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A CRIMINAL COMPLAINT

AGAINST SECOND CIRCUIT APPEAL JUDGES

WILFRED FEINBERG - ROGER J. MINER AND - WILLIAM H. TIMBERS

FOR HAVING CONSPIRED TO DEPRIVE ME OF NUMEROUS RIGHTS SECURED TO ME

BY THE LAWS AND CONSTITUTION OF THE UNITED STATES

IN VIOLATION OF 18 U. S. C. 241


The above three judges wantonly and in obvious BAD FAITH misstated both law and facts in Schiff v. U.S., 919 F2d 830, so as to deprive me of numerous rights secured to me by the laws of the United States and the United States Constitution in flagrant violation of 18 U.S.C. 241.Some of the rights they deprived me of were as follows:
1. My right to have a jury trial when I sued the government to recover funds the IRS had seized form me without benefit of hearings or court orders of any kind, as provided by 26 U.S.C. Sections 7422 and 7454.
2. My right not to have property seized in payment of taxes unless I was made "liable" by statute for the taxes claimed, as provided by 26 U.S.C. 6331.3. My right not to be compelled to pay a federal tax unless it is imposed and collected pursuant to Article 1, Sect. 2, Clause 3 and Article 1, Sect. 9, Clause 4 of the Constitution, which provides for direct taxes; or Article 1, Sect. 8, Clause 1 which provides for indirect taxes.4. My 5th Amendment right not to be "deprived of ...property without due process of law."5. My right not to be "deprived of ...liberty without due process of law," including my rights to appeal adverse lower court decisions, as provided by: the 5th and 6th Amendments, various statutes, and numerous court decisions. However, these three "judges" conspired so as to prevent me from appealing:

a. an adverse ruling of a petition for Habeas Corpus;

b. an adverse decision by a Connecticut District Court that I had violated the terms of my probation;

c. an adverse decision by a Connecticut District Court of a Corum Nobis petition I filed seeking a reversal of a prior conviction on the basis of a subsequent Supreme Court decision;

d. an appeal of an erroneous Tax Court decision;because I could not pay an unwarranted civil sanction, contrived for these and other purposes.AND HERE IS THE PROOF On the basis of a totally fraudulent and contrived decision, Schiff v. U.S., which sustained a lower court's granting of a summary judgment to the United States in connection with its summary seizure of over $200,000.00 of my property (allegedly pursuant to 26 USC 6331) - including a summary judgment on the issue of my alleged committing of tax fraud for the years 1976, 1977, & 1978. In addition to their criminally sustaining a summary judgment on these issues, these "judges" then went on to rule that my appeal was frivolous (when it was not), so that they could impose totally unwarranted civil penalties on me for approximately $6,000.00, which these "judges" knew I could not pay, since they had already granted me informa pauperous status for the appeal. These three "judges" did all of this because:

1. they knew I could easily prove to any jury that the IRS had - under color of law - blatantly robbed me of all the funds at issue; and because,
2. they did not want to be compelled to review (by way of a Habeas Corpus appeal) a prior Second Circuit decision (Schiff v. U.S., 801 F2d 108) which sustained a criminal conviction even though the trial court instructed the jury that it could convict me even if the government did not prove its case!!(And that lawless Second Circuit decision was the subject of a"Journal of Taxation," article, attached as Exhibit A.)Since the Second Circuit had already granted me informa pauperous status, these three "judges" had to know that I could not pay the sanction imposed. But this consideration is irrelevant, since I had a right to appeal a criminal matter regardless of what had transpired in a civil matter. But as a result of this unwarranted civil sanction, these three "judges" caused the Second Circuit not only to refuse to hear a pending appeal of an adverse Habeas corpus ruling, but several other criminal matters as well, including : an appeal of a Corum Nobis attacking a prior, criminal conviction, and a totally erroneous finding that I had violated the terms of my probation - in which the trial court neither conducted a revocation hearing nor provided me with counsel as required by law; but sentenced me to a two year jail term anyway.
 

I. RIGHT TO A JURY TRIAL DENIED

The decision we are now considering Schiff v. U.S., 919 F2d 830, was nothing but a tissue of lies from start to finish as this complaint will prove. My law suit involved my attempt to recover over $200,000.00 which the IRS seized (actually extorted from third parties) from me, allegedly pursuant to Section 6331, I had no hearing prior to these seizures, so naturally I was entitled to a post seizure hearing, actually a trial - especially since $50,000.00 of this amount involved the government's claim that I had committed civil tax fraud for all the years at issue. And in any refund suit brought pursuant to 26 USC 7422, the government had the burden - BY LAW - of proving the civil fraud alleged, as required by 26 USC 7454.
As stated in 26 USC 7804:
Nothing ...shall ...impair any right or remedy, including trial by jury to recover any internal revenue tax alleged to have been erroneously or illegally assessed or collected ...(emphasis added)
However, I not only didn't get the "trial by jury" called for by this statute - I did not even get one court hearing. In other words, these three "judges" ruled, that despite the U.S. Constitution and all of our law schools and fancy court houses, the US government can still seize private property just like Atilla-the-Hun.


II.
ESTABLISHING THAT THE DECISION, SCHIFF V. U.S., 919 F.2D 830, WAS
NOTHING BUT A TISSUE OF LIES FROM START TO FINISH

A   Neither the Government, the Trial or Appellate Courts
Could Identify the Law Establishing the Tax "Liability" at Issue
 

In my underlying civil law suit, I claimed (among other things) that the funds at issue were seized in payment of a tax for which no law made me "liable". In discovery, I asked the Justice Department to identify the Code section making me "liable" for the taxes claimed. The Department's answer, shown in Exhibit B, was that the "liability" was contained in Code sections 1, 3, 61, 63. That answer was a lie - since the word "liability" does not appear in any of those statutes. Proof that the Justice Department knowingly lied with respect to this claim is supplied by the IRS itself, as shown in Exhibit C. When confronted with the same interrogatory, IRS lawyers did not cite any of those statutes cited by the Justice Department. Indeed, they could not identify any such statute at all, but merely claimed that my "history of unsuccessful litigation proves that there is such a things as an income tax liability."

What both responses "proved" however, was that my contention that no statute made me "liable" for the tax concerning which all of the funds at issue had been seized was correct. And this issue was totally ignored in the instant decision - since my contention could not be refuted on any basis. Proof of this can be seen form the fact that though their decision mentions an "income tax liability"; nowhere in that decision do these three "judges" identify the statute in which such a "liability" appears.

B. PROOF THAT THESE THREE LIED WITH RESPECT TO THE CONSTITUTIONAL NATURE OF THE TAX AND THE POSITIONS OF THE LITIGANTS WITH RESPECT TO THIS ISSUE

In their ruling these three "judges" discussed this issue in the following manner:

Initially, Schiff's contentions that the imposition of a validly enacted income tax by Congress violated the taxing clauses of the Constitution have been rejected previously. E.G. Brushaber v. Union Pacific RR, 240 U.S. 1
This claim was a complete fabrication, since I made no such claim. Indeed, in all of my pleadings, I went out of my way to emphasize that I was not contending that the income tax "laws" themselves were unconstitutional; since the tax, I argued, was "voluntary", not "compulsory". So if I argued that the income "tax" was "voluntary" by statute, why would I also claim that such statutes were unconstitutional? What I did claim; however, was that the tax was extracted in violation of law ( and the Constitution) - not that the "laws" themselves were unconstitutional.I claimed in my law suit that the tax was extracted from me:
1. in violation of the taxing clauses of the Constitution;
2. without any lawful assessment ever having been made;3. in connection with a "tax" for which I had no statutory "liability"; and that,4. I had not committed the civil fraud alleged.To prove my first claim, I asked the Justice Department to identify into which of the Constitution's three taxing clauses the income tax fell.  Its response was that it, simultaneously, fell into all three clauses. Since these three clauses establish two different types of taxes (direct taxes, subject to the rule of "apportionment"; and indirect taxes, subject to the rule of "uniformity"), - such a claim was ludicrous on its face; and tantamount to an admission, I argued, that funds at issue were not seized pursuant to any of these clauses.

So the court's decision totally misstated my claim and totally ignored the government's claim that it seized the funds to satisfy a tax that was imposed both as an indirect and direct tax at the same time!In addition, I cited the Brushaber decision as holding that the income tax, in view of the 16th Amendment, could be constitutionally imposed, without apportionment, as an excise tax. However, it was the government's claim that the tax - the Brushaber decision not withstanding - was also imposed as a direct tax, which, of course, was not only contrary to the Brushaber decision, but factually impossible. I even supported my claim with a report issued by the Congressional Research Service (attached as Exhibit D) which states,

"WHAT DOES THE (SUPREME) COURT MEAN WHEN IT STATES THAT THE INCOME TAX IS IN THE NATURE OF AN EXCISE TAX?" - which the report goes on to explain is "a tax levied on the manufacture, sale, or consumption of a commodity or ...or, privileges often assessed in the form of a license or fee." And, I argued, since the income tax is not imposed on this basis, the funds at issue were seized in clear violation of the Supreme Court's Brushaber decision. However, the Court in holding that the Brushaber sustained the income tax as constitutional (remember, I never argued that it wasn't) - fraudulently omits the basis for its so holding, which was that, because of the 16th Amendment, the income tax could be imposed as an excise tax (and so did not have to be apportioned) as opposed to the 1895 Pollock decision, which held the Income Tax Act of 1984 unconstitutional, as being a direct tax, and unconstitutional for want of apportionment. So in holding that the current income tax falls within the Brushaber decision, these three lying "judges" held that the income tax is being imposed as an excise tax - which it is not. They believed they could get away with this falsehood because almost nobody (including most lawyers) know what the Brushaber Court actually held. But these three criminals clearly knew what it held, because I went to great lengths to explain it to them.So, in holding as they did on this issue, these three "judges":

1. deliberately lied about what I had contended;
2. deliberately lied about the meaning and relevance of the Brushaber decision; and, in doing so,3. held that the government can forcibly extract a tax that is imposed neither as an excise tax nor as an apportioned direct tax.And in doing so, these three criminals knowingly and willfully deprived me of a constitutional right not to be compelled to pay a tax that does not fall into either class of taxes provided for in the U.S. Constitution - in blatant violation of 18 USC 241.
 

C. HERE THESE THREE TOTALLY MISSTATE THE LAW, THE ISSUE WITH RESPECT TO "SUBSTITUTE RETURNS" AND THE LEGALITY OF THE ASSESSMENTS AT ISSUE

In proving claim number 2, page 4, I secured from the government IRS Forms 4340 (attached as Exhibit E), which contained the claim that "Returns" were "Filed" for all of the years at issue; however, I filed no returns for any of these years. When I asked the government to produce the "Return(s)" it claimed I "Filed", it supplied the "Substitute Returns" shown in Exhibit F. When I asked the government to state its statutory authority for preparing these "Returns", it replied that its authority was Code section 26 USC 6020(b).

However, Code section 6020(b) provides that only returns "subscribe by the Secretary shall be prima fascia good and sufficient for all legal purposes." Since these "Returns" were not "subscribed" to BY ANYONE! (let alone by the Secretary of the Treasury) -- they were, OBVIOUSLY, not prepared in accordance with Code section 6020(b) and thus were not good for any legal purpose, thus establishing, as a matter of law, my claim as shown in number 2, on page 4. When I moved for a summary judgment on this and other grounds (There was no contested issue of fact on this issue: the government had already admitted making the assessments from invalid returns.), the government now changed its claim and stated that the assessments were made from "dummy returns" - and the district court based its decision (Conn, Civil No. N-86-354(WWE)), (excerpts attached as Exhibit G) on this new, government claim. For example, in his decision, Judge Edginton writes as follows:

In the instant case, the Government has submitted proof that the Examination Division of the IRS prepared "dummy returns" on or around November 9, 1982....
and
In light of the foregoing, plaintiff's argument that the IRS erred in determining a deficiency by preparing a "dummy return" and then issuing a statutory notice of deficiency must fail as a matter of law.
(And here the trial court even lies about the totality of my claim on this issue. I never claimed that the IRS merely "erred" in preparing a "deficiency" from "dummy returns". I claimed that the IRS' claim that it prepared a "deficiency" was also a lie: that, in reality, they had estimated my alleged "total tax" [which no statute gives them the authority to do] and then fraudulently claimed that this was a "deficiency", in violation of Code Section 6501(c)(3) and other statutes.)Indeed, Judge Edginton refers to "dummy returns" no less than four times in his decision and justifies the IRS' assessments on their preparation. In my appeal, I argued that this position was fallacious on at least four grounds:
1. The government had initially claimed to have made the assessments pursuant to Section 6020(b), and by all the rules of civil discovery it was bound by that claim and was not permitted to change it simply because I had so thoroughly refuted it;
2. No Code section or Treasury regulation provided for the preparation of "dummy returns";3. The courts had specifically held that "dummy returns" do not have "the status of a return". (Phillips v. C.I.R., 1986 T.C. 433)4. Treasury Department publication No. 7081(3-86) stated that "A 'dummy return' is simply a copy of return filed by the taxpayer", and that, "It is not a substitute for return". Therefore, the district court's claim that the alleged "dummy returns" were substitute returns was a false claim. Besides, since I did not file a return there could be no "copy of a return filed", and thus no "dummy returns", in my case was even possible.Therefore, I argued in my appeal that the district court's claim that the assessments at issue were made form valid filed returns was wholly without foundation.In rejecting my claim on this issue, these three wrote in their decision, as follows:
We turn next to Schiff's claim regarding the propriety of the IRS' assessments. First Schiff contends that since 26 USC 6201(a)(1)(1988) requires that assessments be made from returns or lists, that the IRS must prepare a substitute return pursuant to 26 USC 6020(b)(1988) prior to assessing deficient taxes. It is clear, however, that when a taxpayer does not file a return, it is as if he filed a return showing a zero amount for the purposes of assessing a deficiency. There is no requirement that the IRS complete a substitute return.
 A simple reference to the trial court's decision proves that I never "contended" any such thing. Indeed, I argued that where an individual refused to voluntarily assess himself by not filing, the only legal recourse left to the government was to seek to collect the tax by way of a civil law suit, as provided by Code section 6501(c)(3). So this paragraph is a total fabrication from start to finish.Why would I claim, as these three liars contend, that the IRS had to prepare substitute returns WHEN THE RECORD SHOWS THEY HAD ALREADY PREPARED THEM! My claim, as specifically referred to by the District court in Exhibit F, was that the "substitute returns" the IRS prepared (and upon which the district court based its decision) were not authorized by law.

So after I proved this, these three scoundrels reversed our positions and held it was I who claimed that substitute returns had to be prepared - when that was the EXACT CLAIM made by the IRS, the Justice Department and the district court However, if "returns" were not "required", as these three "judges" now claimed - then why did the IRS prepare them? (Refer again to Exhibits E & F) and why did they include entries on my Form 4340 that returns were "filed"?

And why did Judge Edginton base his decision on the preparation of "dummy returns"? - A claim that these three culprits totally ignored in their decision, even though that was the specific issue I raised on appeal? The reason why "substitute returns" were prepared by the IRS is because Code Section 6201 provides that the IRS can only assess taxes...as to which returns or lists are made." And if no "returns ...are made", no income taxes can be assessed - which is why the IRS went to all the trouble of preparing "substitute returns" and recording on my Forms 4340 that returns had been "filed".So, in claiming that the government can make assessments without returns, these three criminals:

1. disregarded Judge Edginton's claim in the decision from which I appealed, that the assessments at issue were made from "dummy returns";
2. deprived me of the protection and privileges afforded me by both Code Sections 6201 and 6502(c)(3), in violation of 18 USC 241;3.totally lied about the nature of this issue as contained in the underlying briefs and as held in the district court's decision from which I appealed; and4. lied about the government's authority to make original assessments without having either "returns" or "lists".In addition, it was not a "deficiency" that was at issue here (since no prior assessment had been made), but my alleged "total" tax liability - a figure that no statute gives the IRS the authority to determine. So, if any proof were needed establishing the duplicity and criminality of these three "judges" what more proof than how they lied about this entire issue is needed?

D. HOW THESE THREE DISREGARDED BOTH THE LAW AND THE FACTS AND LIED ON THE ISSUE OF WHETHER OR NOT I COMMITTED TAX FRAUD

Approximately $50,000.00 of the property taken from me was to satisfy a civil fraud penalty based upon an unproven claim that I had committed civil tax fraud for the years 1976, 1977, and 1978 - and in any law suit for recovery, the government has the burden of proving the fraud alleged - pursuant to 26 USC 7454 and EVERY BIT OF CASE "LAW" ON THIS ISSUE. There is absolutely no legitimate way that any judge can award a summary judgment on a hotly contested issue as whether or not someone has committed the civil crime of tax fraud; consequently, there is no point in my even attempting to prove the obvious. Suffice it to note, that in their decision these three seek to justify their sustaining of a summary judgment by claiming, "Since a summary judgment was granted in favor of the government, we consider the evidence in the light most favorable to Schiff", citations omitted.

How could they have viewed the "evidence" in the "light most favorable to Schiff" when they merely accepted government's (contested) allegations on this issue without receiving a shred of "sworn" testimony nor any documented evidence (received pursuant to the Rules of Evidence) on this issue?

However, in this case, both claims (that I committed tax fraud and they considered the evidence "in the light most favorable to Schiff") were both bold face lies on a variety of grounds. First of all, the documents that imposed the civil fraud penalty (Exhibit H) accused me of committing no act of evasion; and secondly, the documents were not even signed, although they required FIVE SIGNATURES to be legally valid! In justifying the fraud penalty the Second Circuit simply ignored both of my claims that:

1. the documents imposing the fraud penalty were invalid - as a matter of law - for want of signatures; and
2. that none of the documents nor underlying, district court decision accused me of committing any affirmative act of tax fraud - without which, not tax fraud could have even been validly alleged, much less "proven".Proof that both the fraud penalty and the claim that the "evidence" was considered in "the light most favorable to Schiff" were both blatant lies is supplied by the appellate decision itself - which states as follows:
Schiff is precisely the sort of taxpayer upon whom a fraud penalty for failure to pay income taxes should be imposed.
and that,
Summary judgment was justified on the issue of whether civil fraud penalties were properly assessed because of his failure to file returns for the years 1976 through 1978.
Note, NO AFFIRMATIVE ACT OF EVASION IS EVEN ALLEGED IN THIS DECISION!! The fraud penalty was imposed and sustained merely on the basis that I failed "to pay income taxes" and failed "to file" for the years at issue. However, these "judges" certainly knew that such OMISSIONS do not constitute civil tax fraud on any basis. (See Spies, 317 U.S. 492; and Sansone, 380 U.S. 343). Indeed, the Second circuit had itself reversed several tax evasion convictions on the grounds that no affirmative act of evasion had been proven.

For example, in U.S. v. Romano, 938 F2d 1569, the Second Circuit reversed a conviction because it held that "Mere failure to file a return and to pay tax is insufficient for conviction of tax evasion"; and further, "Since the element of an affirmative attempt to evade taxes was not established beyond a reasonable doubt, the government failed to establish the charged crime of tax evasion." And since the elements of civil tax fraud are exactly the same as the elements of civil fraud, it is crystal clear that these three scoundrels knew that, in my case, the government had TOTALLY failed to establish the civil offense of tax evasion, and that an appeal was totally justified JUST ON THIS ISSUE ALONE! Thus, in addition to robbing me of the rights I have already enumerated, these three scoundrels also robbed me of my constitutional right to be treated equally under the law.

III. IN ADDITION TO LYING ABOUT EVERY ISSUE RAISED IN THIS APPEAL
THESE THREE NOW PROCEED TO IMPOSE TOTALLY UNWARRANTED CIVIL SANCTIONS

However, not only did these three "judges" affirm the district court's decision (which I had proved to be erroneous on a variety of grounds) but, piling falsehood on top of falsehood, they went on to fine me approximately $6,000.00 for allegedly filing a "frivolous" appeal. HOWEVER, MY APPEAL WAS EMINENTLY JUSTIFIED ON A VARIETY OF GROUNDS. However, in addition to rendering a decision that stood both truth and justice on their heads; these three criminals now refused to consider a Habeas Corpus appeal which was than pending before that court, until I paid this new, civil sanction. And since I had been granted informa pauperis status with respect to making both appeals, the Second Circuit knew that I did not have the money to pay the sanction imposed - so it refused to hear an appeal of a criminal matter on the grounds that I was refusing to pay a (totally unwarranted) civil sanction that the court knew I could not pay. However, even if I had the money to pay the sanction - there is no legal precedent that would allow appeals courts to sell criminal justice on this basis. And the U.S. Attorney for the State of New York can not cite any legal precedent for such a position.
 

IV. IN IMPOSING UNWARRANTED CIVIL SANCTIONS THESE THREE CRIMINALS NOW PROCEED TO ROB ME OF ALL APPEAL RIGHTS BOTH ON CRIMINAL AND CIVIL ISSUES

From this point on these criminal judges succeeded in preventing the Second Circuit from accepting any and all of my appeals on a variety of adverse, lower court rulings. One such ruling was an appeal of an adverse Habeas Corpus ruling which concerned my alleged 1985 conviction only after the trial court, instructed the jury (in a supplemental instruction given to it after it had announced itself deadlocked,) that it could convict me of tax evasion EVEN IF THE GOVERNMENT DID NOT PROVE THE ACT OF EVASION I WAS CHARGED WITH COMMITTING. Clearly, no Russian dissident was ever more blatantly framed than this. Note that the article in the "Journal of Taxation" (Exhibit A) noted that this instruction violated 40 years of "settled (tax) law", and meant that I was never really convicted of the crime of tax evasion, though I was locked up for four years for allegedly committing such a crime. The Second Circuit also refused to hear appeals of mine on a variety of other adverse lower court rulings, both involving criminal and civil matter, as identified in the first two pages of this complaint, because of my inability to pay a totally unwarranted and egregiously imposed civil sanctions.It is clear that these three "judges" are even bigger criminals than most of those who appear before them.

At least those persons don't take oaths to obey the law - but these three criminals did, and then they proceeded to break the laws and constitutional provisions that they pledged themselves to uphold and protect. This factor alone makes them bigger criminals than the usual kind.In this complaint I have documented the fraud and deceit that these three engaged in, in order to deprive me of numerous rights and privileges secured to me by the laws and constitution of the United States - in violation of 18 U.S.C. 241. I am perfectly willing to testify before a grand jury concerning all of these charges, and look forward to doing so, eagerly. You can not refuse to investigate these allegations simply because the perpetrators are appellate court judges.

Their crimes - as I have documented here - are substantial. They caused me to be needlessly locked up for approximately two years and to be needlessly subjected to stringent conditions of probation for another two years. They conspired to allow the government to extort $30,000.00 from me by way of a committed fine; in addition to the some $225,000.00 they conspired to deprive me of by lawlessly sustaining a summary judgment of a summary seizure - as extensively documented here. Many Americans serve time for stealing a whole lot less, while not depriving anyone of their liberty. How many years would people get for such crimes, if they weren't federal judges?I expect to hear from you concerning the actions you will be taking with respect to these charges, and be notified of when I can expect to testify before a grand jury concerning them.I declare under penalty of perjury pursuant to 28 USC 1746 that the foregoing is true and correct.May 6, 1994 

Irwin A.Schiff
444 E, Sahara Ave.
Las Vegas, NV 89104

1-800-TAX-NO-MORE   paynoincometax.com


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