Irwin Schiff's Supplemental Appeal

Note about Appearance

When these two Supplemental Appeals

This Appeal was filed by Irwin Schiff to
supplement the appeal being filed by his lawyer.
The Appeal Docket # is 06-10199 and the Case
# is CR-S-04-0119-KJD-LRL.
were created and filed with the Court,
they were properly double-spaced and
typed by Irwin on a prison typewriter.
To save space and make them more
presentable on the Internet we
reformatted them with single spacing
and a little cosmetic editing.

Letter from Irwin Front page List of Cited Authorities Footnotes

Irwin's Supplement to this Supplemental Appeal

Issues Presented
1. The Government's Burden
2. The Government Did Not Prove The Law Imposed a Duty on Defendant
3. Schiff Cannot be Guilty of Count 17
4. Jury Instructions 20, 24 and 25 Erroneous
5. The Court Gave an Erroneous Charge With Respect to the Meaning of "Income"
6. The Court Erred in Not Giving the "Bishop" Charge

1. The Government's Burden

In Cheek v US (1991) 498 US 192 the Supreme Court held that the government has a
threefold burden in connection with income tax prosecutions, which it stated as follows:
Willfulness, as construed by our previous decisions in criminal tax cases,
requires the government to prove that the law imposed a duty on the
defendant, that the defendant knew of that duty, and that he voluntarily and
intentionally violated that duty. (Emphasis added)
The government, as the following will show, did not meet any of its burdens as mandated by
the Supreme Court.

2. The Government Did Not Prove The Law Imposed a Duty

on Defendant
Proof is defined in Ballentine's Law Dictionary, 3rd Edition, as follows:
Evidence. More precisely, the effect of evidence; the establishment of a fact by
evidence...

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 The American Heritage Dictionary of the English Language defines "proof" as follows:
The evidence establishing the validity of a given assertion.
Based upon the meaning of "proof", did the government prove that some law imposed a
duty on the defendant? In what way did the government prove it? Did the government
introduce any evidence at trial concerning a tax law that "imposed a duty on the defendant"?
NO! Did the government put on any witness who would testify (and be subject to cross
examination) concerning a tax law that "imposed a duty on defendant"? None whatsoever!
During the trial, Defendant asked the Court, "When is the Government going to prove that
the law imposed a duty on the defendant?" The Government's answer was "We do not intend
to prove it, since the Court will instruct the jury on the law." [1] So the government
admittedly was going to default on its burden of having to prove the law (some law)
"imposed a duty" on defendant and would rely on the Court to meet its burden for them by
way of a Jury Instruction.
However, a judge's charge to the jury is not "proof" of what the "law" is. There have been
numerous reversals based upon erroneous jury instructions concerning what the "law" is.
Even appellate courts disagree on what the "law" is, resulting in "dissention among the
circuits." And even Appellate courts get reversed (by the Supreme Court) based upon their
erroneous application of "the law." But in the instant case, Judge Dawson gave a jury
instruction that displayed a totally bizarre understanding of "the law."
In Jury Instruction #19, Judge Dawson referred to Code Sections 1, 61, 63 and 6012 and
then charged the jury that "These sections, working together, make an individual liable for
income taxes." Such a claim finds absolutely no support anywhere in American
jurisprudence. What makes this instruction even more incomprehensible is that Defendant
provided the Court with a number of pleadings (Docket numbers 14, 66, 78 and 107) in
which Defendant quoted numerous statutes in which Congress specifically made persons
"liable" for various federal taxes, such as 26 USC 1461, 4103, 4401, 5005 and 5703, having
to do with wihholding, petroleum, wagering, liquor and tobacco taxes. In each of those
instances, it did not take a number of statutes "working together" to establish the liability in
question; one statute did it.
Obviously, it would take only one statute to establish an income tax "liability", if Congress
intended to establish such a liability. Congress would not have done so by using four
statutes, none of which even mention "liability."
In addition, Defendant provided the Court with numerous excerpts from court decisions,
such as the following which were included in Document #107 (which showed Schiff's
"objections" to the Magistrate's "Report and Recommendation", Doc #85) which showed
that "liability" must clearly appear in the statute allegedly imposing the liability. For
example:
Moreover, even the collection of taxes should be extracted only from persons
upon whom a tax liability is imposed by some statute Botta v Scanlon 288 F2d
504, 506
Liability for taxation must clearly appear Higley v Commissioner 69 F2d 160

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 A tax is a legal imposition exclusively of statutory origin (37 Cyc 724, 725)
and naturally, liability to taxation must be read in the statute, or it does not exist
Bente v Bugbee 137A 552, 553, 103 NJ law 608
While Judge Dawson's jury instruction is in conflict with all of the above, the holding of the
9th Circuit in Roat v C.I.R. 847 F2d 1379, 81 is in harmony with all of the above.
In Roat, appellants argued that "the deficiency provision (in §6211) should be read in
conjunction with another statute, 26 USC 6020(b)." In rejecting this argument, the 9th
Circuit said:
Nothing in the language of either statute suggests Section 6211(a) should be
read together with Section 06020(b). Nothing in the Code's structure suggests
the statutes should be read together, either. Section 6020 resides in Chapter 61
of Title 26, governing information and returns. By contrast, Section 6211
resides in chapter 63, governing assessments. See Hartman, 65 C at 545. [2]
Tax policy calls for the statutes to be read independently." (Emphasis
added.)
Similarly, nothing in the language of Sections 1, 61, 63 and 6012 suggests that these statutes
should be read together, much less that they "work together" to make persons "liable" for
income taxes when the word "liable" does not appear in any one of those statutes.
It is clear that the 9th Circuit's unequivocal holding in Roat that "tax policy calls for the
statutes to be read independently" renders Judge Dawson's jury instructions null and void
and it was plain error for him to have given it. This error was material, fundamental and
crucial to Defendant being found guilty on all counts.
In addition, as Defendant had also pointed out in his pre-trial motions (Doc # 85,78, 14, 66)
the Disclosure Notice in a 1040 booklet (page 1 of Schiff's Excerpt of Record) only notices
the public that Code Section 6001, 6011 and 6012 are somehow related to why persons
"must file" tax returns. There is no mention in the Disclosure Notice of Code Sections 1, 61
and 63 - much less that they "work together" with Code Section 6012 to make persons
"liable" for income taxes, and the Treasury Department, by law, would have to mention this
fact in the Disclosure Notice if these statutes operated in the manner suggested by Judge
Dawson.
The Court, by giving a jury instruction that the 9th Circuit had already ruled was erroneous,
failed to meet the Government's expectation that the Court would give a jury instruction that
would absolve it from having to prove, during its case in chief, that "the law (some law)
imposed a duty on the defendant."
Therefore, the Government failed to meet its first burden as required by Cheek and, as a
result, Defendant's conviction as to all counts must be reversed, based just on this failure
alone.

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 3. Based on Government Documents, Schiff Cannot be
Guilty of Count 17
In Jury Instruction #33 the Court charged the jury, in accordance with Sansone v US, 380
US 343, that "in order for you to find Mr Schiff guilty of the charges in Count 17 (with
respect to the years 1979-1985) you must find a tax deficiency existed for those years." The
jury could not have found that a "tax deficiency" existed for those years [3] because
Government documents prove that no such deficiencies existed in any of those years.

(A) For the Years 1980-85

Included in Schiff's "Excerpts of Record" page 21 are excerpts from the IRS decoding
manual "ADP and IDRS Information." It shows that a transaction code (TC) 300 indicates
an "additional tax or deficiency assessment." Pages 3-8 of Schiff's Excerpts of Record
contain IRS documents which were introduced at Schiff's criminal trial, that showed income
tax assessments and other tax activities for the years 1980-1985. Each record shows an entry
coded 300 and identified as "additional tax assessed by examination." These entries
therefore represent the "deficiencies" for each of those years and they are all shown as
"0.00" or zero. Therefore they show no deficiencies existed for any of the years 1980-1985,
and pursuant to Sansone v US supra, and the Court's instruction, Schiff cannot be found
guilty for any of the years 1980-1985 because no deficiencies existed in any of those years.

(B) For the Year 1979

Showing that there was no valid deficiency for the year 1979 is slightly more complicated.
Schiff has included in his "Excerpts of Record" pages 9 thru 13 the IRS documents showing
all of the assessment and other income tax activity with respect to him for the year 1979.
It shows a TC 150 entry as of 05-20-1985, which claims that a "return was filed" and an
assessment was made. The amount claimed to have been assessed was "0.00." In other
words, no actual tax liability was assessed as of that date. However, the IRS recorded a
"return filed" for that year, when Schiff did not file a return as acknowledged by the 9th
Circuit in its ruling of Sept 11th 2006 (US v Schiff - Docket # 05-15233) - in which it noted
on page 2 "Schiff filed no tax return in 1979." Well, if Schiff filed no tax return in 1979,
how could the IRS claim that he did?
The return referred to in that entry was a "dummy" return prepared by the IRS as shown in
Schiff's Excerpts of Record at page 14. If one were to ask the IRS what statute authorized
the IRS to prepare such a "Dummy" return, they would say §6020(b). However, §6020(b)(2)
states: "Any return so made and subscribed to by the Secretary shall be prima facie good
and sufficient for legal purposes." So in order for this "substitute [dummy] return" to be
good for anything, it had to be "Subscribed to" by the Secretary or his delegate, but this
return was not "Subscribed to" by anybody. Therefore it was not good for any purpose
whatsoever [4]. In addition, §6020(b) does not indicate that returns prepared pursuant to it
are "Substitute" returns. The returns contemplated by §6020(b) are, obviously, actual returns
(not substitutes) from which legitimate assessments can be made.

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 Therefore, it is clear that the "return" referred to in that first entry can serve no legal
purpose. While the 0.00 assessment associated with it was in fact illegal [5], §6203 makes
clear that the Secretary is authorized to assess only "the liability of the taxpayer." In
claiming to have assessed "zeros" as Defendant's tax "liability" the Secretary would have
assessed an absence of a liability and the law does not allow the Secretary to assess, as a
liability, the absence of one.
Thus, it is clear that the entire first entry on that document was both fraudulent and illegal,
thus invalidating every succeeding entry, including the $44,199 alleged deficiency [6].

In addition, the $44,199 alleged deficiency was determined by the US Tax Court. However,
26 USC 6215 states, in relevant part, "...the entire amount determined as the deficiency by ...
the Tax Court shall be assessed and shall be paid upon notice and demand from the
Secretary." [Emphasis added.] 26 USC 6303 requires that the notice and demand be sent out
"within 60 days after the making of an assessment..." Since the document shows that 1979
assessments were made on 5/20/85 and 9/3/92, a "notice and demand" for payment had to be
sent out before 7/20/85 and 11/3/92. However, an examination of the five (5) pages
constituting Schiff's 1979 income tax activities reveals that no "notice and demand" for
payment was ever sent to Defendant Schiff for that year.
Therefore, not only was this failure "fatal to the acquisition of the government's lien" against
Schiff (US v Coson, 286 F2d 453 (9th Circuit 1961) [7] but its deficiency determination was
never finalized by the sending out of a notice and demand for payment, as required by 26
USC 6215. Based on all the above, it is clear that:
1. there were no deficiencies for the years 1980-85, and
2. no lawful deficiency existed for the year 1979
Therefore, Defendant Schiff's 7201 conviction as contained in Count 17 must be reversed
and dismissed because no deficiencies existed in any of the years at issue in Count 17.

4. Jury Instructions 20, 24 and 25 Were All Given Contrary to

Law
Apart from the erroneous Jury Instruction #19, already discussed, the Court gave a number
of other erroneous jury instructions, three of which Defendant discusses below.
1. In Jury Instruction 25 the Court instructed the jury that "the Internal Revenue Service...
is an agency of the United States." That instruction was incorrect, as Schiff pointed out to
the Court at a jury instruction conference in chambers. Congress never passed a law
establishing the IRS as an agency of the federal government; so the IRS cannot be "an
agency of the United States" as the Court charged in this instruction. Congress merely
created the office of Commissioner of Internal Revenue as an office within the Treasury
Department when it passed the Revenue Act of 1862 - and that is as far as it got.
Schiff objected to this instruction, and giving it did not amount to "harmless error" because
it invalidates Jury Instruction 24. Defendants could not have been guilty of "impeding,
impairing obstructing and defeating the Internal Revenue Service on ascertaining,

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 computing assessing and collecting taxes in violation of 18 USC 371" as stated in Jury
Instruction 24, because (a) the IRS does not exist as a federal agency and (b) Congress never
gave the IRS or the Commissioner any authority to "ascertain, compute, assess or collect"
income taxes as charged in Jury Instruction 24. All such authority (in the 1954 Code) was
given only to the Secretary of the Treasury, who was also authorized to delegate such
authority, pursuant to 26 USC 7701(12), to "any officer, employee or agency of the
Treasury" but he never did so.
For the Secretary to have legally delegated his authority to enforce the income tax to the
Commissioner (who could then redelegate his authority to lower level Treasury employees
in his Department) the Secretary would have had to (i) issue such an order and (ii) publish it
in the Federal Register, so the public would be made aware of it, and could act accordingly;
for §1505 of Title 44 requires that "every document" having "general applicability and legal
effect" be published in the Federal Register. But no such delegation order has ever been
published in the Federal Register.
Obviously, the issuance of such a delegation order would have widespread consequences
and "legal effect" upon the American public. It would subject the public to the authority of
thousands of federal employees to whom the law itself does not subject them. Obviously an
order which would have such a sweeping impact on the public would have to be published
in the Federal Register as required by law. But it was not.
For the Government to claim, in response to this objection, that any such delegation order is
an internal Treasury Department document, so it would not need to be published, is totally
without merit. If this were true, then the authority of IRS personnel would apply only to
Treasury Department personnel, not to the general public. But since it is the claim of the
Government (and the District Court) that the authority of the IRS extended to the
Defendants they would have had to be officially notified of that fact by the publication of
such a delegation order in the Federal Register. Because it was not published the authority
of the IRS over the Defendants is without "legal effect", thus nullifying all the charges in
Schiff's indictment. In addition, the claim in Jury Instruction #20 regarding delegation of
authority, such as "The actual task of collecting the taxes, however, has been delegated to
the local IRS directors" and "The delegation of authority down the chain of command, from
the secretary to the Commissioner of Internal Revenue, to local IRS employees, constitutes a
valid delegation by the Secretary to the Commissioner and a redelegation by the
Commissioner to the delegated officers and employees" are all without merit. As explained
above, in order for the Commissioner to have an authority capable of being "redelegated"
his original delegation of authority would have to have been published in the Federal
Register; but it was not. Therefore, all claims in Jury Instruction 20 with respect to the
alleged authority of the IRS based on its receiving "redelegations" of authority from the
Secretary have no legal substance and are without merit.
Therefore, Jury Instructions 20, 24 and 25 instructed the jury contrary to law, and, as such,
giving such instructions amounted to plain error and the error was not "harmless." The
challenged instructions gave the jury a totally erroneous understanding of the legal authority
of the IRS and the Defendant's conviction must, accordingly, be reversed on this ground.

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 5. The Court Gave an Erroneous Charge with Respect to the
Meaning of "Income"
In Jury Instruction #44, the Court charged the jury that "Gross income includes the
following..." The Court then listed such items as compensation for service, interest, rent and
dividends; the implication being that such items are made specifically taxable by the 1954
Code.
However, no such wording appears in Section 61 of the 1954 Code, though such wording
did appear in the repealed Section 22 of the 1939 Code. So rather than charge the jury on the
basis of the law as it appeared in the 1954 Code, the Court charged the jury on the basis of
the law as it appeared in the 1939 Code.
Section 61 of the 1954 Code is captioned "Gross income defined." It then goes on to
"define" it by saying "Gross income means all income from whatever source derived."
Therefore, since Section 61 "defines" "Gross income" with the word "income", one has to
know the meaning of "income" in order to know the meaning of "gross income." But since
the Code does not define "income", it therefore does not define "gross income" despite the
claim in the caption of Section 61.
In Eisner v Macomber, 252 US 189, 206 the Supreme Court explained why the definition of
"income" does not appear in the Code: Congress has no authority to define the meaning of
"income." In Eisner the Court said:
In order, therefore, that the clause cited from Article I of the Constitution may
have proper force and effect... it becomes essential to distinguish between what
is and is not "income"... Congress cannot by any definition it may adopt
conclude the matter, since it cannot by legislation alter the Constitution.
(Emphasis added)
Therefore, to understand the meaning of "income" we must look outside the Code. In
adopting the 1954 Code both the House (in House Report 1337) and the Senate (in Senate
Report 1622, excerpts from which are shown in Schiff's "Excerpts of Record" pages 15 and
16) stated that "income" is used in Section 61 of the 1954 Code in its "constitutional sense."
Schiff, in his proposed jury instructions, requested that the Court instruct the jury that
"income" as used in Section 61 of the Internal Revenue Code is used in its "constitutional
sense" in accordance with the intent of Congress as expressed in those Congressional
reports. However, the Court refused to do so, and instead of charging the jury correctly as to
the meaning of "income" (in conformity with these reports) it incorrectly charged the jury in
violation of these reports and in violation of a number of Supreme Court decisions, as
follows.
In Pollock v Farmers Loan & Trust Co 158 US 601, 637 (1895) the Supreme Court held the
Income Tax Act of 1894 "unconstitutional and void because not apportioned." (See page
637 of that decision, included as page 17 in the accompanying "Excerpts of Record.") In so
doing the Court also said that income taxes that "fall on the income of real estate and
personal property" are "unconstitutional and void" unless apportioned.

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 On page 18 of Defendant's "Excerpts of Record" is the latest excerpt from Shepard's
citations. It shows that the Pollock decision has never been reversed, overturned or repealed,
and thus it still remains the "law of the land." A law that the Court's Jury Instruction 44
blatantly violated.
Therefore, when the income tax of 1913 came before the Supreme Court in Brushaber v
Union Pacific Railroad 240 US 1 (1915), the Supreme Court fashioned a different meaning
for "income"; one that would not conflict with the meaning given it in the Pollock decision,
which the Brushaber Court said it was not "challenging."
The Brushaber Court pointed, somewhat obscurely, to the new meaning for "income" when
it stated (at page 17) that:
The whole purpose of the Amendment was to relieve all income when imposed
from apportionment from a consideration of the source whence the income
was derived. (Emphasis added.)
So a tax on income did not have to be apportioned if the "source" of that income was not
"considered" and thus not taxed. However, this only occurs when an income tax is imposed
on corporate profits since, in that case, the sources that generate the profit are not
"considered" and are not separately taxed.
This of course is the 16th Amendment meaning of "income" as referred to in those
Congressional Reports as well as the meaning of "income" in the "constitutional sense." For
example: in Stratton's Independence Limited v F W Howbert 231 US 399 (1913), the
Supreme Court said that the Corporation Excise Tax of 1909 was "not an income tax, but an
excise upon the conduct of business in a corporate capacity, measuring, however, the
amount of the tax by the income of the corporation." Thus the Supreme Court used the
words "income" and corporate "profit" interchangeably, since the amount of the tax was
actually based on the corporation's "profit", not on its "income".
The decision in Merchant's Loan & Trust v Smietanka, 255 US 509, 518 makes clear that
"income" in all of the Income Tax Acts of Congress meant the same thing as in the
Corporate Excise Tax Act of 1909, since the Court held:
There would seem to be no room to doubt that the word [income] must be
given the same meaning in all of the Income Tax Acts of Congress that was
given to it in the Corporation Tax Act and what that meaning is has now
become definitely settled by decisions of this Court.
That "income" in our revenue laws means the same thing as it did in the Corporation Excise
Tax of 1909 was also held in Southern Pacific v Lowe 247 US 330 (1918); Burnet v Harmel
287 US 103, 108 (1932); Bowers v Kerbaugh-Empire Co 271 US 887 (1926) and Doyle v
Mitchell 247 US 179 (1918).
Extensive excerpts from all these decisions were included in numerous memoranda filed by
Defendant; see Docket Numbers 15, 66, 78 and 107.
Therefore, in charging the jury that such items as compensation for service (ie, wages),
interest, rent and dividends were directly taxable as "income", the Court was instructing the
jury that income from real estate and personal property were taxable as "income" (even if

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 not apportioned) in direct violation of the Pollock decision.
A tax on rent is obviously a tax on income from real estate. A tax on interest is a direct tax
on the money (personal property) that generated the interest. A tax on dividends is a direct
tax on the stock (personal property) that generated the dividends. And a direct tax on
compensation (ie wages) is a direct tax on the labor that generated that compensation [8].

Therefore, Jury Instruction 44 was given in violation of both bedrock Pollock and Brushaber
decisions, all of the Supreme Court decisions cited above, as well as both of the
Congressional Reports referred to earlier. Thus the jury was misled concerning the legal
meaning of "income", a proper understanding of which was crucial to a proper
understanding of the counts pusuant to which the defendant was charged. Since the jury had
no such understanding, its entire verdict based on its false understanding of the legal
meaning of "income" must be vacated.

6. The Court Erred in Not Giving the Bishop Instruction

In United States v Bishop 412 US 346, 361 (1973), the Supreme Court stated:
The requirement of an offense committed wilfully is not met, therefore, if a
taxpayer has relied in good faith on a prior decision of this Court...
However the District Court refused to give such a jury instruction even though the Court
knew, based on the contents of over a dozen pre-trial motions filed by the Defendant, the the
defendant relied on a number of Supreme Court decisions (as reflected in this Supplemental
Appeal Brief) in forming his understanding of the federal income tax.
For the Court not to have given such an instruction based on the Supreme Court holding in
Bishop (because it might help the Defendant being found Not Guilty) was characteristic of
how Defendant's trial was conducted.
In any case, the Court refused to instruct the jury concerning a significant aspect of
"willfullness" which was particularly applicable to the Defendant. This denied Schiff the
due process of law guaranteed to him by our Fifth Amendment, and consequently his
conviction should also be reversed based on the Court's refusal to give this exceedingly
material instruction.
Based on all of the above, this Honorable Appeals Court cannot allow the Defendant's
conviction to stand and said conviction must be reversed as to all counts as a matter of law.
Respectfully submitted by
[Signature]
Irwin Schiff / pro persona 08537-014
Federal Correctional Institution
PO Box 2000 Unit 5752
Fort Dix, NJ 08640

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 Footnotes
1. As of this date, January 9th 2007, I still have not received the trial transcripts. So I can not
cite the transcript page where these statements were made, but I will furnish it to the Court
at a later date Return

2. In the case of Sections 1, 61, 63 and 6012, not only do all these Code Sections not reside
in the same chapter of Title 26, they do not all reside even in the same Subtitle! Return

3. Since there were so many facets of this trial, I doubt if any of the jury understood what a
tax "deficiency" was! Return

4. In Phillip v C.I.R., 1986 TC 433, the court held that dummy returns had no legal
substance and in Viara v C.I.R., 444 F 2d 770, 777, the court stated "Accordingly it has been
held that a return filed unsigned is no return at all; Dixon v C.I.R., 28 TC 338 (1957)."
Return

5. Why would government waste time and energy recording that on 5/20/1985, Schiff owed
exactly nothing in income taxes for that year? Return

6. Actually, this amount represents Schiff's alleged "total tax" for 1979 and not a deficiency.
And the US Tax Court had no authority to redetermine Schiff's "total tax." Return

7. Despite this, the government has seized hundreds of thousands of dollars of Schiff's
property (allegedly Schiff's property) in connection with his allaged tax liabilities for the
years 1979-1985, without ever having sent Schiff a notice and demand for payment as
required by 26 USC 6303. Return

8. In Butcher's Union v Crescent, 111 US 746 (1884) the Supreme Court held that a person's
labor is his/her property. Return

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 Irwin Schiff
#08537-014
FCI Ft Dix
PO Box 2000 Unit
5752
Fort Dix, N.J. 08640

Hello Boys and Girls,

The photo shows the Fort Dix Prisoner of War Camp - but
happily I'm in a part somewhat more comfortable, and
built more recently. But the barbed wire is just as
sharp.
My nearby Supplemental Appeals reveal not only the
blatant injustice in the convictions of Cindy, Larry and
myself but also the fraud and illegality involved in all
such prosecutions. They also provide information that
will help all those being harassed by the IRS as it goes
about (without authority) illegally enforcing the income
tax. Download them by all means, and send copies to
newspapers and radio talk show hosts.
The public should also be made aware that it is the
government's illegal enforcement of the income tax that
has destroyed America's industrial base, making America
now totally dependent on the importation of foreign goods
(on credit) and on the importation of capital, making
America's forthcoming economic collapse all but
inevitable. Unfortunately - thanks to our own government
- we are destined to experience what Chief Justice John
Marshall warned us about: "The power to tax involves the
power to destroy."
I have always believed that Federal Judges misrepresented
the income tax laws because they believed they were
sufficiently complicated (even though they are benign) so
that the public could not figure out what they were

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 doing; and even if they could figure that out, still
could not generate the interest and publicity to expose
them. But I really believe that my two Supplemental
Briefs solve this problem. They are short enough and
interesting enough and incisive enough (and the Court's
actions blatant enough) to convince anyone of the obvious
scam that has been going on. How can the 9th Circuit
overlook the "four statutes working together"
instruction, when it has already ruled that such an
instruction is nonsense? - and the Tally cross
examination?
So please, when you have studied these Appeals and if you
feel their conclusions are justified, write the 9th
Circuit accordingly. Let them know what you think of the
quality of justice provided at our trial and whether you
believe a reversal of our convictions is warranted; see
"Communicating" at www.ca9.uscourts.gov. Keep your
letters short and respectful, and be sure to cite the
case name and Docket Number.
So, here is insight into how tax trials are conducted in
the US of A; the Honorable Kent J Dawson presiding.
Your friend,
Irwin Schiff.

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 Explanation:
The "Supplemental" appeal emphasized the harm
done to Irwin, Cindy and Larry by Dawson's
mendacious instructions to the jury - and was
IRWIN A. SCHIFF, 08537-014 written before Irwin had the trial transcript
PO BOX 2000 UNIT 5752 available (fifteen months after it ended!)
FEDERAL CORRECTIONAL INSTITUTION This "Supplement" to the "Supplemental" appeal
FT. DIX, NEW JERSEY, 08640 was written after the transcript became available
and focusses on the wicked way in which Dawson
bound and gagged him during the course of the
trial.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA Docket No. 06-10199

Plaintiff/Appellee District Court No. 0978-2:

-04-00119 KID
v.

IRWIN A. SCHIFF at al,

Defendant/Appellant
________________________________________________________________________

DEFENDANT'S SUPPLEMENT SUBMISSION

TO HIS SUPPLEMENTAL APPEAL BRIEF
When Defendant Schiff filed his Supplemental Appeal Brief (dated January 12, 2007), he had not as
yet received any portion of his trial transcript. Since filing his Supplemental Appeal Brief Defendant
has received portions of that transcript, excerpts of which are highly material to issues raised in his
Supplemental Brief, but which he could not reference at that time.
A.
On pages 3-6 of his Supplemental Appeal Brief, Schiff pointed out that Judge Dawson's jury
instruction in which he charged the jury that Code sections "1, 61, 63 and 6012 working together
make an individual liable for the income taxes," was contrary to the 9th Circuit's holding in Roat v.
C.I.R., 847 F2d. 1379, 81 in which this Court held, among other things, that, "Tax policy calls for
statutes to be read independently." On page 5042, line 17, Schiff pointed out to the trial court,
"There's no such thing. Sections don't work together. There is no specific section in the Internal
Revenue Code that makes anybody liable." Thus Schiff objected to the court's giving this erroneous
instruction to the jury.
B.

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 On page 10-12 of Schiff's Supplemental Appeal Brief, Schiff pointed out why all of the trial court's
instructions to the jury concerning the legal nature of the IRS and the authority of the IRS agents
were exercised contrary to law. On page 5046, line 14-15 of the trial transcripts, defendant took
exception to the court's claim that the IRS is an "agency of the United States." Schiff further pointed
out to the court that "the IRS has never been created as an agency of the United States Government."
On page 5043 and 5044 of the trial transcript, Defendant explains that the court's claim, that IRS
agents have delegated authority from the Secretary of the Treasury to collect and enforce the income
tax is also a false claim and additionally that the court's claim that "the Internal Revenue Service is
authorized by Congress to enforce and administer the Internal Revenue Code" is dead wrong. Schiff
also stated (page 5042) that "Congress has given no authority to the Internal Revenue, but that All
authority in the Code is given to the Secretary." Apparently, based upon this objection, the Court
modified its instruction and subsequently claimed that the IRS received its authority, not from
Congress, but from a delegation of authority from the Secretary. However, such a claim was still
erroneous, since it was further clarified that while the "Secretary is authorized to delegate that
authority (such a delegation order would have to be) published in the Federal Register before it could
have any force and effect of law." And that any such delegation order "certainly hasn't been
published. So, that jury instruction (on the legal nature and authority of the IRS) is dead wrong as a
matter of law." (P. 5043 L 6-8)
C.
In Segment V of his Supplemental Appeal Brief, Appellant stated that the trial court's charge to the
jury regarding the legal meaning of "income" for tax purposes was contrary to the meaning given to
that term by the bedrock Supreme Court cases and the clear intent of Congress as reflected in House
Report No. 1337 and Senate Report 1622 (83rd Congress, 2d Session) This is shown in the transcript
pages 5041 and 5042. Schiff specifically called the trial court's attention to how its instruction on
"income" was contrary to those Congressional Reports and the Supreme Court decision of Eisner v.
Macomber. Defendant put the trial court on notice that the proper jury instruction on the meaning of
income was that "When used in this trial, the word 'income' is used in the Sixteenth Amendment
(and) constitutional sense, and not in it's ordinary sense," as was specifically held in those
congressional reports. However, instead of giving a jury instruction in conformity with those reports,
the court gave an instruction that violated those reports.
Thus Defendant Schiff took exception to each of the jury instructions he complained about in his
Supplemental Appeal when those erroneous jury instructions were given.
II
Not content with misleading the jury with respect to various aspects of the tax law when he gave the
jury charge, the trial court insisted on further misleading the jury during the Government's case in
chief. On page 3542 of the trial transcript, the court gave an "interim instruction".containing
numerous misstatements of law; of which defendant took vigorous exception prior to the court's
giving the instructions. In giving its interim instruction, the trial court misled the jury by making the
following false claims as part of its interim instruction:
1) "The law makes individuals liable to pay income taxes." But no such law exists. If it did, the court
would have identified "the law" but no such "law" was identified by the court.
2) "Taxable income is defined in section 63." Taxable income is not defined in section 63, for the
simple reason that its "definition" in that statute is made dependant on the definition of "income"
which is not defined in the Code. Appellant has already explained that the Supreme Court in Eisner

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 v. Macomber stated that Congress has no authority to define income. The legal meaning of income
was contained in those Congressional Reports, which the trial court willfully ignored.
In addition, the trial court states (lines 8-9) that "wages and salaries" are "included" in "income" as
that term is used in section 61. This was totally false and a misleading instruction. While "wages and
salary and compensation for personal services" were identified as falling within the meaning of
"income" in section 22 of the 1939 Code, these items were specifically eliminated from section 61 of
the 1954 Code. By specifically eliminating "wages and salary" from the 1954 Code, Congress
exhibited its clear intent that such sources of revenue could not be regarded as falling within the
meaning of taxable "income" as that term is used in section 61. And "wage and salary" cannot be
regarded as falling within the term "compensation for service", since that would mean "compensation
for personal service" - a term used in the 1939 Code, but also eliminated from the 1954 Code.
"Compensation for service" as used in the 1954 Code can only mean compensation for services as
received by a corporation, since such compensation would not be for "personal" service. So any
claim, as made by the court in this case, that "wages and salary" fall within the meaning of taxable
income as used in section 61 is to totally and falsely mislead the jury as to what falls within the
meaning of "income" as referred to in section 61.
3) Next the court states that "under Internal Revenue Code Section 6012 individuals are required to
file an income tax return." This instruction is false. There is no provision in section 6012 that states
that persons are "required" to file tax returns. If such a provision applied to income tax it would be
found in Subtitle A, not in Subtitle F. In addition, section 6012 refers to persons who "shall" file
returns, not that they are "required" to do so. And the use of "shall" (and not the word "required") in
that context is the equivalent of "may." [1] If section 6012 "required" the filing of an income tax
return, it would be so stated in the Disclosure (Privacy) Act Notice in a 1040 booklet. (Page 1 of
Defendant's 1st set of Excerpts of Record), but is not - as explained further on. The error here is
further compounded by the statement that one is "required" to file "without assessment or Notice and
Demand." There is absolutely no statute nor any directive from the Treasury Department that says
any such thing. It is obvious that the court here is simply making up laws that it thinks might be
helpful to the Government.
4) Next the court states that such sections as: Sections 1, 61, 63 and 6012 (as referenced in
paragraphs two and three of page 3542 line 15-16) "working together make an individual liable for
income taxes." Defendant has already explained (page 4 of his Supplemental Appeal Brief) why this
instruction is directly contrary to the holding of the 9th Circuit in Roat v. C.I.R., 847 F2d. 1379,
1381.
Thus each and every "Interim instruction" given by the court was contrary to law and the information
given the public, as contained in the "Disclosure Act Notice" as contained in the 1040 booklet.
Defendant Schiff made the court aware of this before he gave his instruction, as shown in the
transcript on pages 3527, 3528, 3529, 3535, 3536 and 3538. Schiff advised the court (as shown on
pages 3535, 3527 and 3528) that the Privacy Act Notice only directs the public's attention to Code
sections 6001, 6011 and 6012; that "if sections 1, 61, and 63 had anything to do with the payment of
income tax, then it was incumbent on the Government to put it in the Privacy Act Notice." (page
3538, line 19-21). In addition, the Privacy Act Notice says "you must file a return or statement for
any tax you are liable for". It doesn't tell you that "you must file a return for any tax imposed", as in
section 1. (page 3527, line 21) Schiff further points out (page 3538) that while the 1939 Code
included such items as wages and compensation for "personal service." The '54 Code took out wages
and salaries and also took out compensation for personal service and only left in compensation for
service. Schiff stated, "the court is fully aware that in adopting the '54 Code in House Report No.
1337 and Senate Report 1622 the U.S. Congress showing its intent in these committee reports,

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 specifically said that income is used in its constitutional sense." And in instructing the meaning of
income to the jury in his "interim instruction" the court had to know that it was not instructing the
jury in conformity with those Congressional Reports.
Both the Government and the trial court sought to mislead the jury into believing that the mere
imposition of a tax was tantamount to making persons "liable" for the tax. However Schiff explained
how Code Sections 4402(c) and 4401(a);and 5701 and 5703 first imposed the tax, and subsequently
stated who was "liable" and who must "pay" the tax "imposed." (At page 3529). Schiff goes on to
state, "So, the imposition of the tax and the liability for the tax are two different things." On page
3528 Schiff informs the court that, "This is a totally illegal and erroneous jury instruction and I
vigorously object."
III
In addition to misleading the jury with respect to the law (as shown above) the following are some
representative examples of how the court in this prosecution based its rulings on how they might hurt
or help the Government's case.
A. WITH RESPECT TO THE TESTIMONY OF CHRISTY MORGAN
On page 1535 (line 18), Ms. Morgan identifies herself as "The civil penalty coordinator in the
Frivolous Filer Department in the Examination Branch." On page 1536 (line 3) she states, "I assess
the $500 frivolous return penalty while working with counsel regarding arguments (and) asking for
legal discussions." On page 1538, it is obvious that Schiff is having trouble reconciling her authority
to determine that returns are frivolous and imposing penalties with her claim and the court's claim
that she "doesn't claim to be an expert in taxes." (line 10-12) The court states (line 16-17), "She
testified what she did. And if you want to cross-examine her but your objections makes no sense to
me. You don't like what she did." Schiff tries to point out to the court that he had "no objection to
what she did," but wanted her qualified as an expert so he could cross-examine her in the law she
was applying when she determined a return was frivolous.
On cross-examination, Schiff attempts to elicit from her "exactly how the frivolous penalty was
imposed." (page 1622, line 6) According to her (lines 16-23), when the IRS received a frivolous
return, if it (was) something that had not been identified she would "write area counsel, they would
research case law, and come up with a decision. It was then passed through the manager, or it could
be passed through the national office counsel for approval. And, in turn, we get a written decision
back stating, yes... "
On page 1623, lines 6-7, Schiff asks her, "was there any document that said who actually determined
who imposed the penalty itself?" Schiff stated (lines 15-16), "in the documents that you provided us,
there was no document that stated who imposed the frivolous penalty itself; is that correct?" Her
answer was "Area counsel determined it." Schiff then asks her that "no document, you supplied us
with stated who took responsibility for imposing the penalty?" It is clear from Ms. Morgan's
responses that no particular party signed a document or took personal responsibility for imposing the
frivolous penalty. Schiff then asks her if she were familiar with the statute that explained how a
frivolous penalty is supposed to be imposed. The transcript shows some mix-up between Code
section 6801, which establishes the penalty, and section 6751, which explains "how the penalty is
imposed." Seeking to enter Code section 6751, Schiff hands it to Mr. Ignall, one of the U.S.
prosecutors, who offers no objection to its admission. (page 1625 line 23). The court then asks
Schiff, "All right now what is the relevance of this?" Schiff explains that the statute is "directly
related (to) how a (frivolous) penalty gets assessed", which was the very subject of Ms. Morgan's
testimony. The court then asks for the document. The court identifies it as section 6751 of the

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 Internal Revenue Code (page 1626, line 18-19). The statutes provides the following, in pertinent part.
1) In general. No penalty under this title shall be assessed unless the initial determination of such
assessment is personally approved (in writing) by the immediate supervisor of the individual making
such determination or such higher level official as the Secretary may designate.
The statute clearly reveals Ms. Morgan's section did not impose the frivolous penalty on Schiff and
thousands of others according to law. Undoubtedly the court recognized this when it read the statute
(page 1627 line 2-3) causing the court to say, "I've read it, and it doesn't matter." So the court refused
to admit the statute. So, apparently it "doesn't matter" whether or not the IRS imposes penalties
according to the law. According to Judge Dawson the IRS is free to impose penalties anyway it likes,
and it "doesn't matter" what the law says. Obviously the court did not want the statute to be admitted,
since it did not want the jury to find out that the IRS imposes penalties in violation of law. Such a
discovery by the jury might prejudice the government's case.
B. LUDDIE TALLY
On page 2954 (line 4), Mr. Tally is identified as being an IRS Revenue Officer for about 20 years.
On pages 2957 2960 Mr. Tally explains how he uses liens and levies to "take assets from the
taxpayer. It's an involuntary payment." (page 2959 line 20-21) On pages 3001-3004 Tally explains
how in 1995, he "prepared the necessary papers to seize Mr. Schiff's automobile And I went out that
afternoon and seized Mr. Schiff's automobile." On pages 3012, 3-3016, Mr. Tally testifies how he
issued a levy and seized 100% of Schiff's monthly Social Security benefit.
On page 3108 (line 22-24) Schiff asks Tally (laying a foundation) "Did you ever hear of pocket
commissions?" and Tally replies, "Yes, Sir." Continuing, Schiff asks "How many kinds of pocket
commissions, does the IRS issue?" Before Tally can answer, the prosecutor interrupts with an
objection (page 3109, line 1), "I'm going to object -relevance." The court asks Schiff "what is the
relevance of this?" and Schiff states, "I want to ask him what kind of a pocket commission he has. I
am about to prove to the jury that Mr. Tally had no authority to make all those seizures he testified
to, including taking Schiff's automobile and his Social Security benefits, because Mr. Tally will have
to admit to only having a non-enforcement pocket commission," as explained in the IRS document
taken from the IRS Handbook 1.16.4 included as Document No. 2 in Schiff's accompanying Excerpts
of Record. However, both the Government and the court knew where Schiff was going with this (and
how devastating it would be to the Government's case) since Schiff had raised the issue of pocket
commissions in pre-trial motions. Therefore, both the Government and the court knew that Tally had
no legal authority to make the seizures he testified to, both from the fact that he had a
non-enforcement pocket commission, and his job description meant he fell into subsection (a) of
section 7608, meaning that he could only be authorized to enforce such taxes as liquor, tobacco, and
firearms and such other taxes that fell into Subtitle E. [2]
In any case, Judge Dawson sustains the objection on the ground that it is irrelevant as to what kind of
pocket commission Tally has. Presumably Tally would have as much authority to seize property with
a non-enforcement pocket commission as he would have with an enforcement commission.
On pages 3123-3124 (lines 24-1) the court says, "If you want to show that he didn't have authority
then you can call someone." However, when Schiff called John Turner, who had been a revenue
officer for 8 years, and who was prepared to testify that he resigned from the IRS when he
discovered he did not have the legal authority to seize property, and was doing so only on the basis
of fraud and intimidation, the court would only allow him to testify as a character witness. It is clear
from the transcript pages 4594-4596 that Judge Dawson was closely monitoring his testimony to
make sure he stayed within those narrow limits. Therefore Schiff was not allowed to call witnesses to

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 show that Tally did not have any enforcement authority.
On page 3124 Schiff points out to the court (out of the presence of the jury) that the "IRS issues two
kinds of pocket commissions, enforcement and non-enforcement pocket commissions, and (Tally)
has a non-enforcement pocket commission, which means he has no enforcement authority within the
law and you did not allow me to bring this out." In response, Dawson says, "He has authority," and
Defendant replies, "but he has a non-enforcement pocket commission." And the court says, "I don't
care about pocket commissions, the witness has authority. He is an employee of the Internal Revenue
Service. He has authority." So Schiff asks the court, "But why didn't you let me ask him what kind of
a pocket commission (he has)?" And the court replies, "Because it has nothing to do with this." How
can Agent Tally's authority to seize property have "nothing to do" with the type of pocket
commission he has, since the purpose of these commissions is to establish the authority of the IRS
employee to seize property? The fact that Tally might be an IRS employee (actually a Treasury
Department employee) has "nothing to do" with his authority to seize property, as would such
employment of an IRS custodian or file clerk infuse them with authority to seize property though
they too were employees of the IRS. One's authority to seize property would be established by their
pocket commissions, the provisions of Code section 7608, and other factors that Defendant need not
get into here. Suffice it to say, that the court "didn't care about pocket commissions" because if the
court did, and Tally were forced to admit he only had a non-enforcement pocket commission, it
would weaken the government's case. So the court pretended that a document that was highly
relevant to the defense was irrelevant.
C. CLINT LOWDER
Mr. Lowder is identified on pages 3970 and 3971 as an IRS revenue agent with 30 years of
experience. On page 3972 (line 1) he states that he had "specialized training in expert witness and in
summary witness training." On pages 3972 and 3973, the Government says that Mr. Lowder is an
"expert in tax computations." Presumably, therefore, Defendant will not be permitted to examine him
on his alleged knowledge of tax law, which he will soon be testifying about. Therefore, on page 3973
Schiff asks, "I want to know the difference between being an expert on the law and being an expert
in tax computations." Mr. Neiman, one of the prosecutors states, "Mr. Lowder will take general
accounting principles as defined in the law in order to show what Defendant's Schiff's business
income was for the years charged in the indictment." [3] Schiff objects and points out that the use of
the word 'income' is a legal conclusion. "There are a hundred pages in 'Words and Phrases' on the
meaning of 'income' If he wants to testify that I made certain (bank) deposits, that's okay with me.
But whether these deposits constitutes 'income' within the meaning of the law is a legal conclusion
and he doesn't have the background and training to testify as to what constitutes 'income' If he does, I
want to cross-examine him on his understanding of the word 'income.'" The court rules that Schiff's
objection is premature. "You have interrupted (him) before he has testified. you can raise it when it is
timely." (However, as shown further on, when Schiff does timely object, it is immaterial, since no
argument on this issue is permitted.)
On page 3976 (line 9-10), Mr. Lowder states that "in each and every examination (and he testified he
had done between 1,500 -2,000), I would have to determine what constitutes income." Therefore
Schiff now timely objects and states, "He's determining (income) in the ordinary sense he can't use
the word 'income' unless the Government puts on a witness to define the term 'income' (since)
'income' is not defined in the Internal Revenue Code." What Schiff was attempting to say was all Mr.
Lowder actually did was to check deposits Schiff made to his bank accounts. However, whether
these deposits constituted "income" within the meaning of the law was something else again that the
Government never proved, or even attempted to prove. In response, Mr. Neiman, now reminds the
court that it "has already instructed the jury as to what 'income' is." The court then states (page 3977),

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 "The Court has given the jury a definition of 'income' and an interim instruction. That is the law of
this case. your objection is over ruled." Therefore, Mr. Lowder never has to explain where he got his
definition of income from, whether or not he computes income in the ordinary sense, or in the
constitutional sense, or even if he understands the difference.
On page 4142 Mr. Lowder states in cross-examination that he "was attempting to reconstruct your
income for the years 1997 through 2002" - years that I reported I had zero income. (Schiff obviously
had no income in the constitutional sense in any of those years.) Schiff then asks him, "when you did
that, were you doing it legally or illegally?" Mr. Lowder responds by claiming that, "I was doing it
legally." Therefore Schiff asks him (while holding a copy of the IR Code in his hand), "Did you ever
see a law that allowed you to do that?" Mr. Neiman, one of the prosecutors says "object", but states
"I'd like to hear the answer." At which point Schiff addresses Mr. Lowder and states, "Can you take
your Code book (which Schiff attempted to hand him) and show me a law where you are authorized
to do that." The court immediately says, "Mr. Schiff, the Court will instruct on the law move on."
However, the court could never instruct on the law that states that revenue agents such as Mr.
Lowder are authorized to determine someone's total tax. since no such law exists.
However, in this case, Mr. Lowder had already testified that what he was doing, he was doing
"legally." Therefore he had to be familiar with a law that allowed him to calculate defendant's "total
taxes" for the years 1997-2002, which he testified he had done thousands of times. So, why wouldn't
the court allow him to identify that statute? Because, defendant suggests, that no such statute exists.
There is no statute in the Internal Revenue Code that allows the Secretary (let alone the IRS) to
determine a person's "total tax," as Mr. Lowder claimed to have done here. Therefore, the court
prevented Mr. Lowder from having to produce the statute at issue, since his inability to do so would
have substantially undermined the prosecution's case, and bolstered the defense. [4]
CONCLUSION
There would be no point in providing the Court with additional examples showing how the trial court
issued irrational and prejudicial rulings in the interest of promoting the Government's case, while
frustrating Defendant's ability to defend himself. However, Defendant does not believe in beating a
dead horse; the above three examples should be proof enough. Based on the number and gravity of
the trial court's erroneous jury instructions (given twice to the jury over defendants objections) and
the court's irrational and biased rulings as shown above, it is clear that Schiff was convicted illegally,
and is currently "being deprived (of) liberty (and) property, without (having had the) due process of
law" contemplated by the 5th and 6th Amendments to the United States Constitution and as reflected
in all of the slogans and aphorisms that adorn all of America's court houses.
WHEREFORE, if the rule of law, constitutional rights, and the American standard of justice is to
play any role in the consideration of this appeal, this Honorable Court will reverse each and every
count of the Defendant's conviction, including the one year imposed on him by the court for
contempt.

Respectfully submitted

Dated February 22, 2007 _________________________

Irwin A. Schiff, Pro Persona
FOOTNOTES
[1] In Cairi and Fulton R.R. Co. v. Hect, 95 U.S. 170, the Supreme Court held: "As against the
government the word 'shall' when used in statutes is to be construed as 'may'; unless a contrary

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 intention is manifest." See also Fort Howard Paper Co. v. Fox River Heights Dit., 26 NW 2nd 661;
Ballow v. Kemp 92 F2d 556; Gow v. Consolidated Copermines Corp. 165 A1 136, and George
Williams College v. Village of Williams Bay, 7 NW 2nd 6.
[2] The court had already barred Schiff from raising 7608 when he sought to cross-examine Special
Agent Wethje who had to fall into the same subsection, but Schiff still doesn't have the transcript
pages of his testimony.
[3] Defendant suggests that this tortured distinction was contrived to allow Government witnesses in
tax trials to appear to be experts in something without their being able to be cross-examined on the
tax laws and procedures they actually testify about on the grounds they are not "experts". a
distinction the Government assumes the jury will soon forget.
[4] Therefore, Mr. Lowder's testimony, the Government's summation witness, was based upon: (1)
his misunderstanding of the word "income"; and (2) the lack of statutory authority to perform the
function about which he testified.

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http://www.ca9.uscourts.gov/ (2 of 2) [3/29/2007 7:36:50 PM]