Attach 1 - Memorandum Rev 33

Case 4:09-cv-00037 RRB
Attachment 1
Memorandum in Support of Motion to Reconsider
Comes now Donald Louis Hymes and Rita MariNa Hymes (“the Hymes”) with
this Memorandum in Support of Motion to Reconsider.
The Hymes have been harangued and targeted many years with fraudulent
documents by the Internal Revenue Service (“IRS”) wherein all are clearly fraudulent
documents and false securities. Along with the IRS fraudulent documents the Hymes
have suffered in that the Judges and Courts 1 have that supported these fraudulent
documents and fraudulent securities not disclosing to the Hymes the real facts and law
concerning the Notices of Federal Tax Liens (“NFTLs”) and Levies wherein absolutely
none of these documents have any “force and effect of law” creating any obligation or
duty upon the Hymes by Operation of Law, i.e. Obligation of Law2.
Judge H. Russell Holland and Bankruptcy Judge Donald MacDonald IV has
clearly invoked the Hymes right to proceed to the Judges of the United States Court of
Appeals for the Ninth Circuit that would have jurisdiction under Title 28, Section 1651
(all writs act), Article III Section 2, Clause 2, the common law, and under this Court’s
inherent supervisory power, to issue a Writ of Mandamus under Appellate Rule 21 in the
favor of the Hymes. The Writ of Mandamus would find that extraordinary circumstances
exist, Kerr v. United States Dist. Ct., 426 U.S. 394, 403 (1976) and find that Judge H.
1
Groh v. Ramirez, 540 U.S. 551, 563, 564 (2004) “If the law was clearly established . . . a
reasonably competent public official should know the law governing his conduct.” Citing
Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982); State of Ohio v. Davis, 584 N.E.2d
1192, 1196 (Sup.Ct. Ohio 1992) “Judges, unlike juries, are presumed to know the
law.”; Leary v. Gledhill, 84 A.2d 725, 728 (Sup.Ct. NJ 1951) “A court will in general
take judicial notice of and apply the law of its own jurisdiction without pleading or proof
thereof, the judges being deemed to know the law or at least where it is to be found,”
2
United States v. Howard, (1 Cranch C.C. 15) 26 F.Cas. 96, 97, 98 (1801)
Memorandum – Attachment 1 Page 1 of 39

Russell Holland and Bankruptcy Judge Donald MacDonald IV has acted wholly without
jurisdiction, has acted without cognizance of this class of Case arising under Article III in
all Cases in Law and Equity exercising the judicial Power of the Untied States under the
Authority of the United States and has so clearly abused power and discretion as to
constitute usurpation of power as held in Will v. Calvert Fire Insurance Company, 437
U.S. 655, 661 (1978), to wit:
“[T]raditional use of the writ in aid of appellate jurisdiction both at

common law and in the federal courts has been to confine an inferior court
to a lawful exercise of its prescribed jurisdiction or to compel it to exercise
its authority when it is its duty to do so.”
“Only exceptional circumstances, amounting to a judicial usurpation of power,
will justify the invocation of this extraordinary remedy." Allied Chemical Corp. v.
Daiflon, Inc., 449 U.S. 33, 35, 1 (1980) (quoting Will v. United States, 389 U.S. 90, 95,
(1967)). The Supreme Court has required that the petitioner show a clear and indisputable
right to relief. Allied Chemical, 449 U.S. at 35.
The Hymes are Motioning this inferior court to a lawful exercise of its prescribed
jurisdiction of the Laws of the United States, the Acts of Congress and arising under
Article III to exercise the judicial Power of the United States under the Authority of the
United States to Dismiss this instant Case as there is no legal or lawful Claim exists in
favor of the United States, the IRS or the UNITED STATES OF AMERICA.
Judicial Notice
The Hymes do hereby notice this Court and Judge Ralph R. Beistline shall take
judicial Notice of the all regulations or rules published in Federal Register 3 as mandated
3
Federal Register Act of 1935 - 49 Stat. 500-503, Sec. 7 “The contents of the Federal
Register shall be judicially noticed and, without prejudice to any other mode of citation,

by Congress, of all Notice of Federal Tax Liens filed against the Hymes, of all Levies
filed against the Hymes, of all Cases in this Pleading as to Law and Facts having
application, of all statutes and code sections and also judicial Notice under evidence Rule
201.
IRS’s Claims are Fraudulent
The IRS’s Claims are fraudulent for many reasons, but the most obvious first
issue is that within these NFTLs and Levies the IRS claims there has been numerous
“Assessments” against the Hymes or the Hymes have been “Assessed” including by not
limited to “DONALD L HYMES” and “RITA M HYMES” in Attachment 1A. For the
Hymes to have existing lawful and legal Assessments or to have been Assessed Congress
has mandated that Assessment be in accordance with “rules or regulations prescribed by
the Secretary,” i.e. 26 U.S.C. § 6203 – Method of assessment – “The assessment shall
be made by recording the liability of the taxpayer in the office of the Secretary in
accordance with rules or regulations prescribed by the Secretary. Upon request of
the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the
assessment.”
This is conclusively proven and legal evidence that no such Assessment has taken
place as NO “rules or regulations” has ever been promulgated by the Secretary or anyone
else to date under the Authority of 26 U.S.C. § 6203. In the Federal Register Act of 1935 4
Congress specifically established a permanent “Administrative Committee” 5 wherein the
duties were specifically delegated to this committee to promulgate regulations to
may be cited by volume and page number.”; 82 Stat. 1276 (1968); 44 U.S.C. § 1507.
4
49 Stat. 500-503 enacted July 26, 1935.
5
Section 6 @ 49 Stat. 501

implement the Federal Register Act, i.e. “The committee shall prescribe, with the
approval of the President6, regulations for carrying out the provisions of this Act.” The
current members of the “Administrative Committee” 7 were established on November 4th,
1972 as published in the Federal Register at 37 FR 23602.
Under the Authority of Administrative Committee of the Federal Register they
have promulgated 1 CFR § 21.438 on “Placing and amending authority citations”, which
defines the requirement of citations, i.e. statutory authorities, to be located behind the
Table of Contents for a complete CFR part or subpart, wherein there are no rules or
regulations promulgated for Assessment under the Authority of 26 U.S.C. § 6203.
Therefore, this precludes the existence of any Assessment or being Assessed
claims by the IRS in a NFTL proffered as evidence (sic) of the IRS’s Claim flows a
fortiori that all of the Documents filed as Claims as NFTL and Levies by the IRS in the
County or Borough and in this Case concerning the Hymes are fraudulent by Operation
of Law and as a matter of law as all material facts are precluding from existing, which is
Fraud upon the Court. The foundation of exposing the fraud of the NFTLs, Levies,
Assessments and filing of forms 1040, etc. are contained, infra. remembering also all of
6
44 U.S.C. § 1506 - For delegation of functions, vested in the President by section 6 of
the Federal Register Act [now this section], to the Attorney General and Archivist of the
United States, see § 6(b) of Ex. Ord. No. 10530, May 11, 1954, 19 F.R. 2709, set out as a
note under section 301 of Title 3, The President. See, also, section 103(b)(1) of Pub.L.
98-497, set out as a note under section 2102 of this title.
7
In 1 CFR § 2.2, the current “Administrative Committee” consists of (b) The Committee
consists of-- (1) The Archivist, or Acting Archivist, of the United States, who is the
Chairman; (2) An officer of the Department of Justice designated by the Attorney
General; and (3) The Public Printer or Acting Public Printer. (c) The Director of the
Federal Register is the Secretary of the Committee.
8
Authority: 44 U.S.C 1506; sec. 6 E.O. 10530, 19 FR 2709; 3 CFR 1954-1958 Comp.,
p. 189; SOURCE: 37 FR 23603, Nov. 4, 1972 unless otherwise noted. 50 FR 12468,
Mar. 28, 1985.

the regulations republished since 19609 are all “interpretative regulations” having no
“force and effect of law.”
Overview
For a duty or obligation to attach there must be Part 1 substantive regulations
promulgated and published in the Federal Register under to one of the two rulemaking
processes mandated by Congress for any regulations to have the “force and effect of
law”10.
The First being the Formal Rule Making using 5 U.S.C. §§ 556 and 55711. This
is almost never used today and the IRS has not promulgated one Part 1 substantive
regulation using the Formal Rule Making under 5 U.S.C. §§ 556 and 557.
The Second, being the Informal Rule Making under 5 U.S.C. § 553(b)(c)(d)12
wherein the IRS also has not promulgated one Part 1 substantive regulation using the
Informal Rule Making
In order to prove that the there is no duty or obligation of taxation due to the
Internal Revenue Service (IRS) for Individuals, Employees or Employers in Title 26 of
the United States Code (U.S.C.) the following four prongs are required to be proven, to
wit:
9
Part 1 regulations republished on November 26, 1960 in the Federal Register 25 FR
11402 – 25 FR 12162, 25 FR; 25 FR 14021-22 published December 31, 1960; 19 FR
5167, Aug. 17, 1954, which clearly states that the regulations were not in compliance
with sections 4(a) and 4(c) of the APA of 1946.
10
Production Tool Corp. v. Employment and Training Administration, U.S. Dept. of
Labor, 688 F.2d 1161, 1165 (7th Cir. 1982) citing the holdings in Chrysler v. Brown,
“Legislative rules are said to have the “force and effect of law”-i.e., they are as binding
on the courts as any statute enacted by Congress. Chrysler, 441 U.S. at 295, 99 S.Ct. at
1714.
11
Lubbers “A Guide to Federal Rule Making” 4th Edition pages 58-59.
12
Lubbers “A Guide to Federal Rule Making” 4th Edition pages 60.

1. That the IRS can’t operate by Code sections alone but is required
promulgate regulations in the Federal Register “documents or classes of
documents as may be required so to be published by Act of Congress”;
and,
2. What regulations have been promulgated as mandated by Acts of
Congress; and,
3. Identify if any of these regulations are “substantive regulations” having
the “force and effect of law” creating a duty or obligation of income
taxation.
4. Identify if an “interpretative regulation” that does not have the “force and
effect of law” has been modified making a substantive change invoking
the informal rulemaking of 553(b)(c)(d).
There is no obligation or duty under the Internal Revenue laws and part 1
substantive regulations in existence today that have application to the Petitioner.
Prong 1 – Prove that the IRS can’t Operate using just Code Sections but is
Required to use Regulations Published in the Federal Register
In the Federal Register Act of 193513 Congress specifically established a
permanent “Administrative Committee”14 wherein the duties were specifically delegated
to this committee to promulgate regulations to implement the Federal Register Act, i.e.
“The committee shall prescribe, with the approval of the President 15, regulations for
13
14
Section 6 @ 49 Stat. 501
15
44 U.S.C. § 1506 - For delegation of functions, vested in the President by section 6 of
the Federal Register Act [now this section], to the Attorney General and Archivist of the
United States, see § 6(b) of Ex. Ord. No. 10530, May 11, 1954, 19 F.R. 2709, set out as a
note under section 301 of Title 3, The President. See, also, section 103(b)(1) of Pub.L.
98-497, set out as a note under section 2102 of this title.

carrying out the provisions of this Act.” The current members of the “Administrative
Committee”16 were established on November 4th, 1972 as published in the Federal
Register at 37 FR 23602. The current regulations mandated to implement the Federal
Register Act of 193517 are currently published by the Administrative Committee of the
Federal Register in Part 1 CFRs sections 1.1 – 22.7, Revised as of January 1, 2005, being
Attachment 2.
Offer of Proof 1 – There is a direct delegation of Congress to the Administrative
Committee of the Federal Register (ACFR) to implement the Federal Register Act of
1935 by regulations published in the Federal Register. Therefore, I can rely upon any of
the regulations published in the Part 1 CFR sections 1.1 – 22.7 under the Authority of the
ACFR being Attachment 2.
Under the Authority of ACFR, 1 CFR § 1.118 in the definition of “Document”
mandates the publishing in the Federal Register of all documents of general
applicability and legal effect including those imposing an obligation, to wit:
Document having general applicability and legal effect means any

document issued under proper authority prescribing a penalty or course
of conduct conferring a right, privilege, authority or immunity, or
imposing an obligation, and relevant or applicable to the general
public, members of a class, or person in a locality, as distinguished from
named individual or organizations; [Emphasis added]
16
In 1 CFR § 2.2, the current “Administrative Committee” consists of (b) The Committee
consists of-- (1) The Archivist, or Acting Archivist, of the United States, who is the
Chairman; (2) An officer of the Department of Justice designated by the Attorney
General; and (3) The Public Printer or Acting Public Printer. (c) The Director of the
Federal Register is the Secretary of the Committee.
17
18
p. 189; 1 U.S.C. 112; 1 U.S.C. 113. SOURCE: 37 FR 23603, Nov. 4, 1972, as amended
at 50 FR 12466, Mar. 28, 1985.

Under the Authority of ACFR, 1 CFR § 5.1(a)(2)19 requires publication in the
Federal Register of documents “Documents required to be published therein by law.”
Under the Authority of ACFR, 1 CFR § 5.2(b)(c)20 requires publication in the
Federal Register of documents “(b) Each document or class of documents required to be
published by act of Congress. (c) Each document having general applicability and
legal effect.” [Emphasis added]
Under the Authority of ACFR, 1 CFR § 5.9(b)(c)21 Categories of documents
required to be published in the Federal Register, to wit:
(b) Rules and regulations. This category contains each document having
general applicability and legal effect . . . This category includes . . .
interpretations of agency regulations . . .
(c) Proposed rules. This category contains each notice of proposed
rulemaking submitted pursuant to section 553 of title 5, United States
Code, or any other law, which if promulgated as a rule, would have
general applicability and legal effect. This category includes documents
that suggest changes to regulations in the Code of Federal Regulations,
begin a rulemaking proceeding, and affect or relate to other documents
previously published in the proposed rules sections.
Under the Authority of ACFR, 1 CFR 8.122 the Director “shall publish”
regulations in a “practical code called the “Code of Federal Regulations” to contain each
Federal regulation of general applicability and legal effect.”
19
p. 189; SOURCE: 37 FR 23603, Nov. 4, 1972 unless otherwise noted.
20
p. 189; SOURCE: 37 FR 23603, Nov. 4, 1972 as amended by at 54 FR 9676, Mar. 7,
1989.
21
1989.
22
1989.

Under the Authority of ACFR, 1 CFR § 15.123 the “Director of the Federal
Register shall assist each agency . . . in promulgating administrative documents having
the effect of legal notice or of law.”
Under the Authority of ACFR, 1 CFR § 15.1024 the “Director of the Federal
Register may . . . information and instructions to promote effective compliance with the
purposes of chapter 15 of title 44, United States Code, sections 552-553 of title 5, United
States Code, related statues . . .”
Under the Authority of ACFR, 1 CFR § 21.4025 of Authority citations “Each
section subject to codification must include or covered by, a complete citation of
authority under which the section is issued, including - - (a) General or specific
authority delegated by statute; . . .”
Under the Authority of ACFR, 1 CFR § 21.4126 under “Agency responsibility”
“(a) Each issuing agency is responsible for the accuracy and integrity of the citations
of authority in the documents it issues. (b) Each issuing agency shall formally amend
citation of authority in its codified material to reflect any changes therein.”
Under the Authority of ACFR, 1 CFR § 21.4327 on “Placing and amending
23
24
25
Mar. 28, 1985.
26
27
Mar. 28, 1985.

authority citations” defines the requirement of citations, i.e. statutory authorities, to be
located behind the Table of Contents for a complete CFR part or subpart, to wit:
(a) The requirements for placing authority citations vary with the type
of amendment the agency is making in a document. The agency shall set
out the full text of the authority citation for each Part affected by the
document.
(1) If a document sets out an entire CFR part, the agency shall place the
complete authority citation directly after the table of contents and
before the regulatory text.
(2) If a document amends only certain sections within a CFR part, the
agency shall present the complete authority citation to this part as the first
item in the list of amendments.
(i) If the authority for issuing an amendment is the same as the authority
listed for the whole CFR part, the agency shall simply restate the
authority.
(ii) If the authority for issuing an amendment changes the authority
citation for the whole CFR part, the agency shall revise the authority
citation in its entirety. The agency may specify the particular authority
under which certain sections are amended in the revised authority
citation.
(b) The agency shall present a centralized authority citation. The
authority citation shall appear at the end of the table of contents for a
part or after each subpart heading within the text of a part. Citations of
authority for particular sections may be specified within the centralized
authority citation.
The Federal Register Act of 193528 sets forth statutory mandates concerning what
shall be published in the Federal Register in Section 5(a) “(2) There shall be published in
the Federal Register . . . documents or classes of documents . . . have general
applicability and legal effect; and (3) such documents or classes of documents as may
be required so to be published by act of Congress.”
In Federal Register Act of 1935 in Section 7 “No document required under
section 5(a) to be published in the Federal Register shall be valid as against any
person who has not had actual knowledge thereof.”
28
49 Stat. 500-503 enacted July 26, 1935; and, 2 FR 2454-2456, November 12, 1937.

In the Congressional Record of Administrative Procedure Act of 1946 29 (“APA of
1946”) 92 Pt. 5. Cong. Rec. Rep. pg 5656 we find the following Congressional Intent
presented by Representative Gwynne of Iowa stating that after a “law” has been passed,
but before it applies to the individual citizen there must be rules and regulations
promulgated by the agency, to wit:
After a law has been passed by the Congress, before it applies to the
individual citizen there are about three steps that must be taken First, the
bureau having charge of enforcement must write rules and
regulations to amplify, interpret, or expand the statute that we
passed; rule making, we call it.
It was held Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842,
843 (1984) that if the intent of Congress is clear, the court and agency must give it effect,
to wit:
When a court reviews an agency's construction of the statute which it

administers, it is confronted with two questions. First, always, is the
question whether Congress has directly spoken to the precise question at
issue. If the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. [FN9]
[FN9 The judiciary is the final authority on issues of statutory construction
and must reject administrative constructions which are contrary to
clear congressional intent (Sup.Ct. of US cites omitted) If a court,
employing traditional tools of statutory construction, ascertains that
Congress had an intention on the precise question at issue, that
intention is the law and must be given effect.]
In the APA of 1946 Section 3(a)30 “Rules. – Every agency shall separate state and
29
60 Stat. 237-244, June 11, 1946.
30
60 Stat. 238 is Codified today in 5 U.S.C. § 552(a)(1)(D) “(D) substantive rules of
general applicability adopted as authorized by law , and statements of general policy
or interpretations of general applicability formulated and adopted by the agency;
and . . . Except to the extent that a person has actual and timely notice of the terms
thereof, a person may not in any manner be required to resort to, or be adversely
affected by, a matter required to be published in the Federal Register and not so
published.

currently publish in the Federal Register . . . (3) substantive rules adopted as
authorized by law and statements of general policy or interpretations . . . No person
shall in any manner be required to resort to organization or procedure not so
published.”
Offer of Proof 2 – I can rely upon the Federal Register Act of 1935 31, the
regulations published in the Federal Register by the ACFR 32 in the 1 CFRs 1.1-22.7, the
Federal Act of 1935 published in the Federal Register 33, the Congressional Record of the
APA of 194634 and the APA of 1946 Section 3(a) 35 that regulations shall be published in
the Federal Register when required by Act of Congress and that all regulations of general
applicability and legal effect shall be published in the Federal Register.
Now that it is established that regulations shall be published in the Federal
Register when mandated by Act of Congress, the very next issue is to identify which
Code Sections of Title 26 of the U.S.C. require regulations to be published in the Federal
Register. This mandate of regulations is found under the Acts of Congress “Under
regulations prescribed by the Secretary” of approximately 439 Code Sections and
approximately 45 Code Sections under “regulations prescribed.”
Only a small number of these regulations required by Act of Congress to be
published in the Federal Register will be identified and used, but this is not a waiver of all
of the regulations that shall be published in the Federal Register when required by Act of
31
32
Regulations published in the Federal Register in the 1 CFRs 1.1 – 22.7 under the
Delegated Authority of 49 Stat. 500-503 enacted July 26, 1935.
33
2 FR 2454-2456, November 12, 1937
34
92 Pt. 5. Cong. Rec. Rep. pg 5656
35
60 Stat. 237-244, June 11, 1946.

Congress.
1. 26 U.S.C. § 3401. Definitions “(6) for such services, performed by a

nonresident alien individual, as may be designated by regulations
prescribed by the Secretary``; and,
2. 26 U.S.C. § 3402. Income tax collected at source. “(2) Amount of wages

. . . The maximum number of withholding exemptions permitted shall
be calculated in accordance with regulations prescribed by the
Secretary . . .”
“(3) In any case in which the period, or the time described in paragraph
(2), in respect of any wages is less than one week, the Secretary, under
regulations prescribed by him . . .
“(4) In any case in which the period, or the time described in paragraph
(3), in respect of any wages is less than one week, the Secretary, under
regulations prescribed by him, . . .”
“(m) Withholding allowances.--Under regulations prescribed by the

Secretary, an employee shall be entitled to additional withholding
allowances or additional reductions in withholding under this
subsection.”
“o. (3) Amount withheld from annuity payments or sick pay . . . shall
be an amount (not less than a minimum amount determined under
regulations prescribed by the Secretary) specified by the payee in such
request.”
“(p) Voluntary withholding agreements.-- (B) Amount withheld.-- . . .

such other percentage as is permitted under regulations prescribed by
the Secretary.”
“(r) Extension of withholding to certain taxable payments of Indian
casino profits.-- (5) Annualization.--Payments shall be placed on an
annualized basis under regulations prescribed by the Secretary. (6)
Alternate withholding procedures . . . tables or computational
procedures as may be specified in regulations prescribed by the
Secretary (in lieu of in accordance with paragraphs (2) and (3)).”
3. 26 U.S.C. § 6011 – General requirement of return, statement, or list
(a) General rule.--When required by regulations prescribed by the
Secretary any person made liable for any tax imposed by this title, or
with respect to the collection thereof, shall make a return or statement
according to the forms and regulations prescribed by the Secretary.
Every person required to make a return or statement shall include therein
the information required by such forms or regulations.”
“(c) Returns, etc., of DISCS and Former DISCS and FSC's and

Former FSC's.-- (B) keep such records, as may be required by
regulations prescribed by the Secretary. . . (2) Returns.--A DISC shall
file for the taxable year such returns as may be prescribed by the
Secretary by forms or regulations.”
“(e) Regulations requiring returns on magnetic media, etc.-- (1) In
general.--The Secretary shall prescribe regulations providing standards for
determining which returns must be filed on magnetic media or in other
machine-readable form. The Secretary may not require returns of any
tax imposed by subtitle A on individuals, estates, and trusts to be other
than on paper forms supplied by the Secretary.”
4. 26 U.S.C. § 6012 – Persons required to make returns of income – (a)
General rule.—Returns with respect to income taxes under Subtitle A shall
be by . . . except that subject to such conditions, limitation, and exceptions
and under regulations as may be prescribed by the Secretary . . .”
5. 26 U.S.C. § 6013 - “(e) Spouse relieved of liability in certain cases.-“(1)
In general.--Under regulations prescribed by the Secretary, if-- . . .
“(A) a joint return has been made under this section for a taxable year,
“(B) on such return there is a substantial understatement of tax attributable
to grossly erroneous items of one spouse, “(C) the other spouse establishes
that in signing the return he or she did not know, and had no reason to
know, that there was such substantial understatement, . . . ”
6. 26 U.S.C. § 6041 – Information at source [1099s] “. . .of $600 or more
in any taxable year, or, in the case of such payments made by the United
States, the officers or employees of the United States having information
as to such payments and required to make returns in regard thereto by
the regulations hereinafter provided for, shall render a true and
accurate return to the Secretary, under such regulations and in such
form and manner and to such extent as may be prescribed by the
Secretary, setting forth the amount of such gains, profits, and income, and
the name and address of the recipient of such payment.”
“(b) Collection of foreign items.-- such person shall make a return
according to the forms or regulations prescribed by the Secretary . . .”
7. 26 U.S.C. § 6041A - Returns regarding payments of remuneration for
services and direct sales [1099s] “(a) Returns regarding remuneration for
services. If-- (1) any service-recipient engaged in a trade or business pays
in the course of such trade or business during any calendar year
remuneration to any person for services performed by such person, and (2)
the aggregate of such remuneration paid to such person during such
calendar year is $600 or more, then the service-recipient shall make a
return, according to the forms or regulations prescribed by the
Secretary, setting forth the aggregate amount of such payments and the
name and address of the recipient of such payments. For purposes of the
preceding sentence, the term "service-recipient" means the person for
whom the service is performed.”

8. 26 U.S.C. § 6050E – State and local income tax refunds – “(a)
Requirement of reporting.--Every person who, with respect to any
individual, during any calendar year makes payments of refunds of State
or local income taxes (or allows credits or offsets with respect to such
taxes) aggregating $10 or more shall make a return according to forms
or regulations prescribed by the Secretary setting forth the aggregate
amount of such payments, credits, or offsets, and the name and address of
the individual with respect to whom such payment, credit, or offset was
made.”
9. 26 U.S.C. § 6050F – Returns relating to social security benefits (a)
Requirement of reporting.--The appropriate Federal official shall make
a return, according to the forms and regulations prescribed by the
Secretary, setting forth-- (1) the-- (A) aggregate amount of social security
benefits paid with respect to any individual during any calendar year, (B)
aggregate amount of social security benefits repaid by such individual
during such calendar year, and (C) aggregate reductions under section 224
of the Social Security Act (or under section 3(a)(1) of the Railroad
Retirement Act of 1974) in benefits which would otherwise have been
paid to such individual during the calendar year on account of amounts
received under a workmen's compensation act, and (2) the name and
address of such individual.
10. 26 U.S.C. § 6050I – Returns relating to case received in trade or
business, etc. “ (a) Cash receipts of more than $10,000.--Any person--
(1) who is engaged in a trade or business, and (2) who, in the course of
such trade or business, receives more than $10,000 in cash in 1
transaction (or 2 or more related transactions), shall make the return
described in subsection (b) with respect to such transaction (or related
transactions) at such time as the Secretary may by regulations prescribe.
(b) Form and manner of returns.--A return is described in this
subsection if such return-- (1) is in such form as the Secretary may
prescribe,”
11. 26 U.S.C. § 6061 – Signing of returns and other documents26 U.S.C. §
6051 “(a) General rule.--Except as otherwise provided by subsection (b)
and sections 6062 and 6063, any return, statement, or other document
required to be made under any provision of the internal revenue laws
or regulations shall be signed in accordance with forms or regulations
prescribed by the Secretary. (2) Treatment of alternative methods.--
Notwithstanding any other provision of law, any return, declaration,
statement, or other document filed and verified, signed, or subscribed
under any method adopted under paragraph (1)(B) shall be treated for all
purposes (both civil and criminal, including penalties for perjury) in
the same manner as though signed or subscribed.”
12. 26 U.S.C. § 6091 – Place for filing returns or other documents “(a)
General rule.--When not otherwise provided for by this title, the
Secretary shall by regulations prescribe the place for the filing of any

return, declaration, statement, or other document, or copies thereof ,
required by this title or by regulations. (b) Tax returns.--In the case of
returns of tax required under authority of part II of this subchapter-- (1)
Persons other than corporations.-- (A) General rule.--Except as
provided in subparagraph (B), a return (other than a corporation return)
shall be made to the Secretary-- (i) in the internal revenue district in
which is located the legal residence or principal place of business of the
person making the return, or (ii) at a service center serving the internal
revenue district referred to in clause (i), as the Secretary may by
regulations designate.
13. 26 U.S.C. § 6109 – Identifying numbers a) Supplying of identifying
numbers.--When required by regulations prescribed by the Secretary:
(1) Inclusion in returns.--Any person required under the authority of
this title to make a return, statement, or other document shall include
in such return, statement, or other document such identifying number
as may be prescribed for securing proper identification of such
person. (2) Furnishing number to other persons.--Any person with
respect to whom a return, statement, or other document is required under
the authority of this title to be made by another person or whose
identifying number is required to be shown on a return of another person
shall furnish to such other person such identifying number as may be
prescribed for securing his proper identification. (3) Furnishing number
of another person.--Any person required under the authority of this title
to make a return, statement, or other document with respect to another
person shall request from such other person, and shall include in any such
return, statement, or other document, such identifying number as may be
prescribed for securing proper identification of such other person. (4)
Furnishing identifying number of income tax return preparer.--Any
return or claim for refund prepared by an income tax return preparer shall
bear such identifying number for securing proper identification of such
preparer, his employer, or both, as may be prescribed. For purposes of this
paragraph, the terms "return" and "claim for refund" have the respective
meanings given to such terms by section 6696(e).”
14. 26 U.S.C. § 6157 – Payment of Federal unemployment tax on
quarterly or other time period basis “The tax for any calendar quarter or
other period shall be computed as provided in subsection (b) [wages] and
the tax as so computed shall, except as otherwise provided in subsection
(c), be paid in such manner and at such time as may be provided in
regulations prescribed by the Secretary.”
15. 26 U.S.C. § 6161 – Extension of time for paying tax – “(b) Amount
determined as deficiency.--(1) Income, gift, and certain other taxes.--
Under regulations prescribed by the Secretary, the Secretary may
extend the time for the payment of the amount determined as a deficiency
of a tax imposed by chapter 1, 12, 41, 42, 43, or 44 for a period not to
exceed 18 months from the date fixed for the payment of the deficiency,”

16. 26 U.S.C. § 6203 – Method of assessment – “The assessment shall be
made by recording the liability of the taxpayer in the office of the
Secretary in accordance with rules or regulations prescribed by the
Secretary. Upon request of the taxpayer, the Secretary shall furnish the
taxpayer a copy of the record of the assessment.”
17. 26 U.S.C. § 6334 – Property exempt from levy – “(d) (3) Individuals on
basis other than weekly.--In the case of any individual not described in
paragraph (1), the amount of the wages, salary, and other income payable
to or received by him during any applicable pay period or other fiscal
period (as determined under regulations prescribed by the Secretary)
which is exempt from levy under subsection (a)(9) shall be an amount
(determined under such regulations) . . .”
18. 26 U.S.C. § 6343 – Authority to release levy and return property – “(a)
Release of levy and notice of release.--(1) In general.--Under
regulations prescribed by the Secretary, the Secretary shall release the
levy upon all, or part of, the property or rights to property levied
upon and shall promptly notify the person upon whom such levy was
made (if any) that such levy has been released if-- . . .”
19. 26 U.S.C. § 6654 – Failure by individual to pay estimated income tax -
(d) Amount of required installments.--For purposes of this section--(C)
Special rules.--For purposes of this paragraph-- (i) Annualization.--The
taxable income, alternative minimum taxable income, and adjusted self-
employment income shall be placed on an annualized basis under
regulations prescribed by the Secretary. (m) Regulations.--The
Secretary shall prescribe such regulations as may be necessary to
carry out the purposes of this section.”
20. 26 U.S.C. § 6695 - Other assessable penalties with respect to the
preparation of income tax returns for other persons “(b) Failure to
sign return.--Any person who is an income tax return preparer with
respect to any return or claim for refund, who is required by regulations
prescribed by the Secretary to sign such return or claim, . . . “
21. 26 U.S.C. § 6696 – Rules applicable with respect to sections 6694, 6695
and 6695A “(c) Procedure for claiming refund.--Any claim for credit or
refund of any penalty paid under section 6694 [understatement of liability
by tax return preparer], 6695 [penalties assessable by using tax preparers],
or 6695A [gross misstatements on appraisals] shall be filed in accordance
with regulations prescribed by the Secretary.”
22. 26 U.S.C. § 6863 – Stay of collection of jeopardy assessments - “(a)
Bond to stay collection.--When an assessment has been made under
section 6851, 6852, 6861 or 6862, the collection of the whole or any
amount of such assessment may be stayed by filing with the Secretary,
within such time as may be fixed by regulations prescribed by the
Secretary

23. 26 U.S.C. § 7425 – Discharge of Lien “(c) Special rules.-- (1) Notice of
sale.--Notice of a sale to which subsection (b) applies shall be given (in
accordance with regulations prescribed by the Secretary) in writing, by
registered or certified mail or by personal service, not less than 25 days
prior to such sale, to the Secretary.
Prong 2 – What regulations Have Been Promulgated When Required by “Act of

Congress
With just the above twenty-three (23) Code sections wherein the IRS was
mandated to promulgate in the Federal Register with “regulations prescribed by the
Secretary”, where are the regulations disclosed that were promulgated that I can rely
upon?
Under the Authority of ACFR, 1 CFR § 21.4336 on “Placing and amending
authority citations” defines and requires that the citations, i.e. statutory authorities, to
be located behind the Table of Contents for a complete CFR part or subpart. Part 1
(Individual Income Taxes), which is composed of thirteen (13) volumes 37 of regulations
from §1.0 to the End, wherein the excerpts of all 13 volumes statutory authorities behind
the table of contents are presented as an Offer of Proof, being Attachment 3. Therefore,
as matter of law, I can rely upon within the thirteen volumes of Part 1 regulations
published under the Authority of the ACFR behind the Table of Contents to identify all
regulations that have been promulgated under the requirement of “By Act of Congress”
(Code) remembering also that it is the duty of the IRS under the Authority of ACFR in 1
36
Mar. 28, 1985.
37
(1) (§§1.0-1.60); and, (2) (§§ 1.61-1.169); and, (3) (§§1.170-1.300); and, (4) (§§1.301-
1.400); and, (5) (§§1.401-1.440); and, (6) (§§1.441-1.500); and, (7) (§§1.501-1.640); and,
(8) (§§1.641- 1.850); and, (9) (1.851-1.907); and, (10) (§§1.908-1.1000); and, (11)
(§§1.1001-1.1400); and, (12) (§§1.1401-1.1550); and, (13) (§§1.1551 to End).

CFR § 21.4138 to maintain the accuracy of these citations, i.e. “(a) Each issuing agency is
responsible for the accuracy and integrity of the citations of authority in the documents it
issues.”
Therefore for Prong 2, the issue is to identify if the IRS has promulgated any type
of regulations or not when required By Act of Congress. If regulations have been
promulgated, then the final test is Prong 3 to see if the regulations are “substantive
regulations” to have the “force and effect of law” creating a duty or obligations in
compliance with APA of 1946 in 60 Stat. 237-244, June 11, 1946 Sections 4(a) & 4(c)
codified today in 5 U.S.C. § 553(b)(c)(d) that must be disclosed when the regulations are
published in the Federal Register.
If no regulations have been promulgated when required by Act of Congress, then
any duty and obligation upon me is precluded as a matter of law and by operation of law
i.e. obligation of law as the IRS not fulfilled its mandated duty.
1. For 26 U.S.C. § 3401. Definitions - behind the Table of Contents39 Part 1
Volume twelve (12) we find the following regulations under 3401 concerning nonresident
aliens and foreign corporations, to wit:
a. Section 1.1441-2 - Amounts subject to withholding - under 26 U.S.C.

1441(c)(4) and 26 U.S. 3401(a)(6); and,
b. Section 1.1441-3 - Determination of amounts to be withheld - under 26
U.S.C. 1441(c)(4), 26 U.S. 3401(a)(6) and 26 U.S.C. 7701(1); and,
c. Section 1.1441-4 – Exemptions from withholding for certain effectively
connected income and other amounts - under 26 U.S.C. 1441(c)(4), 26 U.S.
3401(a)(6) and 26 U.S.C. 7701(1); and,
d. Section 1.1441-5 – Withholding on payments to partnerships, trusts, and
38
39
Authority of 1 CFR § 21.43.

estates - under 26 U.S.C. 1441(c)(4), 26 U.S. 3401(a)(6) and 26 U.S.C.
7701(b)(11); and,
e. Section 1.1441-6 – Claim of reduced withholding under an income tax
treaty - under 26 U.S.C. 1441(c)(4) and 26 U.S. 3401(a)(6); and,
f. Section 1.1441-7 – Exemptions from withholding for certain effectively
connected income and other amounts - under 26 U.S.C. 1441(c)(4), 26 U.S.
3401(a)(6) and 26 U.S.C. 7701(1); and
g. Section 1.1461-1 – Payment and returns of tax withheld - under 26 U.S.C.
1441(c)(4) and 26 U.S. 3401(a)(6); and,
h. Section 1.1461-2 – Adjustments for overwithholding or underwithholding
of tax - under 26 U.S.C. 1441(c)(4) and 26 U.S. 3401(a)(6); and,
i. Section 1.1462-1 – Withheld tax as credit to recipient of income - under 26
U.S.C. 1441(c)(4) and 26 U.S. 3401(a)(6); and,
2. 26 U.S.C. § 3402. Income tax collected at source. – there are no Part 1
regulations promulgated under the authority of § 3402 as required by Act of Congress.
3. 26 U.S.C. § 6011 – General requirement of return, statement, or list –
there are two regulations, to wit:
a. 26 CFR § 1.853-4 – Manner of making election (Regulated Investment

Companies and Real Estate Investment Trusts) – also issued under 26
U.S.C. 901(j) and 26 U.S.C. § 6011; and,
b. 26 CFR § 1.6011-4T – [Reserved by 72 FR 12108] – also issued under 26
U.S.C.6001, 26 U.S.C. § 6011(a) and 26 U.S.C. § 6011.
4. 26 U.S.C. § 6012 – Persons required to make returns of income - there
are no Part 1 regulations promulgated under the authority of § 6012 as required by Act of
Congress.
5. 26 U.S.C. § 6013 - “(e) Spouse relieved of liability in certain cases. –
there is one regulation, to wit:
a. 26 CFR 1.6013-6 - Election to treat nonresident alien individual as

resident of the United States. – also issued under 26 U.S.C. 7701(b)(11).
6. 26 U.S.C. § 6041 – Information at source [1099s] – there are three

regulations, to wit:
a. 26 CFR § 1.6041-1 - Return of information as to payments of $600 or

more. – also issued under 26 U.S.C. 6041(a); and,
b. 26 CFR § 1.6041-2 - Return of information as to payments to
employees.– also issued under 26 U.S.C. 6041(d); and,
c. 26 CFR § 1.6041-3 - Payments for which no return of information is
required under section 6041.– also issued under 26 U.S.C. § 62 and 26
U.S.C. 6041(a).
7. 26 U.S.C. § 6041A - Returns regarding payments of remuneration for
services and direct sales [1099s] - there are no Part 1 regulations promulgated under the
authority of § 6041A as required by Act of Congress.
8. 26 U.S.C. § 6050E – State and local income tax refunds – there is one
regulation, to wit:
a. 26 CFR § 1.6050E-1 - 1.6050E-1 Reporting of State and local income

tax refunds. – also issued under 26 U.S.C. § 6050E.
9. 26 U.S.C. § 6050F – Returns relating to social security benefits (a)
Requirement of reporting.-- there are no Part 1 regulations promulgated under the
authority of § 6050F as required by Act of Congress.
10. 26 U.S.C. § 6050I – Returns relating to case received in trade or
business, etc. - there are no Part 1 regulations promulgated under the authority of § 6050I
as required by Act of Congress.
11. 26 U.S.C. § 6061 – Signing of returns and other documents26 U.S.C. §
6051 “(a) General rule.—there is one regulations, to wit:
a. 26 CFR § 1.6061-2T – does not exist in the published CFRs.
12. 26 U.S.C. § 6091 – Place for filing returns or other documents - there

are no Part 1 regulations promulgated under the authority of § 6091 as required by Act of
Congress.

numbers.- there is one regulation, to wit:
a. 26 CFR § 1.6109-2 - (a) Information to be furnished after April 15,
1974. – also issued under 26 U.S.C. 6109(a).
14. 26 U.S.C. § 6157 – Payment of Federal unemployment tax on
quarterly or other time period basis - there are no Part 1 regulations promulgated under
the authority of § 6157 as required by Act of Congress.
15. 26 U.S.C. § 6161 – Extension of time for paying tax – “(b) Amount
determined as deficiency - there are no Part 1 regulations promulgated under the
authority of § 6161 as required by Act of Congress.
16. 26 U.S.C. § 6203 – Method of assessment - there are no Part 1
17. 26 U.S.C. § 6334 – Property exempt from levy - there are no Part 1
18. 26 U.S.C. § 6343 – Authority to release levy and return property – “(a)
Release of levy and notice of release - there are no Part 1 regulations promulgated under
the authority of § 6343 as required by Act of Congress.
19. 26 U.S.C. § 6654 – Failure by individual to pay estimated income tax -
there are no Part 1 regulations promulgated under the authority of § 6654 as required by
Act of Congress.
preparation of income tax returns for other persons – there are four regulations, to

wit:
a. 26 CFR 1.6695-1 - Other assessable penalties with respect to the

preparation of income tax returns for other persons. – also issued
under 26 U.S.C. 6060(b) and 6695(b); and,
b. 26 CFR 1.6695-2 - Preparer due diligence requirements for
determining earned income credit eligibility.– also issued under 26
U.S.C. § 6695(g); and,
21. 26 U.S.C. § 6696 – Rules applicable with respect to sections 6694, 6695
and 6695A - there are no Part 1 regulations promulgated under the authority of § 6696 as
required by Act of Congress.
22. 26 U.S.C. § 6863 – Stay of collection of jeopardy assessments - there are
no Part 1 regulations promulgated under the authority of § 6863 as required by Act of
Congress.
23. 26 U.S.C. § 7425 – Discharge of Lien - there are no Part 1 regulations
promulgated under the authority of § 7425 as required by Act of Congress.
Prong 3 – Identify if any of the Regulations Promulgated as Required by Act of

Congress Published in the Federal Register are “Substantive Regulations having
the “Force and Effect of Law”
Under the Authority of ACFR in Title 26 CFR Volumes 1-13 of the Part 1
regulations and rules (hereafter “regulations”) (“1 CFR § 1.1 Regulations and rule have
the same meaning”) published in the CFR April 1, 2009 page v “The contents of the
Federal Register are required to be judicially noticed (44 U.S.C. 1507).”
Overview of Prong 3
All of the Part 1 regulations republished on November 26, 1960 in the Federal
Register 25 FR 11402 – 25 FR 12162 are all interpretative regulations having no

“force and effect of law” and creating no duty or obligation upon any of the public or
me as evidenced by 25 FR 14021-22 published December 31, 1960 in the Federal
Register references all of the republished Part 1 regulations back to the authority of 19
FR 5167, Aug. 17, 1954, which clearly states that the regulations were not in compliance
with sections 4(a) and 4(c) of the APA of 194640.
The Evidence of Prong 3
As an Offer of Proof within 25 FR 14021-22, being Attachment 4, published
December 31, 1960 in reference to the republishing of the Part 1 regulations states
“Regulations under the 1939 Code, as made applicable to the corresponding provision of
the 1954 Code by Treasury Decision 6091, 19 FR 5167, Aug. 17, 1954, have been
systematically superseded by regulations under the 1954 Code.”
And further as published in the Title 26 CFR Volumes 1-13 of the Part 1 at the
bottom of each of the additional required statutory authorities behind the table of
contents41, being the excerpts in Attachment 3, I can rely upon as printed “SOURCE:
T.D. 6500 25 FR 11402, Nov. 26, 1960; 25 FR 14021, Dec. 1960, unless otherwise
noted.”
And further, I can rely upon as printed and contained in Title 26 CFR Volume 1
(§§1.0 to 1.60) of the Part 1 regulations published April 1, 2009 on pages 3 and 4 as an
Offer of Proof, being Attachment 5, “Treasury Decision 6091, 19 FR 5167, Aug. 17,
1954, provides in part as follows:” to which the rest of 19 FR 5167 - PAR 4 published
August 17, 1954 has been added to complete the total 19 FR 5167 as published, which
has never been amended, to wit:

40
Codified today at 5 U.S.C. § 553(b)(c)(d).
41
1 CFR § 21.43.

PARAGRAPH 1. All regulations (including all Treasury decisions)
prescribed by, or under authority duly delegated by, the Secretary of the
Treasury, or jointly by the Secretary and the Commissioner of Internal
Revenue, or by the Commissioner of Internal Revenue with the approval
of the Secretary of the Treasury, or jointly by the Commissioner of
Internal Revenue and the Commissioner of Customs or the Commissioner
of Narcotics with the approval of the Secretary of the Treasury, applicable
under any provision of law in effect on the date of enactment of the Code,
to the extent such provision of law is repealed by the Code, are hereby
prescribed under and made applicable to the provisions of the Code
corresponding to the pro-vision of law so repealed insofar as any such
regulation is not inconsistent with the Code. Such regulations shall
become effective as regulations under the various provisions of the Code
as of the dates the corresponding provisions of law are repealed by the
Code, until superseded by regulations issued under the Code.
PAR. 2. With respect to any provision of the Code which depends for its
application upon the promulgation of regulations or which is to be applied
in such manner as may be pre-scribed by regulations, all instructions or
rules in effect immediately prior to the enactment of the Code; to the
extent such instructions or rules could be prescribed as regulations under
authority of such provision of the Code, shall be applied as regulations
under such provision insofar as such instructions or rules are not
inconsistent with the Code. Such instructions or rules shall be applied as
regulations under the applicable provision of the Code as of the date such
provision takes effect.
PAR. 3. If any election made or other act done pursuant to any provision
of the Internal Revenue Code of 1939 or prior internal revenue laws would
(except for the enactment of the Code) be effective for any period
subsequent to such enactment, and if corresponding provisions are
contained in the Code, such election or other act shall be given the same
effect under the corresponding provisions of the Code to the extent not
inconsistent therewith. The term "act" includes, but is not limited to, an
allocation, identification, declaration, agreement, option, waiver,
relinquishment, or renunciation.
PAR. 4. The limits of the various internal revenue districts have not been
changed by the enactment of the Code. Furthermore, delegations of
authority made pursuant to the provisions of Reorganization Plan No. 26
of 1950 and Reorganization Plan No.1 of 1952 (as well as redelegations
thereunder), including those governing the authority of the Commissioner
of Internal Revenue, the Regional Commissioners of Internal Revenue, or
the District Directors of Internal Revenue, are applicable to the provisions
of the Code to the extent consistent therewith.
[The rest of PAR. 4 published in 19 CFR 5167]

Because this Treasury decision merely provides for the continuance of
existing rules pending further action, it is hereby found that it is
impracticable and contrary to the public interest to incur the delay which
would result if this Treasury decision were issued with notice and public
procedure thereon under section 4 (a) of the Administrative Procedure
Act, approved June 11, 1946, or subject to the effective date limitation of
section 4 (c) of said act. (68A Stat. 917; 26 U. S. C. 7805)
[SEAL] M. B. FOLSOM,
Acting Secretary of the Treasury,
AUGUST 16, 1954.
[F. R. Doc, 54-6437; Filed, Aug. 16, 1064; 12:29 p. m.]
As an Offer of Proof 19 FR 5167, being Attachment 6, conclusively establishes
that after the 1954 IRS Code was enacted the regulations under the new 1954 IRS Code
did not comply with the Administrative Procedure Act approved June 11, 1946 (60 Stat.
237) section 4(a) and section 4(c)42 to be Part 1 “substantive regulations” having the
“force and effect of law.” 19 FR 5167 conclusively establishes that the Part 1 regulations
published on November 26, 1960 in the Federal Register 25 FR 11402 – 25 FR 12162 are
all “interpretative” regulations and therefore were not Part 1 “substantive regulations”
having the “force and effect of law.”
And further prior to the 1954 IRS Code, the republishing of the Part 39 (from the
original Part 19 to Part 29 regulations) regulations consisting of 429 pages on September
26, 1953 in 18 FR 5771-6199 also did not comply with the Administrative Procedure Act
approved June 11, 1946 (60 Stat. 237) section 4(a) and section 4(c) to be substantive
regulation as published at 18 FR 6199, to wit:
In pursuance of the Internal Revenue Code, the regulations in this part

(Regulations 118) are hereby prescribed, applicable to taxable years
beginning after December 31, 1951. Such regulations include those
42
Codified today in 5 U.S.C. § 553(b)(c)(d).

provisions contained in Part29, 26 CFR, 1949 ed., supps. (Regulations111)
which have application to taxable years beginning after December 31,
1951. Because the provisions of the regulations in this part are provisions
which have heretofore been prescribed pursuant to the Administrative
Procedure Act, approved June 11, 1946, it is found unnecessary to issue
such regulations with notice and public procedure thereon under section
4 (a) of the Administrative Procedure Act or subject to the effective date
limitation of section 4 (c) of that Act. The regulations in Part 29
(Regulations111), insofar as they relate to income taxes for taxable years
beginning after December 31, 1951, are hereby superseded.
[SEAL] T. COLEMAN ANDREWS,
Commissioner of Internal Revenue
Approved: September 23, 1953.
G. M. HUMPHREY,
Secretary of the Treasury.
[F. R. Doc. 53-8288; Filed, Sept. 25, 1953; 8:52 a. m.]
Upon checking the publications of Part 29 regulations after the Administrative
Procedure Act approved June 11, 1946 (60 Stat. 237) was enacted none of the Part 29
regulations ever complied with the mandates of being “substantive regulations.”
Proof of Prong 4 – Identify any “interpretative regulations” That Have Been

Amended Listed after the Table of Contents Therefore Requiring Notice and
Comment of 5 U.S.C. § 553(b)(c)(d)
Interpretative regulations cannot be modified unless the APA Notice and
Comment rulemaking is used if any substantive change is made to a prior interpretative
regulation. In Visiting Nurse Assoc. v. Thompson, 447 F.3d 68 (1st Cir. 2006) citing the
holdings in Shalala v., Guernsey Memorial Hospital, 514 U.S. 87 (1995), to wit:
In Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 115 S.Ct. 1232,
131 L.Ed.2d 106 (1995), the Supreme Court found that § 233 of the
Manual [FN7] "is a prototypical example of an interpretive rule issued by
an agency to advise the public of the agency's construction of the statutes
and rules which it administers." Id. at 99, 115 S.Ct. 1232. The Court
continued: "[i]nterpretive rules do not require notice and comment ... they
also do not have the force and effect of law and are not accorded that
weight in the adjudicatory process." [FN8]Id. Finally, the Court held that
if § 233 had "adopted a new position inconsistent with any of the

Secretary's existing regulations," the APA's notice-and-comment
rulemaking process would be required. Id. at 100, 115 S.Ct. 1232. So
long as an interpretive rule does not "effec[t] a substantive change in
the regulations," notice-and-comment is not required and the
interpretive rule is valid. Id.; see also Levesque v. Block, 723 F.2d 175,
182 (1st. Cir.1983) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139-40,
65 S.Ct. 161, 89 L.Ed. 124 (1944)).
Citing Shalala, ibid., as to changes to interpretative regulations U.S. v. Hoyts
Cinemas Corp., 380 F.3d 558 (1st Cir. 2004) “effect[ed] a substantive change in the
regulations” . . . would require APA notice and comment, from those that really are
“interpretations[s]” of existing rules.” See also Professionals & Patients for Customized
Care v. Shalala, 56 F.3d 592, 601, 602 (5th Cir. 1995); United States v. Hoyts Cinemas
Corp., 380 F.3d 558, 569 (1st Cir. 2004).
There are no “interpretative regulations” that have invoked the informal
rulemaking of notice and comment in compliance with 5 U.S.C. § 553(b)(c)(d) that can
has been found to date, even though the IRS has made an extremely large amount of new
and different changes to the existing interpretative regulations republished since 1960 in
General Grant of Authority of 26 U.S.C. § 7805 is only for “Interpretative

Regulations”
Commissioner v. Engle, 464 U.S. 206, 226-27(1984) @ 224 “implement the
congressional mandate in some reasonable manner” . . . “We find that the
[Commissioner’s interpretation] is . . . unreasonable.” This is about “interpretative
regulations.” Ibid @ 226, 227 “The Commissioner has broad authority to prescribe all
"needful rules and regulations" for the enforcement of the tax laws, see 26 U.S.C. ß
7805(a), and it is up to him to choose the method that best implements the statutory
mandate. “ Granse v. United States, 892 F. Supp. 219, 224-25 (D. Minn. 1995) @ 224
“Thus, section 7805(a) is a general grant of authority by Congress to the Commissioner

to promulgate--as necessary--"interpretive regulations" stating the agency's views of
what the existing Code provisions already require.” Ibid @ 225 “Thus, if the
Congressional mandate of the Code provision is sufficiently clear, an interpretative
regulation is not necessary.” Russell v. United States, 75 A.F.T.R.2d 95-495, 95-497,
1994 WL750673 (W.D. Mich. 1994) is not a selected for citation. Ibid Russell @ *2 “26
U.S.C. § 7805(a) (emphasis added). The statute does not purport to mandate regulations
as a prerequisite to enforcement of each and every provision of the Internal Revenue
Code.” That provision is not under § 7805 but is mandated in the Administrative
Procedures Act of 1946 codified today in 5 U.S.C. chapters 5-9, and specifically at 5
U.S.C. § 552(a)(1). In Rowan Companies v. United States, 452 U.S. 247, 253 (1981)
““[T]he Commissioner interpreted Congress’s definition only under his general authority
to “prescribe all needful rules.” 26 U.S.C. § 7805.” In Water Quality Assoc. Emp.
Benefit Corp. v. U.S., 795 F2d 1303, 1305 (7th Cir. 1986) “A Treasury Regulation such as
the one before us was promulgated pursuant to the Secretary's general authority to
“prescribe all needful rules and regulations for the enforcement of [the revenue laws],” 26
U.S.C. § 7805(a); it is an “interpretative” rather than “legislative” regulation. Rowan
Companies, Inc. v. United States, 452 U.S. 247, 253 (1981).” In Armstrong World
Industries, Inc. v. CIR, 974 F.2d 422, 430 (3rd Cir. 1992) “Moreover, legislative
regulations not promulgated under the general authority to “prescribe all needful rules
and regulations,” 26 U.S.C. § 7805(a), but instead emanating from a specific grant of
Congressional authority “to define a statutory term or prescribe a method of executing a
statutory provision.” In Lomont v. O’Neill, 285 F.3d 9, (2002) “One of the provisions - §
7805 - gives the Secretary authority “to prescribe all needful rules and regulations for the

enforcement of this title.” 26 U.S.C. § 7805(a). This is nothing more than a general grant
of interpretative rulemaking power, and therefore cannot support the certification
regulations.”
Interpretative regulations can not be violated or enforced as held in Drake v.
Honeywell, Inc., 797 F.2d 603, 607 (8th Cir. 1986) totally understood by the Petitioner, to
wit:
As a consequence of this distinction, while an administrative agency

delegated legislative power may sue to enforce its legislative rule, just as it
may sue to enforce a statute, it cannot ground legal action in a violation
of its interpretive rule.
***
Being in nature hortatory, rather than mandatory, interpretive rules
never can be violated. [Emphasis added]
A later case of the 9th Circuit is in total accord with ibid. Drake is United States v.
American Production Industries, Inc., 58 F.3d 404, (9th Cir. 1995), to wit:
Only regulations having the “force and effect of law” can create a
private right of action. Chrysler Corp. v. Brown, 441 U.S. 281, 295-303,
99 S.Ct. 1705, 1714-18, 60 L.Ed.2d 208 (1979). In contrast, “rules of
agency organization, procedure, or practice”-sometimes called
“interpretive rules”-do not create enforceable rights. 5 U.S.C. §§
553(b), 553(d); Chrysler, 441 U.S. at 315, 99 S.Ct. at 1724; see also
Guadamuz v. Bowen, 859 F.2d 762, 771 (9th Cir.1988) (“[I]nterpretive
rules express an agency's ... internal house-keeping measures
organizing Agency activities.”). [Emphasis added]
Batterton v. Francis, 432 U.S. 416, 425 (1977) “By way of contrast, a court is not
required to give effect to an interpretative regulation.” In Shalala v. Guernsey Memorial
Hospital, 514 U.S. 87, 99 (1995) “Interpretive rules do not require notice and comment
. . . they also do not have the force and effect of law and are not accorded that
weight in the adjudicatory process.” See also Utah Environmental Congress v.
Bosworth, 443 F.3d 732, 746(10th Cir. 2006); Peabody Coal Co. v. Director, 182 F.3d

637, 642 (8th Cir. 1999); Michael v. The Radnor Township School Dist., 202 F.3d 642, 649
(3rd Cir. 2000).
Interpretative regulations cannot be modified unless the APA formal
rulemaking is used if any substantive change is made to a prior interpretative
regulation. In Visiting Nurse Assoc. v. Thompson, 447 F.3d 68 (1st Cir. 2006) citing the
holdings in Shalala v., Guernsey Memorial Hospital, 514 U.S. 87 (1995), to wit:
In Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 115 S.Ct. 1232,
131 L.Ed.2d 106 (1995), the Supreme Court found that § 233 of the
Manual [FN7] "is a prototypical example of an interpretive rule issued by
an agency to advise the public of the agency's construction of the statutes
and rules which it administers." Id. at 99, 115 S.Ct. 1232. The Court
continued: "[i]nterpretive rules do not require notice and comment ... they
also do not have the force and effect of law and are not accorded that
weight in the adjudicatory process." [FN8]Id. Finally, the Court held that
if § 233 had "adopted a new position inconsistent with any of the
Secretary's existing regulations," the APA's notice-and-comment
rulemaking process would be required. Id. at 100, 115 S.Ct. 1232. So
long as an interpretive rule does not "effec[t] a substantive change in
the regulations," notice-and-comment is not required and the
interpretive rule is valid. Id.; see also Levesque v. Block, 723 F.2d 175,
182 (1st. Cir.1983) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139-40,
65 S.Ct. 161, 89 L.Ed. 124 (1944)).
Citing Shalala, ibid., as to changes to interpretative regulations U.S. v. Hoyts
Cinemas Corp., 380 F.3d 558 (1st Cir. 2004) “effect[ed] a substantive change in the
regulations” . . . would require APA notice and comment, from those that really are
“interpretations[s]” of existing rules.” See also Professionals & Patients for Customized
Care v. Shalala, 56 F.3d 592, 601, 602 (5th Cir. 1995);
In United States v. Howard, (1 Cranch C.C. 15) 26 F.Cas. 96, 97, 98 (1801) on the
issues of “operation of law” is held meaning “obligation of law”, statutes are to be
strictly construed, a law ceases to be a law when it is no longer operative including a

future date and until there is an obligation of law a person has done nothing against the
law.
“Force and effect of law” has been held to mean in Production Tool Corp. v.
Employment and Training Administration, U.S. Dept. of Labor, 688 F.2d 1161, 1165 (7th
Cir. 1982) citing the holdings in Chrysler v. Brown, “Legislative rules are said to have the
“force and effect of law”-i.e., they are as binding on the courts as any statute enacted by
Congress. Chrysler, 441 U.S. at 295, 99 S.Ct. at 1714.”
The holdings in Chrysler v. Brown, 441 U.S. 281, 282, 283 (1979), to wit:
In order for a regulation to have the "force and effect of law," it must be a
"substantive" or "legislative-type" rule affecting individual rights and
obligations (as do the regulations in the case at bar), and it must be the
product of a congressional grant of legislative authority, promulgated in
conformity with any procedural requirements imposed by Congress.
***
@ 283 - since they were promulgated as "interpretative rules" without
complying with the APA's requirement that interested persons be given
general notice of an agency's proposed rulemaking and an opportunity to
comment before a "substantive rule" is promulgated. An "interpretative
regulation" cannot be the "authoriz[ation] by law"
There is a mandate of Congress in 5 U.S.C. § 552(a)(1) that all agencies, which
includes the Internal Revenue Service (“IRS”) 5 U.S.C. § 552(a)(1) “Each agency shall
separately state and currently public in the Federal Register for guidance of the public
– .” Continuing in 5 U.S.C. § 552(a)(1)(D) “substantive rules of general applicability
adopted as authorized by law, and statement of general policy or interpretations of
general applicability formulated and adopted by the agency;”
This is affirmed as published in the Federal Register November 19, 2002 at 67 FR
69673-69688 for 26 CFR § 601.702 @ ibid. 67 FR 69675 affirming the IRS is mandated

to comply with 5 U.S.C. § 552(a)(1) and also affirming as published in the Federal
Register of “and various substantive regulations under the Internal Revenue Code of
1986, such as the regulations in part 1 of this chapter (Income Tax Regulations)” as
published in the Federal Register November 19, 2002 at 67 FR 69673-69688, which this
court is to take judicial Notice of under 44 U.S.C. § 1507 and Evidence Rule 201. And
further ibid. @ 67 FR 69675 “(ii) Effect of failure to publish . . . any matter referred to in
paragraph (a)(1) [5 U.S.C. § 552(a)(1)] of this section which is required to be published
in the Federal Register, such person is not required in any manner to resort to, or be
adversely affected by, such matter if it is not so published . . .”
The only means to determine if a rule/regulation is a “substantive rule” in
compliance with the Administrative Procedure Act (“APA”) is found in 5 U.S.C. § 553
and specifically in 553(b)(c)(d).
The 9th Circuit clearly identifies the mandates of the APA to determine if a
regulation is a substantive regulations having the force and effect of law as evidenced by
this case being Paulsen v. Daniels, 413 F.3d 999, 1004-1005 (9th Cir. 2005) citing the
holding in Chrysler v. Brown, 441 U.S. 281 (1979), to wit:
The APA requires agencies to follow certain procedures when it decides to

issue a rule, including: (1) publishing notice of the proposed rule-making
in the Federal Register, 5 U.S.C. § 553(b); (2) providing a period for
interested persons to comment on the proposed rule, which comments
will be considered by the agency prior to adopting the rule, id. at §
553(c); and (3) publishing the adopted rule not less than thirty days
before its effective date, with certain exceptions that are not applicable
here, id. at § 553(d).
[2] “In enacting the APA, Congress made a judgment that notions of
fairness and informed administrative decisionmaking require that agency
decisions be made only after affording interested persons notice and an
opportunity to comment.” Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99
S.Ct. 1705, 60 L.Ed.2d 208 (1979); see also Riverbend Farms, Inc. v.

Madigan, 958 F.2d 1479, 1485 (9th Cir.1992) (“[T]he notice and comment
requirements ... are designed to ensure public participation in
rulemaking.”).
Are any of the Regulations Required by Act of Congress to be Published in the

Federal Register Part 1 “Substantive Regulations?”
All of the regulations published in 1960 have been conclusively proven to NOT
BE in compliance with the APA of 194643 and current codification in 5 U.S.C. § 553(b)(c)
(d) and are therefore merely “interpretative” regulations. All of the regulations are
precluded as a matter of law and by operation of law44, i.e. obligation of law to create any
duty or obligation upon the public or me. The specific Code sections where regulations
do exist will be specifically identified.
1. Interpretative Regulations Only - For 26 U.S.C. § 3401 [nonresident
alien or foreign corporations]. Definitions for §§§§§§§ 1.1441-2, 1.1441-3, 1.1441-5,
1.1441-6, 1.1461-1, 1.1461-2 and 1.162-1 are all precluded as they were republished
November 26, 1960 in the Federal Register at 25 FR 11402 – 25 FR 12162 admitting they
are only “interpretative” regulations at best. Under the Authority of ACFR which was
published in the Federal Register November 4, 1972 at 37 FR 23602-23615 clearly
mandates that the IRS state if it is compliance with the APA 45 and for § 1.1441-7 it does
not comply when first published in 49 FR 36830-7. All of the other Federal Register
publications clearly state in various forms of “It has also been determined that section
553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these
regulations.”
43
49 Stat. 500-503 Sections 4(a) and 4(c) enacted July 26, 1935; and, 2 FR 2454-2456,
November 12, 1937.
44
United States v. Howard, (1 Cranch C.C. 15) 26 F.Cas. 96, 97, 98 (1801)
45
1 CFR 1 § 5.9.

2. No Regulations Promulgated - 26 U.S.C. § 3402. Income tax collected
at source.
3. Interpretative Regulation Only - 26 U.S.C. § 6011 – General
requirement of return, statement, or list (Form 1040 – OMB 1545-0074) as §1.853-4
was republished on November 26, 1960 in the Federal Register 25 FR 11402 – 25 FR
12162 admitting they are only “interpretative” regulations. §1.6011-4T does not exist.
4. No Regulations Promulgated - 26 U.S.C. § 6012 – Persons required to
make returns of income (Form 1040 – OMB 1545-0074).
5. Interpretative Regulation Only - 26 U.S.C. § 6013 - “(e) Spouse
relieved of liability in certain cases [nonresident alien] – 26 CFR 1.6013-6 first
published the Proposed Rule in 43 FR 30308 in 1978 and the Final Rule in 1980 in 45 FR
6924, both were not in compliance with the 5 U.S.C. § 553(b)(c)(d). None of the
following publications were either.
6. Interpretative Regulations Only - 26 U.S.C. § 6041 – Information at
source [1099s] §§§ 1.6041-1, 1.6041-2 and 1.6041-3 were republished November 26,
1960 in the Federal Register at 25 FR 11402 – 25 FR 12162 admitting they are only
“interpretative” regulations.
7. No Regulations Promulgated - 26 U.S.C. § 6041A - Returns regarding
payments of remuneration for services and direct sales [1099s].
8. Interpretative Regulation Only - 26 U.S.C. § 6050E – State and local
income tax refunds §1.6050E-1 was derived from the regulations republished November
26, 1960 in the Federal Register at 25 FR 11402 – 25 FR 12162 then republished in

September 13, 1985 in 50 FR 37347 with no mention of 5 U.S.C. § 553(b)(c)(d) and then
in August 18, 2000 in 65 FR 50405 clearly stated 50 FR 37347-03
“It has also been determined that section 553(b) of the Administrative Procedure Act (5
U.S.C. chapter 5) does not apply to these regulations . . .” clearly marking this not in
compliance with 5 U.S.C. § 553(b)(c)(d).
9. No Regulations Promulgated - 26 U.S.C. § 6050F – Returns relating to
social security benefits (a) Requirement of reporting
10. No Regulations Promulgated - 26 U.S.C. § 6050I – Returns relating to
case received in trade or business, etc.
11. No Regulations Exists - 26 U.S.C. § 6061 – Signing of returns and
other documents26 U.S.C. § 6051.
12. No Regulations Promulgated - 26 U.S.C. § 6091 – Place for filing
returns or other documents.
numbers.- 26 CFR § 1.6109-2 was republished November 26, 1960 in the Federal
Register at 25 FR 11402 – 25 FR 12162 admitting they are only “interpretative”
regulations and the amendment of 67 FR 52862 published August 14, 2002 clearly stated
the regulation was not a “substantive regulation” with “It also has been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to
these regulations . . .”
14. No Regulations Promulgated - 26 U.S.C. § 6157 – Payment of Federal
unemployment tax on quarterly or other time period basis.

15. No Regulations Promulgated - 26 U.S.C. § 6161 – Extension of time
for paying tax – “(b) Amount determined as deficiency.
16. No Regulations Promulgated - 26 U.S.C. § 6203 – Method of
assessment.
17. No Regulations Promulgated - 26 U.S.C. § 6334 – Property exempt
from levy.
18. No Regulations Promulgated - 26 U.S.C. § 6343 – Authority to release
levy and return property.
19. No Regulations Promulgated - 26 U.S.C. § 6654 – Failure by
individual to pay estimated income tax.
preparation of income tax returns for other persons there are two regulations being §
1.6695-1 and § 1.6695-2 was republished November 26, 1960 in the Federal Register at
25 FR 11402 – 25 FR 12162 admitting they are only “interpretative” regulations, which
were amended several times with all Federal Register publications not in compliance with
5 U.S.C. § 553(b)(c)(d), i.e. as one example § 1.6691-1 and § 1.6691-2 in 74 FR 78430
published December 22, 2008 “It also has been determined that section 553(b) of the
Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.”
21. No Regulations Promulgated - 26 U.S.C. § 6696 – Rules applicable
with respect to sections 6694, 6695 and 6695A.
22. No Regulations Promulgated - 26 U.S.C. § 6863 – Stay of collection of
jeopardy assessments.

23. No Regulations Promulgated - 26 U.S.C. § 7425 – Discharge of Lien.
Taxes are only by Assessment or Revenue Stamps.
As published on November 22, 1967 in the Federal Register at 32 FR 15990-
16035 specifically at 32 FR 15990-91 being Attachment 7 of 26 CFR § 601.102 –
Classification of taxes collected by the Internal Revenue Service – “(a) Principal
divisions. Internal revenue taxes fall generally into the following principal divisions: (1)
Taxes collected by assessment. (2) Taxes collected by means of revenue stamps.”
AUTHORITY: 5 U.S.C. 301 and 552.” Subpart I also issued under 39 U.S.C. 3220
[Note by Person filing: 3220 not relevant – Use of official mail in the location and
recovery of missing children.]
Impotentia Excusat Legem

The impossibility of doing what is required by the law excuses from the
performance.
In the adjudged decision of Akins v. Adams, 164 S.W. 603, 608 (St. Louis Ct.
Appeals 1914), to wit:
"Impotentia excusat legem." No one (not even a judge) is bound to do

what is impossible. Strother v. Barrow, 246 Mo. loc. cit. 254, 151 S. W.
960.
In the adjudged decision of Strother v. Barrow, 151 S.W. 960, 964 (Sup. Ct Mo.
1912), to wit:
As the impossible excuses persons, so it excuses judges. Some of the

precepts of the law (of its very bones and framework) are: No one is
bound to do what is impossible. 2 Bou. 116. Impossibility is an excuse
in law. "Impotentia excusat legem." Coke, Litt. 29a.
In the adjudged decision of Fenton V. Clark, 11 Vt. 557, 561 (1839), to wit:

In cases where the act of God renders the performance absolutely
impossible, the contract is discharged, according to the maxim "impotentia
excusat legem."

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Case 4:09-cv-00037 RRB

this Memorandum in Support of Motion to Reconsider.

duty upon the Hymes by Operation of Law, i.e. Obligation of Law2.

Judge H. Russell Holland and Bankruptcy Judge Donald MacDonald IV has

Memorandum – Attachment 1 Page 1 of 39

U.S. 655, 661 (1978), to wit:

“[T]raditional use of the writ in aid of appellate jurisdiction both at

“Only exceptional circumstances, amounting to a judicial usurpation of power,

right to relief. Allied Chemical, 449 U.S. at 35.

Memorandum – Attachment 1 Page 2 of 39

IRS’s Claims are Fraudulent

has mandated that Assessment be in accordance with “rules or regulations prescribed by

accordance with rules or regulations prescribed by the Secretary. Upon request of

Congress specifically established a permanent “Administrative Committee” 5 wherein the

duties were specifically delegated to this committee to promulgate regulations to

Memorandum – Attachment 1 Page 3 of 39

current members of the “Administrative Committee” 7 were established on November 4th,

1972 as published in the Federal Register at 37 FR 23602.

Under the Authority of Administrative Committee of the Federal Register they

regulations promulgated for Assessment under the Authority of 26 U.S.C. § 6203.

Therefore, this precludes the existence of any Assessment or being Assessed

Memorandum – Attachment 1 Page 4 of 39

“force and effect of law.”

Informal Rule Making

Internal Revenue Service (IRS) for Individuals, Employees or Employers in Title 26 of

Memorandum – Attachment 1 Page 5 of 39

promulgate regulations in the Federal Register “documents or classes of

documents as may be required so to be published by Act of Congress”;

2. What regulations have been promulgated as mandated by Acts of

3. Identify if any of these regulations are “substantive regulations” having

the “force and effect of law” creating a duty or obligation of income

effect of law” has been modified making a substantive change invoking

the informal rulemaking of 553(b)(c)(d).

substantive regulations in existence today that have application to the Petitioner.

permanent “Administrative Committee”14 wherein the duties were specifically delegated

Memorandum – Attachment 1 Page 6 of 39

Committee”16 were established on November 4th, 1972 as published in the Federal

Register at 37 FR 23602. The current regulations mandated to implement the Federal

Offer of Proof 1 – There is a direct delegation of Congress to the Administrative

ACFR being Attachment 2.

Under the Authority of ACFR, 1 CFR § 1.118 in the definition of “Document”

mandates the publishing in the Federal Register of all documents of general

applicability and legal effect including those imposing an obligation, to wit:

Document having general applicability and legal effect means any

Memorandum – Attachment 1 Page 7 of 39

Federal Register of documents “Documents required to be published therein by law.”

Under the Authority of ACFR, 1 CFR § 5.2(b)(c)20 requires publication in the

Federal Register of documents “(b) Each document or class of documents required to be

legal effect.” [Emphasis added]

Under the Authority of ACFR, 1 CFR § 5.9(b)(c)21 Categories of documents

required to be published in the Federal Register, to wit:

Federal regulation of general applicability and legal effect.”

Memorandum – Attachment 1 Page 8 of 39

Register shall assist each agency . . . in promulgating administrative documents having

the effect of legal notice or of law.”

States Code, related statues . . .”

Under the Authority of ACFR, 1 CFR § 21.4025 of Authority citations “Each

section subject to codification must include or covered by, a complete citation of

authority delegated by statute; . . .”

Under the Authority of ACFR, 1 CFR § 21.4126 under “Agency responsibility”

citation of authority in its codified material to reflect any changes therein.”

Under the Authority of ACFR, 1 CFR § 21.4327 on “Placing and amending

Memorandum – Attachment 1 Page 9 of 39