Lindsey Springer explains defense and issues resulting from Trial on PRA and Form 1040
Bob Hurt
Lindsey explains what happened in his trial.
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Bob Hurt
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From: Lindsey Springer
Sent: Wednesday, November 18, 2009 12:18 PM
To:
Subject: Lindsey Springer explains defense and issues resulting from
Trial on PRA and Form 1040
Lindsey Springer here and through some careful clarification I am able to write to you regarding my defense in the case which, through Jury Instructions and an allen instruction late in the game, I was found guilty of conspiring to defraud the IRS by impeding, impairing, obstructing and defeating the lawful functions of the IRS in the computation, ascertainment, assessment and collection of income taxes (Count One)(form 1040). I was also found guilty by the same jury of attempting to evade income taxes for calender years 2000, 2003 and 2005(form 1040). I was also found guilty of willfully failing to file a Form 1040 U.S. Individual Income Tax Return for calender year 2002 and 2004(form 1040).
IF YOU READ THIS SLOWLY AND CAREFULLY YOU WILL UNDERSTAND THE PROBLEM THE WAY I SEE IT-
As you are all aware I tried to present a complete and good faith defense to the claims alleged that under the Paperwork Reduction Act of 1995 that I was not subject to any penalty for failure to answer the questions on Form 1040 for any years because that Form, according to my understanding, miserably failed to comply with the requirements of 44 U.S.C. section 3506(c)(1)(B). Also, to my understanding as well, the Form 1040 appeared to me that it did not contain any of the information certified by the IRS to OMB on Form 83-I that OMB required Form 1040 to display and inform the public for any year. OMB states that 5 CFR 1320.8(b)(3) and 1320.9 govern the certification made by the IRS to get OMB # 1545-0074.
I was allowed to read from the GAO Report from 2005 which on Page 34 zoomed into the heart of the matter as far as I am concerned. That report is located at the United States Government’s Web Page: http://www.gao.gov/new.items/d05424.pdf
On this page it explains how USGAO tells US IRS they are violating the Paperwork Reduction Act on Forms that merely state "the Internal Revenue Laws of the United States" when informing the person what specific law surrounds and supports the IRS’s request for the information on Forms such as Form 1040.
As you can read for yourself, USGAO reports that US IRS thinks by telling you the specific provisions instead of the phrase "the Internal Revenue Laws of the United States" you would be burdened and as a result believe it is unnecessary and inappropriate to comply with Federal Law. In short, my understanding of the IRS position taken with GAO is they think telling you and me the law would confuse you.
Problem is that no where on the Form 1040 could I find the words "the Internal Revenue Laws of the United States." Look at any Form 1040 for yourself and decide for yourself whether I misled you in any way. If I have misled you in any way I am sorry and please do not ever take my word for anything. If you are like me then always go check things out for yourself. Even under the US IRS position if the Form 1040 does not state "the Internal Revenue Laws of the United States" then Form 1040 would not comply with even IRS’s ambiguous standard. The way I read it USGAO reported to Congress US IRS was in direct violation of the Paperwork Reduction Act and OMB Regulations. Hmmm, where did they get that idea?
Anyway, during the trial the US DOJ continued to maintain the Form 1040 did not have to comply with the Paperwork Reduction Act of 1995 because the obligation to file a "return" was mandated by statute. Here is an exchange during cross examination of me by Charles O’Reilly from the US DOJ:
Q. There is absolutely nothing in Dole that supports
10 your position, is there?
11 A. Dole says typical information collection requests
12 include tax forms. The issues --
13 Q. Does it ever mention the Internal Revenue Service in
14 its entire opinion?
15 A. No, does not mention the Internal Revenue Service.
16 Q. Mr. Springer, does it ever mention the Form 1040?
17 A. No, it does not.
See Transcript, page 23, line 9.
O’Reilly- Cross
Q. You've read, for example, the GAO report that you
4 referenced on Tuesday?
5 A. Yes.
6 Q. When you were reading that to the jury on Tuesday,
7 you almost omitted reading the passage in footnote 50
8 until Mr. O'Reilly, I, objected and that phrase was,
9 "However, the public protection provision may not apply
10 if a collection is mandated by statute (e.g., the
11 requirement to file a tax return)."
12 Please tell the jury why you were going to omit that
13 statement.
14 A. Actually, I wasn't intending to omit it. I believe
15 it was covered on page 34 quite extensively in the
16 report, which I read to the jury, that stated that the
17 IRS, if they want to claim a specific form is mandatory,
18 that they are required to cite the specific statute and
19 state on the form your obligation to answer these
20 questions is mandatory. And that's what the report said.
21 Q. Mr. Springer, isn't it a fact it is mandatory and
22 you know it?
23 A. What is mandatory?
24 Q. The filing of a return.
25 A. My understanding of the Form 1040 is that in order
Page 11 Ends
LINDSEY SPRINGER - CROSS BY MR. O'REILLY
1 for it to be mandatory they must tell you that, they must
2 tell me that, and they must cite their authority for it.
3 And that's what the Government Accountability Office said,
4 and I agree with them. In fact, I had been making that
5 statement for years before the report was actually
6 drafted.
7 Q. Mr. Springer, how many cases have you read involving
8 the Paperwork Reduction Act in criminal willful failure
9 to file cases?
10 A. Every case ever mentioned the word Paperwork
11 Reduction Act I've read them over and over and over
12 again.
13 Q. Is your reading of those cases a basis for your good
14 faith?
15 A. Reading those cases develops but is not the basis
16 for.
17 Q. That's because there is no case that has said what
18 you claim. In fact, every case has stated, that
19 addresses it, that failure to file a tax return is not
20 protected by the Paperwork Reduction Act; isn't that
21 true?
22 A. That is not true.
23 Q. Name one case that is a published opinion that says
24 otherwise, sir.
25 A. First of all --
Page 12 Ends
LINDSEY SPRINGER - CROSS BY MR. O'REILLY
1 Q. Sir, I asked you a question, to name a case. I
2 didn't ask you to opine.
3 THE COURT: Wait just a minute. First of all, I
4 need to understand the question. Does your question
5 relate to criminal prosecutions for willful failure to
6 file?
7 MR. O'REILLY: Yes, Your Honor.
8 THE COURT: Okay. Proceed.
9 MR. SPRINGER: United States v. Collins, 1990,
10 Tenth Circuit Court of Appeals, footnotes 12 and 13,
11 clarify it with undeniable terms.
12 Q. (BY MR. O'REILLY) Mr. Springer, is that the case in
13 which the Court said, "Dickstein" -- who was referenced,
14 I believe, by Mr. Bennett, "thus lacked any arguable
15 basis in fact or law to argue that the non-compliance of
16 the 1040 forms, which defendant failed to file, did not
17 comply with the Paperwork Reduction Act. His argument is
18 legally frivolous." Is that the case you're talking
19 about?
20 A. That is part of the case that I'm talking about.
21 MR. SPRINGER: Your Honor, I object? He --
22 he did not read the entire opinion just then. And when I
23 did that, he made me read something else. Could you
24 please have him read footnotes 12 and 13 to the jury so
25 that they are not misled by his statement?
Page 13 Ends
LINDSEY SPRINGER - CROSS BY MR. O'REILLY
1 THE COURT: I need to see what footnotes 12 and
2 13 say.
3 MR. SPRINGER: Defendants' Exhibit Number 74,
4 Your Honor.
5 THE COURT: First of all, that Collins case
6 doesn't involve a charge of willful failure to file.
7 Given my understanding of this line of questioning, I'm
8 having a hard time with the relevance of this case to
9 this line of questioning, but the relevant -- the
10 footnotes that are involved here are which?
11 MR. SPRINGER: Twelve and 13, Your Honor.
12 THE COURT: Let's -- first of all -- we'll
13 address that one step at a time. First of all,
14 Mr. O'Reilly, it was my understanding -- and let's just
15 make sure that all concerned understand where the matter
16 stands at this point. It was my understanding that your
17 question was whether Mr. Springer was aware of a case in
18 which the charge was willful failure to file and the
19 Court held that the Paperwork Reduction Act was a
20 substantive defense. Is that correct?
21 MR. O'REILLY: Yes, Your Honor.
22 THE COURT: Okay. Mr. Springer, you may answer
23 that question.
24 MR. SPRINGER: Was a substantive defense?
25 Q. (BY MR. O'REILLY) Yes, sir.
Page 14 Ends
LINDSEY SPRINGER - CROSS BY MR. O'REILLY
1 A. I don't know of any case where a substantive defense
2 was raised on willful failure to file a tax form, Form
3 1040, ever.
4 THE COURT: Now, Mr. O'Reilly can read those two
5 footnotes or Mr. Springer can read those two footnotes
6 and you can do it now or later. It seems likely that one
7 way or another they'll be read. The relevance is another
8 matter, but you may proceed.
9 MR. O'REILLY: Thank you, Your Honor.
10 Q. (BY MR. O'REILLY) Mr. Springer, stepping back a
11 bit, you read, on Tuesday,
As you can see, Mr. O’Reilly chose not to proceed into Footnote 12 and 13 of the Collins decision. I am reproducing those two footnotes for you to see how Mr. O’Reilly’s "filing of a return is mandatory" question was actually addressed in Footnote 12:
U.S. v. COLLINS, 920 F.2d 619, 630 (10th Cir. 1990)
[fn12] In United States v. Tedder, 787 F.2d 540, 542 (10th Cir. 1986), this court held that tax forms were not information collection requests subject to the Paperwork Reduction Act because the filing of income tax returns was obligatory. This holding is superseded by the Supreme Court's analysis in Dole v. United Steelworkers, ___ U.S. ___, 110 S.Ct. 929, 933, 108 L.Ed.2d 23 (1990), which included federal income tax forms within the category of information collection requests under the Act. Dole would also appear to call into question the holdings in Snyder v. IRS, 596 F. Supp. 240 (N.D.Ind. 1984) and Cameron v. IRS, 593 F. Supp. 1540 (N.D.Ind. 1984), aff'd 773 F.2d 126 (7th Cir. 1985), both of which held the Paperwork Reduction Act inapplicable to IRS forms. However, Dole does not contravene our recent holding in Lonsdale v. United States, 919 F.2d 1440, 1444 (10th Cir. 1990) that IRS summonses do not constitute information requests under the Act because they are issued in the course of an investigation directed against a specific individual or entity. See 44 U.S.C. § 3518(c)(1)(B)(ii).
Footnote 13 says:
U.S. v. COLLINS, 920 F.2d 619, 630 (10th Cir. 1990)
[fn13] In United States v. Weiss, 914 F.2d 1514, 1520-22 (2d Cir. 1990), the Second Circuit held that the Paperwork Reduction Act did not preclude prosecution for filing false medicare and Medicaid claims, despite the fact that the forms in question did not contain OMB control numbers. Distinguishing Smith, where defendants were prosecuted for failure to file a Plan of Operations with the Forest Service, the Second Circuit reasoned that the Act "`only protects a person from penalties for failing to files information It does not protect one who files information which is false.'" Id. at 1522 (quoting Funk, The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law, 24 Harv.J. on Legis. 1, 77 n. 411 (1987)) (emphasis in original). We recognize that because defendant was charged with tax evasion and not failure to file tax returns, he technically was not being prosecuted for failure to provide information. Had defendant's tax evasion been effectuated through the filing of falsified tax returns, Weiss would dictate that no Paperwork Reduction Defense would be available to him. But because the provision of information in 1040 forms is inexorably linked to the statutory requirement to pay taxes, and defendant failed to file such forms, the Paperwork Reduction Act was applicable to such conduct.
REMEMBER WHERE MR. O’REILLY SAID IN THE DOLE CASE THE FORM 1040 WAS NOT EVER MENTIONED OR THE PHRASE INTERNAL REVENUE SERVICE WAS NOT MENTIONED?
NOT LINDSEY SPRINGER BUT THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT SAID "which included federal income tax forms within the category of information collection requests under the Act." See footnote 12 above.
Remember when Mr. O’Reilly pointed out page 31 and footnote 50 which connected this paragrarph:
• a statement that the public has a right not to respond to the request for information if a valid OMB control number is not displayed.50
Footnote 50 reads:
50 The requirements for this statement and the OMB number are together known as the "public protection provision," in that a person cannot be penalized for not responding if either the control number or the statement is absent. However, the public protection provision may not apply if the collection is mandated by statute (e.g., the requirement to file a tax return).
I have reproduced page 34 herein for you to read and understand what my claim regarding the "Mandated by Statute" position is:
In the case of IRS, most of the agency’s noncompliance resulted from forms that did not cite the tax law that requires the information to be collected. OMB regulations and guidance state that agencies are to cite the law or other authority whenever the collection of information is required to obtain or retain a benefit (such as a passport or Social Security payment) or is mandatory (with civil or criminal sanctions imposed for failure to respond).51 However, the following typical PRA notice on IRS forms omits the required reference to the law:
We ask for the information on this form to carry out the Internal Revenue laws of the United States. You are required to give us the information. We need it to ensure that you are complying with these laws and to allow us to figure and collect the right amount of tax.
When we discussed with IRS officials why the specific tax law requiring information to be reported was missing in one of our case studies, the IRS Reports Clearance Officer stated that IRS’s burden estimation methodology increases the burden estimate when a specific law is mentioned in order to include the time required to read the law. Further, IRS officials told us that citing the "Internal Revenue laws of the United States" provided adequate disclosure and that on many forms, it would be impractical to cite a specific law authorizing the collection. Nonetheless, the regulations require citation of the law so that respondents are fully informed. Until IRS corrects this language on the forms, respondents may not know what law is associated with the information requested.
If information collections do not comply with the PRA requirements described, the public may be asked to provide information without appropriate disclosure of the information that would allow the public to exercise scrutiny of agencies’ collections.
What is "public to exercise scrutiny of agency collections" mean? "You are not required to provide information on a Form subjet to the Paperwork Reduction Act unless the Form displays a valid OMB control number (issued in accordance with this subchapter).
As I explained to the Jury, it is my understanding that if the IRS contends answering their questions on Form 1040 is "mandated by statute" then there is two things the IRS must display first to OMB for approval and then to the public at which the Form 1040 is intended.
First, they must cite the mandating statute of the tax code that makes it mandatory to answer questions on Form 1040 and Second, they must write these words: Your obligation to answer the questions on this Form is Mandatory. It is my and USGAO’s understanding that without these two displays on Form 1040 there is no obligation whatsoever. Furthermore, I could not find any code section that even mentions form 1040 or defines the term "return."
I did find section 6011 which begins "when required by regulations prescribed by the Secretary any person made liable for any tax imposed by this title...." This group of words would clearly support the 10th Circuit’s position that the obligation stems from a request for information and not from some mandating statute as Mr. O’Reilly suggested.
I, like USGAO, could not find the words on Form 1040 "Internal Revenue laws of the United States" or "your obligation is mandatory." In fact, I could not find any words on the Form 1040 which identify any statute or any statement of mandatory whatsoever.
During the trial on more than one occasion the District Judge told the Jury that the Form 1040 did not violate the Paperwork Reduction Act and in fact did comply.
As you can see the US DOJ says the requirement to file Form 1040 is mandatory ["That's because there is no case that has said what (18) you claim. In fact, every case has stated, that (19) addresses it, that failure to file a tax return is not (20) protected by the Paperwork Reduction Act; isn't that 21 true"] and that the Paperwork Reduction Act of 1995 does not apply to that obligation (why he had me read footnote 50 on page 31) and the District Judge told the Jury the Form 1040 did comply with the Paperwork Reduction Act repeatedly.
In fact, in the middle of my closing argument Mr. O’Reilly objected to statements I was making on the grounds the obligation to file was not subject to the Paperwork Reduction Act and the District Judge response to this objection was to tell once again the Jury that the Form 1040 did not violate the Paperwork Reduction Act and did comply.
So, I am only allowed in good faith to show why I believed the Form 1040 did not comply with Federal Law (Position 1) and the US DOJ is opposing arguing the Form 1040 is not subject to the public protection of the Paperwork Reduction Act in effort to oppose my defense (Position 2) while the District Judge continues to tell the Jury the Form complies in all respects with the Paperwork Reduction Act of 1995 (Position 3).
CAN YOU NOW SEE WHAT THE PROBLEM IS WITH THE IRS? Do you think the jury got confused?
The United States Government Accountability Office says IRS must comply and does not.
U.S. DOJ argues the IRS does not have to comply because the obligation to file is statutory and a mandate.
The United States Judicial Branch says IRS must comply but without any findings of facts whatsoever. The District Court says Form 1040 does not violate the Paperwork Reduction Act.
Springer argued the Form 1040 is required to comply with the Paperwork Reduction Act and OMB Regulations and further argued Form 1040 contains none of the required displayed information and in fact does not comply with the Paperwork Reduction Act of 1995 or OMB regulations IRS certified they would comply with.
Anyway, I hope this helps you understand why your support for me during this defense was and remains vitally important to all of us. On August 31, 2009, the United States Court of Appeals for the Tenth Circuit reported and published its decision which, true, I did lose on whether failure to pay penalties and interest were penalties protected by the Public Protection Provision (on its way to Supreme Court), Title 44, Section 3512(1995), but what the Panel did say should show you where I am and where the 10th Circuit is stuck:
"Mr. Springer has not alleged any cognizable PRA violations with respect to those penalties. Instead, the only PRA violations he asserts concern the IRS Form 1040. The failure-to-pay penalties have an independent and separate statutory basis under the Internal Revenue Code, however, that is not based on Mr. Springer’s failure to file Form 1040s for the tax years in question."
"Although Mr. Springer’s appellate briefs are far from a model of clarity, he has managed to advance several arguments in this appeal that raise difficult issues under both the tax code and the PRA."
"While we commend the Commissioner for the extremely helpful statement of the case and statement of facts in his response brief, we also note that the Commissioner himself has made a frivolous argument in his response brief and motion for sanctions that mischaracterizes what happened in Mr. Springer’s prior appeal to this court."
I know some of you probably wonder why this all matters. When the United States Government Accountability Office and United States Treasury cannot agree on what the law requires regarding Form 1040, that is a big deal and something we should never overlook. When the United States Government Accountability Office and United States Department of Justice do not agree on what the law requires regarding Form 1040, that is a big deal and something we should never overlook. When the United States Government Accountability Office and the United States Judiciary cannot agree on what the law requires regarding Form 1040, that is a big deal and something we cannot ever overlook. When a member of the public is willing to expose it all so the rule of law can once again prevail in the life of every American regarding Form 1040, that is priceless.
The Court is allowing me to continue to receive support during my defense of this case and actually made an exception yesterday to its order which does allow you to continue to support me without jeopardizing my bond conditions. I am so thankful as I thought I had made it this far and it was to be for nothing. I can no longer receive any support in the name of "Bondage Breaker's Ministries" until the Court Order is reversed or changed. I can only receive support in the name of Lindsey Springer. I can receive support through paypal at gnut...@mindspring.com or lin...@mindspring.com. As always, I can receive support at 5147 S. Harvard, # 116, Tulsa, Oklahoma, 74135 in the name of Lindsey Springer. Please continue to show your support for me and the issues I am on.
THANK YOU FOR STANDING WITH ME. I AM SORRY IF YOU THINK I LET YOU DOWN BY BEING FOUND GUILTY. I WILL CONTINUE TO DEFEND MY UNDERSTANDING TILL MY LAST BREATH OR THE COURT SYSTEM ADDRESSES THE MERITS OF MY CLAIMS HEAD ON WIN, LOSE OR DRAW.
November 18, 2009
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