principle expressed by Chief Justice John Marshall, M’Culloch v. State, 429.   This was reaffirmed by Justice Stone and expanded in Curry v. McCanless, 307 U.S. 357, 366.  Other Common Law principles on the authority of the State voiced by the Supreme Court are found in Dobbins v. The Comm. of Erie County, 16 Peters 435, 447.

As to this common law principle of sovereignty, when the Constitution refers to the “supreme law of the land”, it is not referring to the civil law, but to the common law.  It is interesting to note that the State of Utah has attempted to dissolve the common law under HRS Title 76-1-105;  “Common law crimes are abolished and no conduct is a crime unless made so by this code, or applicable statutes or ordinances.”

This Title 76 is a violation of the requirement imposed upon the State of Utah by the U.S. Constitution to provide a “republican” form of government.  But let’s accept the law as is, then the principle of ‘natural rights’ is the focus and this being the case, Article I, §2 of the Utah State Constitution states; “All political power is inherent in the people; . . . ”  Doing the genealogy and employing the common law doctrine of ‘delegation of authority’, we trace that authority back to the people and ask the question; What authority or power can I delegate to the government?  Do I have the right to take someone else’s property? NO!  Then how can I delegate that authority to any legislature?

“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”  Miranda v. Arizona, 384 U.S. 436, 491.  Following up on this I repeat the cites from the Supreme Court on rights:

Butchers’ Union Co. vs. Crescent Union Co., 111 U.S. 746, 762;

“The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase ‘pursuit of happiness” . . . .”

Jack Cole Co. vs. MacFarland, 337 S.W. 2d 453, 456 [1990] ; “Since the right to receive income or earnings is a right belonging to every person, this right cannot be taxed as privilege.”

Redfield vs. Fisher, 292 P. 813, 819;

“The individual, unlike the corporation, cannot be taxed for the mere privilege of existing.  . . . ,  the individuals’ rights to live and own property are natural rights for which the enjoyment of which an excise cannot be imposed.”

Lucas vs. Forth-Fourth General Ass’m of Col., 377 U.S. 713

“As stated by this Court in West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624, 638, ‘One’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’ A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” (p. 737)

These are Common Law principles which the State of Utah is trying to abolish.

Respectfully,

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