U.S. v. O'Dell

[weishaupt1776]

160 F.2d 304, 47-1 USTC P 9190, 35 A.F.T.R. 989

attached

[Livefire]

Originally Posted by USvO'Dell

The method for accomplishing a levy on a bank account is the issueing of warrants of distraint, the making of the bank a party, and the serving with notice of levy, copy of the warrants of distraint, and notice of lien.

Awesome case!!! prima facie evidence that tax cases are admiralty in nature that proceed under a colorable civil facade! The court is merely citing the special rules of admiralty proceedings under Fed court rules. Here is the rule for an in rem seizure.....

Rule C. - Actions in Rem: Special Provisions

(1) When Available.
An action in rem may be brought:

(a) To enforce any maritime lien;

(b) Whenever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto.

Except as otherwise provided by law a party who may proceed in rem may also, or in the alternative, proceed in personam against any person who may be liable.

Statutory provisions exempting vessels or other property owned or possessed by or operated by or for the United States from arrest or seizure are not affected by this rule. When a statute so provides, an action against the United States or an instrumentality thereof may proceed on in rem principles.

(2) Complaint.
In an action in rem the complaint must:

(a) be verified;

(b) describe with reasonable particularity the property that is the subject of the action;

(c) state that the property is within the district or will be within the district while the action is pending.

(d) in a forfeiture proceeding for violation of a federal statute, state:

(i) the place of seizure and whether it was on land or on navigable waters;

(ii) whether the property is within the district, and if the property is not within the district the statutory basis for the court's exercise of jurisdiction over the property; and

(iii) all allegations required by the statute under which the action is brought.

(3) Judicial Authorization and Process.
(a) Arrest Warrant.

(i) The court must review the complaint and any supporting papers. If the conditions for an in rem action appear to exist, the court must issue an order directing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject of the action.

(ii) If the plaintiff or the plaintiff’s attorney certifies that exigent circumstances make court review impracticable, the clerk must promptly issue a summons and a warrant for the arrest of the vessel or other property that is the subject of the action. The plaintiff has the burden in any postarrest hearing under Rule E(4)(f) to show that exigent circumstances existed.

(A) In other actions, the court must review the complaint and any supporting papers. If the conditions for an in rem action appear to exist, the court must issue an order directing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject of the action.

(B) If the plaintiff or the plaintiff's attorney certifies that exigent circumstances make court review impracticable, the clerk must promptly issue a summons and warrant for arrest of vessel or other property is subject action. The plaintiff has the burden in any post-arrest hearing under Rule E(4)(f) to show that exigent circumstances existed.

(b) Service.

(i) If the property that is the subject of the action is a vessel or tangible property on board a vessel, the warrant and any supplemental process must be delivered to the marshal for service.

(ii) If the property that is the subject of the action is other property, tangible or intangible, the warrant and any supplemental process must be delivered to a person or organization authorized to enforce it, who may be: (A) a marshal; (B) someone under contract with the United States; (C) someone specially appointed by the court for that purpose; or, (D) in an action brought by the United States, any officer or employee of the United States.

[rottweiler]

Thanks Weis,

TITLE 28 > PART VI > CHAPTER 163 >

§ 2463. Property taken under revenue law not repleviable.

Livefire,
If only there were a judiciary the beast would be dead meat.

If the IRS must follow the UCC a UCC-3 will terminate a NFTL, until the IRS files another that is.

"levy" means to impose a tax, similar to a "lis pendens".

"lis pendens" means suit pending.

"lien" means "a charge" or a legal claim on property whether real or personal.

"charge" means a accusation.

[Shoonra]

Before anyone gets too frothy about the decision in United States v. O'Dell (6th Cir 1947) 160 F.2d 304, 47 USTC para 9190, 35 AFTR 989, it is worth keeping in mind that its determination about priority of liens predates, by almost 20 years, the Federal Tax Lien Act of 1966, Public Law 89-719, 80 Stat 1125, Nov. 2, 1966, which amended, among other sections, 26 USC sec. 6323 on the priority of IRS liens.

[rottweiler]

Things can be seized without warrants of distraint due to exigent circumstances but eventually a In rem action is required to enforce the seizure. For instance, a Coast Guard ship can seize a drug smuggler's ship because to go and get a court order before seizure would mean the smuggler would escape. that is a exigent circumstance. A In rem action is still required eventually to enforce the seizure. Otherwise the process is illegal and subject to review. Americans are not put into prison without a trial because the constitution requires one. Same with property, seizures require warrants of distraint eventually. In the case of revenue seizure they are not repleviable. You can not sue to recover the property, the only remedy is judicial review to see if the seizure was constitutional.

You keep conveniently forgetting that the people have unalienable rights like in the Bill of Rights. Nobody can just legally seize property and keep it without a judge getting involved at some point no matter what laws are passed. I know you are not sui juris because of your un-american attorney attitude, but now I realize you are a willful traitor and if I was a judge I would make sure you were hanged.

Originally Posted by Shoonra

Before anyone gets too frothy about the decision in United States v. O'Dell (6th Cir 1947) 160 F.2d 304, 47 USTC para 9190, 35 AFTR 989, it is worth keeping in mind that its determination about priority of liens predates, by almost 20 years, the Federal Tax Lien Act of 1966, Public Law 89-719, 80 Stat 1125, Nov. 2, 1966, which amended, among other sections, 26 USC sec. 6323 on the priority of IRS liens.

[Livefire]

Shoonra,

The whole point of my prior post is that the IRS has to approach the USDC to obtain a warrant of distraint to accompany ANY levy action, otherwise it isnt valid. The "defendant" then has the right to make the plaintiff prove up their claim under Rule E(4)(f). Tax cases are not civil.....they are admiralty in rem actions and the IRS levies are for the most part deficient. This has nothing to do with lien proirities! Rottweiler also made a good point about replevin, cuz you have to sue the bank, employer, etc for damages like was the case in Boulder Dam Credit Union decision

http://www.wealth4freedom.com/truth/levycase.htm

[weishaupt1776]

Live, wasn't that case (Boulder dam) overturned on appeal?

If so, does that nullify every finding in the case or does just the things enunciated in the appelate finding stand while those points NOT addressed still stand?

[Shoonra]

The Boulder Dam decision is one of those make-believe court things, like the Credit River "decision". You'll notice there's no evidence that the Credit Union or the IRS even participated or submitted pleadings. Since the case involved the operation of federal tax laws, a real lawsuit would have been heard in federal, not "township", court. I have not been able to find any mention of it in real court decisions, not even a supposed appeal that overturned it.

Federal law requires the bank or credit union to cooperate, and, at the same time, immunizes them from lawsuit for their cooperation with an IRS levy. 26 USC sec. 6332(e).

Several real court cases along these lines, among the most recent is Celauro v. US, IRS (EDNY, Jan. 28, 2006) 411 F.Supp.2d 257, 97 AFTR2d 761, 2006 US Tax Cases para 50168.

[rottweiler]

You are a incorrigible traitor. Have you no shame?

Prove that all US citizens are employees of the US.
Because.................

THE AUTHORITY FOR THE LEVY
The authority to levy is restricted to and contained within Section 6331(a) of the Internal Revenue Code.
IRC 6331 - Levy and distraint.
(a) Authority of Secretary. If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401(d)) of such officer, employee, or elected official). If the Secretary makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.

Section 6331 is the only authority in the entire IR Code that provides for the levy of wages and salaries etc., and the "limitation" of that authority should be rather obvious since it pertains ONLY to certain officers, employees, and elected officials of the government and of course, their employer, the government.

Originally Posted by Shoonra

The Boulder Dam decision is one of those make-believe court things, like the Credit River "decision". You'll notice there's no evidence that the Credit Union or the IRS even participated or submitted pleadings. Since the case involved the operation of federal tax laws, a real lawsuit would have been heard in federal, not "township", court. I have not been able to find any mention of it in real court decisions, not even a supposed appeal that overturned it.

Federal law requires the bank or credit union to cooperate, and, at the same time, immunizes them from lawsuit for their cooperation with an IRS levy. 26 USC sec. 6332(e).

Several real court cases along these lines, among the most recent is Celauro v. US, IRS (EDNY, Jan. 28, 2006) 411 F.Supp.2d 257, 97 AFTR2d 761, 2006 US Tax Cases para 50168.

[Shoonra]

I've figured out your problem. You can't read. No wonder you have these problems. You can't understand what the laws say.

And I notice you didn't even make it to subsection (e) of this section.