The lawyers, judges and legal system as a whole will scoff at this discussion saying the use of precedent is nothing more than a time saver, a time management deal. That would be true if valid precedents were being used. They might even add that it is to make certain that everyone presenting the same or similar set of facts governed by the same laws will be given the same decision. Allegedly this ensures equal protection under the law.

Precedent. Black's Law Dictionary Fourth Edition (B4E), page 1340:

Before moving on let’s talk about what that definition says. The first sentence uses the phrase adjudged case or decision. We need to define more words.

B4E at page 63 defines Adjudge as:

To pass on judicially, to decide, settle, or decree, or to sentence or condemn. People v. Rave, 364 Ill. 72, 3 N.E.2d 972, 975. Judgment of a court of competent jurisdiction; equivalent of convicted and sentenced. In re Tarlo’s Estate, 315 Pa. 321. Implies a judicial determination of a fact, and the entry of a judgment.

B4E at page 494-495 defines Decision as:

A popular rather than technical or legal word; a comprehensive term having no fixed legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character. … A judgment or decree pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. … A judgment given by a competent tribunal. … The findings of fact and conclusions of law which must be in writing and filed with the clerk. …. A determination of a judicial or quasi-judicial nature.

So adjudge means the court has heard the issues and after due consideration has made up its mind. Having made a decision the judge or judges write a judgment order or decree to resolve any and all legal questions regarding the facts presented and the evidence heard. Frequently the judge writes a Finding of Facts and Conclusions of Law allegedly advising the litigants how and why the law applies to the specific set of facts thus resolved.

Go back now to the definition of precedent and pay close attention to this quote:

It means that a principle of law actually presented to a court of authority for consideration and determination has, after due consideration, been declared to serve as a rule for future guidance in the same or analogous cases.

Complaints, petitions, pleadings and papers must be filed in a court with the authority to adjudicate the issues and grant the relief requested. Now I point out that most purported precedents habitually used in the federal system are not valid. Why? Because most of the cases quoted by the US were summary decisions. These cases were dismissed because the court lacked either jurisdiction, or the authority to grant the relief requested. The case was dismissed without adjudication of the complaint, rather the court ruled on the affirmative defense motion known as a Lack of Jurisdiction or Motion to Dismiss for Failure to State a Claim Upon Which Relief May be Granted. Remember the court must have authority to determine the issues and grant the relief. If the court lacks either it doesn’t have cognizance of the matter. In these cases the court only possessed sufficient authority to determine its jurisdiction and/or authority, which was to rule on the motion before it.

One such infamous case is Lonsdale v. United States, 919 F.2d 1440. This is a 10^th Circuit Court of Appeals case. The Lonsdales’ filed what they called a Quiet Title Action in Federal District Court. What follows is the actual ruling. It has been embolden so that you may see that portion which alone is quotable as precedent.

"The government moved to dismiss on jurisdictional grounds, and, in the alternative, for failure to state a claim upon which relief could be granted (FRCP Rule 12(b)(6)). The district court granted the motion without specifying the basis upon which it relied. The Lonsdales’ subsequent motion for reconsideration was denied. On appeal the Lonsdales reassert the arguments which they made in the district court and raise other issues as well. However, because the dismissal below was necessarily based upon the complaint itself, we address only those matters pled in the complaint. For the reasons stated below, WE AFFIRM THE DISMISSAL OF THE LONSDALES’ ACTION."

The 10^th Circuit affirmed the dismissal, and then provided the litigants with a detailed dissertation more commonly called Findings of Fact and Conclusions of Law explaining why it ruled the way it did. This dissertation is in actuality dicta and or obiter dicta and cannot be used or quoted. Everything within the first segments of the decision is fine, right up until the court begins to wax prolific with its commentary. Keep in mind the appellate court is hearing an APPEAL not an original jurisdiction action. The only thing appealable is whether or not the lower court erred. The Lonsdales’ cannot file an original jurisdiction action under the guise of an appeal. When an issue is taken up on the basis of an appeal nothing other than error can be presented.

The Lonsdales lower court decision was clearly made because it could determine that the complaint was prohibited by statute. The issues within the complaint were only looked at to determine if in fact they constituted a quiet title action. The issues were not litigated. Think about this. If the lower court lacked jurisdiction to hear the issues in the complaint, then how could the lower court rule on their validity? Now that’s a real no-brainer. It couldn’t. As shown earlier in this discussion a precedent can only be generated by a fully litigated case, which this was not.

The court as quoted above clearly stated the Lonsdales’ merely restated the original complaint. Well, if the lower court cannot hear the issues presented because it lacked jurisdiction, the APPELLATE Court cannot hear them either. The appellate court then commits outright prevarication when it begins to detail the alleged issues resolved by its ruling. The 10^th Circuit sua sponte construed the Appeal from the Lonsdales as though it were on an alleged lower court error.

Everyone challenging the IRS has received letters claiming victory on behalf of the agency under the Brushaber v. Union Pacific Railroad, 240 US 1 (1916) case. We have all been told this decision extolled the validity of the statutes and labeled the tax as an indirect tax in the nature of an excise. Let’s see what needs to be seen about this case, before we jump into the dicta by that court.

Pardon me, but it appears this was a dismissal under what would be identified today as a Federal Rules of Civil Procedure Rule 12(b) (6) ‘Failure to state a claim upon which relief could be granted.’ How many times must we all be told that the Supreme Court will not decide on a constitutional question if it can eliminate the case on a statutory one.

Then of course there is the Stanton v. Baltic Mining, 240 US 103 (1916) which stated this:

Further also like the Brushaber case this is before us on a direct appeal prosecuted for the purpose of reviewing the action of the court below in dismissing on motion the bill for want of equity.

Neither of these critical initial Supreme Court cases ever rendered a decision on the facts of the complaints filed by the litigants. The court ruled on whether or not the lower court acted in error and we’ve been letting them do this to us for years.

It continues with another infamous action frequently cited by the US Attorneys is the US v. Studley, 783 F2d 934 a 9^th Circuit Court of Appeals decision. This case was criminal. It was tried on violations of 26 USC §7203, Willful Failure to File. The opinion and ruling is quoted below with the ruling embolden so that the reader may know that portion which is actually quotable as precedent.

"Studley, a real estate broker, was convicted after a jury trial of three counts of willful failure to file tax returns for the years 1978, 1979, and 1980. (foot note) 26 U.S.C. S7203. Studley filed a timely notice of appeal and raises a host of issues before us. WE AFFIRM."

The case was before a jury. The charges the government was compelled to prove beyond a reasonable doubt was whether or not Studley willfully failed to file returns. The decision of guilt or innocence was determined by the jury, and with the exception of the rulings on admissibility of evidence there were no issues before the court other than Studley’s alleged willful failure to file.

On appeal Studley attempted to present two legitimately appealable issues, and was denied on both, one being an invalid search warrant and the other jurisdiction. Studley then attempted to raise new previously unlitigated issues, one of which was that of Taxpayer Status.

The above quote isn’t a ruling by this court, it is commentary and constitutes dicta and/or obiter dicta. Contrary to the desire of the courts to raise themselves to the status of demigods every utterance by a judge simply isn’t a ruling, decision or in some cases even the truth.

Just for the fun of it, let’s see what the Romero case was all about. Well now, it was a criminal conviction on willful failure to file (26 USC §7203). Below is the actual ruling by the 9^th Circuit Court of Appeals. Again I embolden the ruling, because it is what becomes precedent and quotable.

Robert Romero appeals his conviction, on five counts of willful failure to file income tax returns, alleging that he was denied a fair trial and that the United States failed to prove all the elements which were necessary to constitute the crime charged. WE AFFIRM ROMERO'S CONVICTION.

Romero argued on appeal that the lower courts instructions to the jury regarding the terms income and person were erroneous. This is absolutely an appealable issue. The dicta regarding the issue was on point up until the portion I have emboldened. Once it started into this phrase the court was off into an aside, it isn’t a finding of fact. Why? Because it isn’t at issue, the issue is whether or not the lower court erred in it’s instructions to the jury on the terms, not whether Romero’s beliefs were in line with the law. See for yourself. The 9^th Circuit states as follows in its findings of fact and conclusions of law:

Romero also alleges bias and error on the part of the trial judge based upon the judge's comments and instructions concerning the legal meaning of the terms "income" and "person" in 26 U. S. C. SS 61 and 7203. We find this allegation to be frivolous. 26 U. S. C. S61 provides in part: "(a) General definition.--Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, and similar items[.]" In addition, the reference to the word "person" in section 7203 of title 26 is intended to encompass not only all individuals subject to income tax liabilities, but also legal entities liable for tax payments or required by law and regulations to make a tax return. The trial judge properly instructed the jury on the meaning of these terms. Romero's proclaimed belief that he was not a "person" and that the wages he earned as a carpenter were not "income" is fatuous as well as obviously incorrect. See Lucas v. Earl [2 USTC P496], 281 U. S. 111, 114-15, 50 S. Ct. 241, 74 L. Ed. 731 (1930);

Furthermore the 9^th Circuit alludes to a reliance on Lucas v. Earl for its commentary. The Earl court wrote a one-page decision for a civil action having nothing to do with whether or not salaries constitute income. The Earl court stated the issues as follows:

This case presents the question whether the respondent, Earl, could be taxed for the whole of the salary and attorney's fees earned by him in the years 1920 and 1921, or should be taxed for only a half of them in view of a contract with his wife which we shall mention. The Commissioner of Internal Revenue and the Board of Tax Appeals imposed a tax upon the whole, but their decision was reversed by the Circuit Court of Appeals, 30 F. (2d) 898. A writ of certiorari was granted by this Court.

The ruling was explained first and again has been embolden for your edification:

By the contract, made in 1901, Earl and his wife agreed "that any property either of us now has or may hereafter acquire . . . in any way, either by earnings (including salaries, fees, etc.), or any rights by contract or otherwise, during the existence of our marriage, or which we or either of us may receive by gift, bequest, devise, or inheritance, and all the proceeds, issues, and profits of any and all such property shall be treated and considered, and hereby is declared to be received, held, taken, and owned by us as joint tenants, and not otherwise, with the right of survivorship." The validity of the contract is not questioned, and we assume it to be unquestionable under the law of the State of California, in which the parties lived. NEVERTHELESS WE ARE OF OPINION THAT THE COMMISSIONER AND BOARD OF TAX APPEALS WERE RIGHT.

Obviously, it was the intent of the 9^th Circuit to mislead the reader of the Romero decision into believing a decision had actually been made on the meanings of the terms income and person. Additionally there was the obvious intent by the Romero court to foster continued reliance on the so-called decision regarding income and person. If that isn’t prevarication by implication then the writer doesn’t understand the meaning of the word.

It should also be recognized at this point that the author is establishing credibility by handing the court decisions right to you. There are many more. Far to many to list here. You must always read all of the decisions relied on by the government, because eventually you’ll find the root decision and it may well be that it is a case of "court created fallacies."

Enough has been given to you to show you that tenacity and detection is the better part of a smart litigator.

Congress granted the federal district court cognizance of all issues arising in a case or controversy from the federal statutes. They then turned around and prohibited the federal district courts from hearing internal revenue issues prior to payment by enactment of the Declaratory Judgments (28 USC §2201) and Anti-Injunction Acts (26 USC §7421). These two acts work in tandem. If there isn’t a specific waiver of immunity within 26 USC then the federal district courts can’t grant the relief you request.

If you lose in the lower court the proper format for an appeal is to move on the errors made by the lower court. An appeal is not the forum for rehashing the arguments in the complaint. Why because this is an appeal on issues determined by the lower court not an original action in the Circuit Court. What did the lower court decide? In the case of a summary decision it determined that it lacked jurisdiction or authority to grant the relief you requested. It never decided any of the issues in your complaint other than whether or not they could hear them. Your appeal then must establish that the lower court had the authority to grant the relief and/or hear the case.

B4E page 124, Appeal

In Civil practice. The complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse.

Ballentine’s Law Dictionary, page 82; Appeal

Any form of appellate review other than by one of the extraordinary writs. 4 Am J2d A&E §2. Generally regarded as a continuation of the original suit rather than as the inception of a new action, confined normally to consideration of the record which comes from the court below, with no new testimony taken or issues raised in the appellate court 4 Am J2d A & E §2.

To revert to a terminology arising from distinctions that are rarely recognized in modern practice, an appeal brings up questions of fact as well as of law, but upon a writ of error only questions of law apparent on the record can be considered, and there can be no inquiry whether there was error in dealing with questions of fact. Behn, Meyer, & Co. v. Campbell & Go Tauco, 205 US 403, 407…..

To emphasize precisely what goes into the appeal I want you to pay special attention to the definition provided above where I have highlighted the issues. The appeal is confined to consideration of the record, no new testimony is taken or issues raised. There was never any testimony taken and no evidence proffered. A summary decision is a preemptory decision not fact based, but an issue of law.

Read Chapter 83 of Title 28 USC sections 1291 through and including 1296. 28 USC §1291 reads as follows:

28 USC §1291. Final decisions of district court

The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title.

I’ve highlighted what applies to you and me, so you can see the law.

28 USC §1292 deals with interlocutory decisions, which is not applicable on summary decisions. 28 USC §1295 pertains solely to the Federal Circuit and isn’t applicable to anyone outside that authority. 28 USC §1293 and §1296 were repealed.

28 USC §1294 has a direct baring on the appeal definition and application. It reads as follows:

28 USC §1294. Circuits in which decisions reviewable

Except as provided in sections 1292(c), 1292(d), and 1295 of this title, appeals from reviewable decisions of the district and territorial courts shall be taken to the courts of appeals as follows:

1. From the district court of the United States to the court of appeals for the circuit embracing the district;
2. From the United States District Court for the District of the Canal Zone, to the Court of Appeals for the Fifth Circuit;
3. From the District court of the Virgin Islands, to the Court of Appeals for the Third Circuit;
4. From the District Court of Guam, to the Court of Appeals for the Ninth Circuit.

Please notice that the statute authorizes a review not a trial de novo. The word review means:

B4E page 1483 to re-examine judicially. A reconsideration; second view or examination; revision; consideration for purposes of correction. Used especially of the examination of a cause by an appellate court, and of a second investigation of a proposed public road by a jury of viewers.

The federal system of courts was created to allow the trial of the facts at the lower level and designed to avoid constitutional confrontations. Court policy has always been to resolve all issues at the statutory level whenever possible. If the appeals courts constituted the trial de novo, as opposed to the review of the lower court decisions then two trials would be taking place at double the taxpayer expense and double the time, with all decisions reviewable then only by the Supreme Court. That isn’t the way the system works.

Appellate courts are fond of laboriously detailing what it calls frivolous arguments when in reality the appellate court only has cognizance of the lower court decision, not of the complaint as originally filed. The appellate arguments presented to the Circuit Court are frivolous when they merely restate issues in the complaint not adjudicated and fail to detail the error of the lower court or valid appeals issues.

Egregious decisions such as Lonsdale v. US, US v. Studley and many others routinely identified as tax protester cases are uniformly applied as precedent. Criminal cases are alleged to have decided everything known to God and Man when in reality the only thing in front of that jury is the criminal statutes and whether or not the government has proven its case beyond a reasonable doubt. Appellate courts determine error, in lower court decisions and do not decide issues not before the court. It can’t, it doesn’t have jurisdiction over the issues.

Be very careful when reading court decisions. The judges and justices have been and remain verbose, loquacious and frequently prevaricate, literally assuming a literary license. Many times it was the Supreme Court that was responsible for the problems with which we are now forced to deal. Judges are supposed to apply the law to the facts before them, not interpret the law and constitution. Decisions contain an abundance of unnecessary historical fact and fiction (dicta), as well as simple asides (obiter dictum). Remember now that in the definition for precedent the following phrase appears:

This phrase is so key to the use of a valid precedent and directly applicable to hundreds if not thousands of litigants that I can not stress this sufficiently. The government and the court cannot quote from the commentary (dicta and or obiter dictum) of any previously decided case. The only part of a judgment decree that is precedent is that segment which literally provides the resolution. Nothing leading up to the decision is precedent. If the Findings of Fact and Conclusions of law discusses God, Country, Food or a history of language none of that applies. That tiny infinitesimal segment pronouncing the ruling is the only portion that becomes precedent.

Having discussed what a precedent is and is not I must now explain the Doctrine through which it lives. It is called the Doctrine of Stare Decisis.

B4E at page 1577 defines Stare Decisis as follows:

A doctrine is a rule, principle, theory or tenet of the law that is widely used, known and accepted amongst the legal professionals. Technically a doctrine is just policy, albeit policy that was created by a court and has been accepted for years and is treated as though it were law. Treating something as though it were, doesn’t make it so..

To sum it up a doctrine is a policy of the court that supposedly is based on a previous decision where the issue was adjudicated with the court receiving evidence from both sides and then applying the appropriate law to the facts. Not all precedents become Doctrine but all Doctrine resulted from precedents.

Policy today allows all decisions to act as precedent, rather than a ruling case being determined and stated by the appellate courts to hold as precedent in that circuit.

The Doctrine of Stare Decisis deals only with fully litigated cases. Remember this quote found in the definition:

The doctrine is limited to actual determinations in respect to litigated and necessarily decided questions, and is not applicable to dicta or obiter dicta. In re Herle’s Estate, 165 Misc. 46, 300 NYS 103.

Prohibiting the use of Summary Decisions as a precedent. The writer has checked and most of the cases being used by the government today were Summary Procedures. So now we need to define Summary Procedure:

Summary, B4E page 1604;

The definitions are to set the stage for presentation of IRC at §7852(a). The statute is entitled the Separability Clause.

IRC §7852(a)

1. Separability Clause. – If any provision of this title, or the application thereof to any person or circumstances, is held invalid, the remainder of the title, and the application of such provision to other persons or circumstances, shall not be affected thereby.

The statute at IRC §7852(a) is a negative pregnant and distinctly admits the denial of the application of the Doctrine of Stare Decisis and Precedents in totality to tax matters. This statute literally establishes the every man for himself mandate by Congress and in so doing further denies the Commissioner the use of his wins. The language provides that the IRS can come after the same taxpayer for the same circumstance for different tax periods. It further provides that even if Taxpayer A wins his action for a tax period, Taxpayer A may not rely on that win for a subsequent tax period and the agency can come after Taxpayer A again for any other period or circumstance. Taxpayer B cannot rely on Taxpayer A’s win for any reason.

Congress reserved the right to continue application of the internal revenue statutes whether or not defeated, i.e. held to be invalid against anyone. The concept being that what may be invalid regarding one set of circumstances for one taxpayer for one tax period, might not be invalid for another taxpayer for another set of circumstances for the same or other tax period. Every man for himself.

The statute was designed to protect and ensure longevity of the act. It prohibits one case from overturning the entire code. Statutes similar to it are to be found in virtually every title, both federal and state. In many instances it’s called Severability in stead of Separability, but it virtually always reads the same.

The United States Tax Court (USTC) is not a part of the federal district court system. It is a separate court with it’s own unique rules. One such unique rule is USTC Rule 142, Burden of Proof. This particular rule assigns the burden of proof to the taxpayer where not otherwise assigned by statute which allegedly creates a presumption of correctness on the part of the Commissioner (foot note). No such rule exists in the Federal Rules of Civil Procedure applicable in the federal judicial system, which includes both district and appellate courts. The federal district courts cannot rely on caselaw coming from the USTC given that the tax court presumes the Commissioner to be correct while the federal courts do not. For precedents to be valid the issues must be analogous and they simply cannot be. The issues justaciable in the two lower systems are so dissimilar as to be like comparing apples to oranges.

The tax court has exclusive authority to resolve disputes prior to assessment as excepted by the anti-injunction act, which cases are not, authorized to be heard in federal district court. Technically the tax court is supposed to provide a trial de novo of the issues, however because of so-called precedent the court will not usually look behind the stipulation of the existence of a deficiency created by the petitioner at the point of filing of the tax court case. The fallacy of the presumption appears to have been intentionally manufactured by the Supreme Court (foot note). A use of USTC caselaw in the district courts creates a bastardization of the federal precedent.

The point of this article has been to establish that precedents aren’t valid unless they were actually litigated in front of a plenary court; that summary decisions cannot be used as precedent; and there is a statute which actually prohibits the use of precedent and the doctrine of stare decisis in tax matters.

It has also been the historical behavior of Judge and Attorney alike to denigrate and berate the non-lawyer litigant. The claim is that they fowl up an already crowded system and create bad case law. Cases dismissed on a summary motion are not precedents, which is the fate of the bulk of the pro-se issues presented in federal district court. If these researchers were able to figure this out, why don’t the lawyers already know it? Why was the Supreme Court allowed to propagate fallacious presumptions without objection by a single officer of the court? Why do the lawyers go directly to caselaw instead of the law itself?

Anyone hiring a lawyer has the right to expect the attorney to actually know the law and obey it in the prosecution. The public at large should be able to rely on the good behavior of its judiciary. When the courts are creator and instigator of such heinous offenses as detailed here where do you go for your remedy. CONGRESS. Demand these judges and justices be removed from the bench.

It is the distinct pleasure of the writer to proffer this information in the hopes that it will inspire the reader to do some research on your own and defend yourself. At the very least the writer hopes you will write to your Senators and Congress people and promote change on the basis of this article.

Foot Notes