Elements of a Case or Controversy

There are three essentials to a case or controversy that goes before a court, or that must be resolved in an administrative due process forum.

First is facts of any given circumstance or event. Unless or until we have facts in place, there is nothing a judicial officer can consider.

In all cases, facts must be verified by a competent witness.

Consider a criminal trial. The prosecuting attorney might load the evidence table with the gun a murder was committed with, empty shell casings, and all manner of evidence. Yet until he puts a witness on the stand who qualifies as an expert witness or a witness who has first-hand knowledge of facts relating to the case, he has nothing.

The same is true with traffic tickets, tax disputes or anything else. Unless or until there is a competent witness who verifies facts via testimony, there is no evidence before the trier of fact, whether the trier is a judicial officer or a jury.

Testimony can be submitted by (1) affidavit, (2) deposition, or (3) direct oral examination.

When an attorney addresses a court, what he has to say does not qualify as testimony. He might argue points of law, procedure, the credibility of witnesses and other such matters, but he is not a competent witness.

Next, law has to be established. Opposing parties each submit what they believe the law is. Where there is disagreement concerning law, a judicial officer is usually responsible for declaring what the law is.

Once these two essentials are in evidence or on the record, it is necessary to prove application of law to the facts.

Here is a question that might give people involved in tax matters cause for thought: Is a revenue agent a competent witness with first-hand knowledge of facts necessary to verify a tax liability?

In most cases, no. The revenue agent works primarily from declaratory documents submitted by third parties. The revenue agent normally doesn't have first-hand knowledge of the fact circumstance of the third party or what underlying presumptions the declarations are predicated on. Therefore, the third party responsible for submitting any given document is the competent witness, not the revenue agent.

Most people who are confronted with tax issues engage the argument somewhere down the line rather than going to the genesis of the situation. For example, when someone receives a notice of deficiency, he might take the matter to Tax Court to argue about deductions and the like rather than asking obvious questions: Am I liable for Federal income tax to begin with, and if so, which one? What authority does IRS have to administer the tax that I allegedly owe? What evidence of liability does IRS have, and what witness with first-hand knowledge of facts does IRS have?

Somewhat the same thing happens when IRS attempts to foreclose notices of lien.

If we were riding a train from New York to Los Angeles, a lien foreclosure would probably be at Phoenix. In other words, the victim is routinely deprived of most due process rights via what amounts to fraudulent procedure.

Tim Richardson of Oregon helped my orientation with two or three pleadings that focused on due process rights, particularly those secured by the Sixth Amendment: We are entitled to know the nature and cause of action, we are entitled to confront adverse witnesses, and we are entitled to compel testimony. Yet because of IRS' routine fraudulent procedure, victims are invariably deprived of these rights. If they were on the train when it left Grand Central Station, they didn't see the light of day until it pulled into the Phoenix station.

Seldom does the victim know the "nature" of the action. In other words, what are the taxing and liability statutes, along with implementing regulations? What makes him a person liable?

And who is IRS' competent witness with first-hand knowledge of facts?

Has there been a procedurally proper assessment, which is a minimum requirement for a Federal tax lien to be legitimate?

The civil action to enforce a Federal tax lien leaves these questions in the murky area of presumed fact. And if you didn't raise the issues or establish fact contrary to that presumed by the lien, the judicial officer will probably do everything possible to prevent you from raising the issues in the foreclosure action.