From: ICE 
Subject: SNET: [piml] Administrative Due Process and Goldberg v. Kelly
Date: 5 Apr 1999 02:36:54 -0400
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http://www.taxgate.com/ref/goldberg_kelly_summ.htm

The 'Gold Bullet' Article 

There is no such thing as a 'Silver Bullet' in dealing with the ignorance
of our nations tax laws...  but if you wanted the next best bullet, this
Supreme Court case is THE CLOSEST thus far...

Why?  Because of the alleged current lack of ability of your
position/argument to be HEARD if necessary...  this changes matters.

The article below contains the following relevant/important citations of
case law pertaining to common IRS situations which Thurston Bell has excerpted.

The actual case of Goldberg v.  Kelly is available at
http://www.laws.findlaw.com/US/397/254.html or a copy of it locally at this
site Goldberg v.  Kelly, 397 U.S.  254 (1970) for your reference.

It is a fact that the Goldberg case was about Welfare Benefits being cut
off, but the ultimate argument before the court was about the applicability
of the standards of DUE PROCESS OF LAW to Administrative Actions of the
Government.  Importantly, this article reveals that the standards of due
process of law apply to all Administrative Actions of the Government,
Federal and State.

"The fundamental requisite of due process of law is the opportunity to be
heard".  Grannis v. Ordean, 234 U.S.
385,394 (1914).  The hearing must be "at a meaningful time and in a
meaningful manner."Armstrong v.  Manzo, 380 U.S.  545, 552(1965).  In the
present context these principles require…timely and adequate notice
detailing reasons…, and an effective opportunity to defend by confronting
any adverse witnesses and by presenting arguments and evidence… These
rights are important in cases...challenged…as resting on incorrect or
misleading factual premises or on misapplication of rules or policies to
the facts of particular cases."  Goldberg v.  Kelly 397 U.S. 254 (1970) 

"In almost every setting where important decisions turn on questions of
fact, due process requires an opportunity to confront and cross-examine
adverse witnesses.  E.g., ICC v.  Lousiville & N.R.  Co., 227 U.S.  88,
93-94 (1913) 503 US L.Ed 2nd 391(1992), Willner v.  Committee on Character
and Fitness, 373 U.S.  474,496-497 (1959)" (emphasis added)

"Certain principles have remained relatively immutable in our
jurisprudence.  One of these is that where governmental action seriously
injures an individual, and the reasonableness of the action depends on fact
findings, the evidence used to prove the Government’s case must be
disclosed to the individual so that he has an opportunity to show that it
is untrue. While it is important in the case of documentary evidence, it is
more important where the evidence consists of testimony of individuals…"

"We have formalized these protections in the requirements of confrontation
and cross-examination.  This court has been zealous to protect these rights
from erosion.  It has spoken out…in all types of cases where
administrative...actions were under scrutiny."  Greene v.  McElroy, 360
U.S.  474.  496-497 (1959)

These case citations and the argument regarding the components of
Administrative Due Process of Law plainly apply to "all types of cases
where administrative...actions were under scrutiny."  This was the
principle and premise that I used to explain to an old friend of mine how
it is that I connected a case on Welfare to IRS.

There is no doubt that these components of due process of law are embodied
and given substance in American law by the 1st, 5th, and 6th Amendments to
the Constitution.  I think that it would be impossible for anyone to
contend anything to the contrary.  The following provision of Federal
Regulation clearly reveals that the Secretary of the Treasury testifies to
the fact that the 5th Amendment applies to the IRS:

26 CFR § 601.106(f)(1)

Rule I.  An exaction by the U.S.  Government, which is not based upon law,
statutory or otherwise, is a taking of property without due process of law,
in violation of the Fifth Amendment to the U.S. 
Constitution.

So it is nakedly apparent that the Amendments to the Constitution apply to
the IRS, and we know that none of the three Amendments mentioned above have
been repealed or amended, therefore the only way out for the IRS is to
somehow provide that the standards of due process of law, which would
appear to be more important since we bear the burden of proof, apply to us
and our cases before the IRS.

This is exactly why it is that I seek for the IRS to provide:

a.)  presentment of copies of all evidence used by the government against
us; b.)  meaningful hearing of all of the facts of this case; c.)
notification of procedure, forms, or opportunity to refute the evidence
against us (which is also the making of contentions of factual nature); d.)
hearing before an independent and impartial hearing officer; and; e.)
opportunity to confront and cross-examine all adverse witnesses, for the
creation of a complete defense and administrative record to support any
subsequent appeal.

as the elements of these rights were cited in the above U.S.  Supreme Court
cases.  Without them my question to the IRS, the District Counsel, the
Secretary of the Treasury, the Commissioner and Assistant Commissioner, the
President, the Congress, the District Director, and the Federal Judiciary
is, "How then are we expected to bear or shift the burden of proof?"

Without these components of due process of law applying to all branches of
the Government, especially where it is that Judicial Due Process prior to
the taking of property is barred by statute, the concept of the requirement
for Due Process of Law as required in the 5th Amendment to the Constitution
of the United States becomes arbitrary and capricious, and the
Societal/Social contract Between the People and the People and their
Government is null and void.

If the Contract is going to be held in tact by the Courts then this
following case is very important when you face collections of the
government in the face of Denial of Due Process of Law:

"If a question is raised regarding the recognition of a taxpayer's right to
due process of law, the issue should be resolved before proceeding with
collection.  Violation of a taxpayer's clearly established constitutional
rights could expose a collector to personal liability." Davis v.  Scherer,
468 US 183, 1984.":

There are many who will read this article in the future who believe and
have long held that the Societal/Social Contract is dead.  Still, these
people have failed to come forward with a simplistic argument as this one
which would prove that belief as a simple inescapable fact.

Here I give you the foundations for that argument.  I hope that they are
simple enough for the common man to understand so that they will see that
we have not yet exhausted our redress of grievance against the IRS
determinations as well as the apparent lawlessness of our Courts.  We have
not yet done so, because nobody has made it this simple, and thus the
actions of such people who are just one step from becoming the next Russell
Weston Jr.  (the accused Capitol Hill Gun-Man) are just as Mr.  Weston's,
and that is an individual's attempt to tear asunder the Societal/Social
Contract that is only apparently dead, and not conclusively dead by all
evidence, argument, and fact.

It is my goal to force the Courts to either uphold our Social Contract, or
for them to Publicly and Nakedly declare it to be dead, by forcing them to
answer the question about how it is that we are to have hope of bearing or
shifting burden of proof without presentment of the evidence against us as
well as the other components provided above.

If you or I dare to take action against the apparently active Social
Contract at this time we will be criminals. 

Yet, if the Supreme Court and Federal Courts refuse to provide remedy and
redress of grievance, or even rule that due Process is not applicable to
IRS matters due to the Anti-Injunction Act of 1863 and codified at 26 USC §
7421, and ignores the fact that the 1st, 5th, and 6th Amendments have not
been repealed or amended to bar administrative due process of law in
keeping with the standards of due process of law, then the Court, the final
defender and Fiduciary of the Social and Societal Contract will be the one
who will make the fact of the demise and disposition of the Contract clear,
and they will be the final word. Their decision will be a legal and valid
determination, from there the individual will be free and forced to choose
his or her personal course of action.

The record to date shows that the IRS is not interested in providing the
components of due process of law for us to make our defense and carry or
shift the burden of proof, it is now time to bring this violation of the
Contract to the Feet of the High Court, and make them rule not on Taxes,
but on Due Process of Law, the Foundation of our Rule of Law and Nation
pursuant to American Jurisprudence:

"The guaranty of due process of law is one of the most important to be
found in the Federal Constitution or any of the Amendments; Ulman v.
Mayor, etc.  of Baltimore, 72 Md 587, 20 A 141, affd 165 US 719, 41 L Ed 
1184, 17 S Ct 1001. It has been described as the very essence of a scheme
of ordered justice, Brock v. 
NorthCarolina, 344 US 424, 97 L Ed 456, 73 S Ct 349 and it has been said
that without is the right to private property could not be said to exist,
in the sense in which it is known to our laws.  Ochoa v.  Hernandez y
Morales, 230 US 139, 57 L Ed 1427, 33 S Ct 1033."

There we have it, without due process of law, there is no private property,
including the rights that come with property.  There is also no right to
the property of your person, your land, your home.  This also means that
Commerce is finished, as there is no property actual, physical, real, or
intellectual that can be protected from marauders, thieves, visigoths, or
vandals.  So business better start getting involved, as they are next.

Without due process of law all lawyers are out of work, the foundations of
the courts are undermined, they have no power, and the Law of the Jungle
rules, the Societal Contract is Officially Dead, and the Courts ruling will
be the Death Certificate.

It might be true already that the Law of the Jungle Rules, but we have to
make the U.S.  Supreme Court prove it.

When this happens we can all quote Axel Rose from the Rock Band Guns and
Roses..."Welcome to the Jungle..  we've got fun and games!" 
*************************************
related article at:
http://www.taxgate.com/ref/goldberg_kelly_summ2.htm


**********************************************************
ICE
ice@coolmedia.net
http://www.coolmedia.net/ice/
PGP Public Key Available on Request
**********************************************************
"To lay with one hand the power of government on the
property of the citizen, and with the other to bestow
it on favored individuals ... is none the less robbery
because it is ... called taxation".
- United States Supreme Court
Loan Association v. Topeka (1874)
**********************************************************

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