Will banks hand over your money without a warrant?
FOR EMBARGOED RELEASE DATED NOV. 25, 2001
THE LIBERTARIAN, By Vin Suprynowicz
Will banks hand over your money without a warrant?
Las Vegas resident Irwin Schiff contends the Internal Revenue Service (whatever that is -- no record can be found that the U.S. Congress ever authorized the creation of any such agency, as even the IRS admits) doesn't even adhere to its own codebook of rules and procedures, instead depending on the inappropriate application of the law as they struggle to keep America's workers and employers buffaloed into paying an "income tax" (actually a wage withholding tax) which is mandatory only for aliens working on these shores and Americans working overseas.
Most members of the burgeoning truth-about-taxation movement contend that when various IRS commissioners have said the flow of tax revenues is dependent on "voluntary compliance," they meant just that -- we all "volunteer" to take part in a government Ponzi scheme promising us various benefits when we sign a W-4 form, requesting our employers to withhold from our paychecks ... and are thus equally free to "not volunteer," is we so choose.
Individual IRS employees seems to look at this a bit differently, of course, occasionally charging folks with "failure to file," while demonstrating a puzzling reluctance to point to the individual statute that makes it mandatory for any individual American, earning wages on these shores, to do so.
They'll even send your bank a "Notice of Intent to Levy," which any bank employee calling the IRS will be told means they're supposed to bundle up your money and send it to the IRS, because you "failed to pay your taxes."
But that's not true. All such a bank employee has to do is ask why "paragraph A" of the legal code citation is always deleted from the "authorizing" fine print on the back of the IRS' standard "seize-his-paycheck" Form 668W. The reason the citation instead starts with "paragraph B" is that paragraph A specifies that said law authorizes the use of such onerous methods only against employees of the federal government.
("Sec. 6331. Levy and distraint. TITLE 26, Subtitle F, CHAPTER 64, Subchapter D, Sec. 6331, STATUTE: (a)Authority of Secretary: If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401(d)) of such officer, employee, or elected official. ..."
(See the web site www.getawarrant.com -- which contains a citation from Clark County (Nevada) Magistrate Victor Miller's historic opinion on this matter in the case Williams vs. Boulder Dam Credit Union.)
Furthermore, in its wise decision in Gould vs. Gould, 245 US 151, (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=245&invol=151), t he U.S. Supreme Court ruled that "In the interpretation of statutes levying taxes it is the established rule not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operation so as to embrace matters not specifically pointed out. In case of doubt, they are construed most strongly against the government and in favor of the citizen."
Thus, the paragraph above means paycheck and bank account levies can be made only against "any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia."
Furthermore, under Title 26, United States Code, the Social Security tax is imposed in chapter 21, subtitle C, in which Section 3121 defines "employment" as "any service, of whatever nature, performed (A) by an EMPLOYEE for the person employing him, irrespective of the citizenship or residence of either, (I) WITHIN THE UNITED STATES" ... and then continues in Section 3121(e)(2) to declare that, for purposes of this specific statute, "The term 'United States' when used in a geographical sense includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam and American Samoa."
Which means, according to Gould vs. Gould: "Includes only."
So, under the bizarre definition of "United States" adopted to purposely mislead us in this part of the Internal Revenue code, this law could not possibly apply to wages earned by Las Vegas resident Irwin Schiff, if he is neither a resident nor a citizen of "the Virgin Islands, Guam and American Samoa."
Besides which, the tax regulations to enforce the aforementioned paycheck seizure statute -- applying only to federal employees -- are not promulgated under 26 CFR (the Code of Federal Regulations for Title 26 -- the "Internal Revenue Code"), but appear instead under 27 CFR "Alcohol, Tobacco and Firearms." Thus, they could apply only to taxes due on those excise taxable products. And no one has so far contended Mr. Schiff is either a brewer or machine gun manufacturer.
# # #
So, when Las Vegas IRS agent James Gritis sent a "Notice of Intent to Levy" to the local Bank of America, urging the bank to send him some $8,000 contained in Irwin Schiff's bank account, and the bank did so, Mr. Schiff filed suit against the bank (case A-440323), contending they had violated their fiduciary responsibility and private contract to hold his funds safe, turning them over to third party without demanding to see a valid court Warrant of Distraint -- the court order as required by law before the government can take the property of a citizen.
Representing the bank, attorney Kirk Lenhard of the Howard Hughes Parkway law firm Jones Vargas, filed a motion to dismiss.
On Nov. 13, Clark County District Court Judge Allan R. Earl threw out that motion, instead stating he was anxious to see Mr. Schiff depose IRS Agent James Gritis, to determine if such seizures really comply with the law, and whether Mr. Gritis has a proper, written delegation of authority from the Secretary of the Treasury to grab people's bank accounts.
"I think they're going to ship him out of the country so I can't depose him," Mr. Schiff told me last week from his Freedom Foundation office on East Sahara Avenue in Las Vegas, from which he sells $38 books purporting to teach folks how to "set themselves free" from the IRS.
"Judge Earl was a very nice judge. ... Judge Earl asked me, 'You're saying the IRS has no authority to attach or seize property?' I said yes; I offered to give him the (IRS) code book. The law says it shall be lawful for the Secretary to do these things. Judge Earl asked, 'You mean to say the Secretary has to go around in person?' I said, 'No, he can delegate it, but he never delegated it to J.L. Gritis.'
"He said I was in the wrong court, I ought to be in tax court. I pointed out to him that tax court has to do with determining how much you owe in taxes; this is a simple case of breach of contract. In the depositor's agreement Bank of America says that they will comply with all federal and state law. I said, 'In my view, Gritis doesn't have the delegation of authority.'
"The bank in its motion to dismiss didn't even claim he had the delegation of authority. I said, 'If Gritis has the delegation of authority the bank wins and the bank can go after me for court costs. But if he can't produce it then I win.' Gritis won't be able to produce any delegation of authority; by statute he can't even have it. I'm suing the bank for triple damages. I even sent the bank a sample of what a delegation notice looks like. I even sent them a draft letter they could send him asking for his delegation of authority.
# # #
"The Bank of America along with banks all over the country honor these phony notices of levy. I think what really persuaded the judge is, I said that on the notice of levy that the bank got, Gritis is shown to be a revenue officer. Suppose it showed he was a custodian, would the bank still have honored it? Ask the defendant if they would have honored the notice of levy if it said he was a custodian. He (The judge) never asked them that question, so I just took the bull by the horns. What evidence does the bank have that revenue agents have any more authority than IRS custodians? They have no proof.
"We'll take a deposition of Gritis and he won't be able to present a delegation of authority; he has no delegation of authority," Mr. Schiff asserts. "As a matter of fact it was Gritis some years who who sent me a summons to bring all my books and records in. I went down and told him to show me his authority to subpoena my books and records. I asked to see his job description and he got it and there was nothing in it that showed that authority. That was more than two years ago and they've never done anything about it.
"There is no statute in the IRS code that requires anyone to keep books and records. Go to any tax attorney and he'll tell you to go in with a truck if you have to to show them all your books and records (as ordered), but there's no such requirement in the law."
# # #
I asked Schiff how he believes the case will end up -- don't our courts these days always find a way to prop up the IRS, no matter what the law actually says?
"I wouldn't be surprised if (the Bank of America) calls me, because if word gets out they took my money illegally, do you have any idea how much they've turned over in the past six months? Every one of those people can sue them.
"But I'm suing them for triple damages plus the eight grand, and I'm not going to settle till I get to depose Gritis.
"But this is how ridiculous this IRS thing is. Why should the Bank of America be put in a position where they have to incur costs? ... Once I get the money I'll offer to sue the IRS on the bank's behalf because the notice of levy was a fraud, on the back of the form they purport to reproduce the authorizing statute but they leave out paragraph A; that's fraud.
"They say anyone who fails to turn over the property after a levy may be liable, but it's not a levy. A levy means to seize. On the back of the notice of intent to levy, when they talk about you have to respond to a levy, it doesn't say respond to a 'Notice of Levy.' But the average person doesn't know the difference. If an IRS agent seizes a boat or a car, obviously they have to turn it over to the government. A levy only involves the boat owner and the IRS; there is no third party involved. ...
"They (the IRS) should be charged with mail fraud; they leave off the back of the form those section of Section 6331 which would inform the recipient that that law applies only to federal employees, and then they put on provisions which don't apply. I would love to sue the federal government on the bank's behalf."
No date has yet been set for the deposition of IRS agent James "J.L." Gritis, who could not be reached for comment at his Oakey Drive office at noontime last Wednesday (he's away till the 28th.) Multiple attempts to reach an attorney who could explain the bank's position at the Jones Vargas law firm between Nov. 15 and 21 also proved unsuccessful.
Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. To receive his longer, better stuff, subscribe to his monthly newsletter by sending $72 to Privacy Alert, 561 Keystone Ave., Suite 684, Reno, NV 89503 -- or dialing 775-348-8591. His book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available at 1-800-244-2224, or via web site www.thespiritof76.com/wacokillers.html.
Vin Suprynowicz, vin@lvrj.com
"When great changes occur in history, when great principles are involved, as a rule the majority are wrong. The minority are right." -- Eugene V. Debs (1855-1926)
"The whole aim of practical politics is to keep the populace alarmed -- and thus clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary." -- H.L. Mencken
