Anatomy of a Frivolous Argument

While I’ve spoken about this many times, it keeps coming up so I figured I would do a formal analysis.  I’m well-aware this will have no impact on those who use this tactic to avoid discussion, such as lawyers and bureaucrats; this is for those who may be victims of this pernicious method of shouting down a valid argument.  Ironically, as will be shown, it’s those screeching “frivolous” that are usually raising a truly frivolous argument.  Yelling frivolous is a distraction technique, don’t be fooled by it.

Anyone who has ever challenged the legitimacy of government and the application of their sacred writ, called “laws,” will be familiar with this tactic.  When the accuser admittedly has no evidence, they just start shouting “frivolous argument” as if that magically creates facts to support their claim.

What is a frivolous argument?  There are usually two constants, it’s not just an argument lacking in merit or arbitrarily denied by a traffic court judge: “An appeal [argument] is not frivolous just because it has no merit” Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc., 164 Cal. App. 4th 1108, it must also be brought in bad faith:

frivolous.  So clearly and palpably bad and insufficient as to require no argument or illustration to show the character as indicative of bad faith upon a bare inspection…Strong v Sproul, 53 NY 497, 499.”  Ballentine’s Law Dictionary, 3rd Ed., page 503.

Black’s Law Dictionary adds to this (also quoting Strong v Sproul):

“…where it does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent…”  4th Ed, page 796.

A frivolous argument has three elements:

  1. lacks merit;
  2.  doesn’t controvert the material points; and
  3.  is brought in bad faith.

Now let’s look at an argument I wrote that’s been labeled “frivolous” by an administrative law judge in California and see if it meets this criteria.

“…the legal claims made against me have no factual support, the FTB knows this, and is proceeding against me anyway.”  The legal claim referenced is the claim the laws apply because the target of the assessment is physically in California or has a California source of money.  The FTB argues their laws created an obligation, it’s a foundational claim.

We know this because several agents told us, this includes counsel for the FTB.  When asked for the facts they relied on, they admittedly had nothing, counsel admitted this was an assumption (video below).  Those are the facts my argument is based on, the argument follows directly from the facts.

1. Does the claim have merit?  Yes; the FTB and IRS operate under the same presumption, they admit it; they claim their laws apply, gives them jurisdiction and creates obligations.

My argument is based on their admissions they don’t have evidence and don’t need evidence to support their claim.  So with the FTB claim, where they admit they have no evidence and the foundation of their assessment is an assumption, there is solid factual support.  Therefore, the argument is valid, it has merit because the facts support it.

The FTB and IRS are required to have evidence to support their assessments; lacking a foundational basis is referred to as a “naked assessment” to wit:

The determination of tax due then may be one “without rational foundation and excessive,” and not properly subject to the usual rule with respect to the burden of proof in tax cases. Helvering v. Taylor, 293 US 507.” United States v. Janis, 428 U.S. 433.

The challenge is based on this principle, while my challenge is not spelled out in this or other cases I’m aware of, the legal principle is what’s relevant. The FTB’s assessment is “without rational foundation” by their own admissions.

The argument has merit because it is based on a sound legal principle, supported by the agents’ own admissions.

2.  Does it “controvert the material points” made by the FTB or IRS?  Yes; by their own admission they operate under the presumption the laws apply because you’re physically in California or have a California source of money; and by their own admission they have no evidence, it’s an assumption.  It’s logical and consistent with the facts.

3.  Is it brought in bad faith?  No; it’s based on facts, and a sound legal principle that “controverts the material points” raised by the FTB or IRS.  It’s a logically, legally, and factually consistent argument.

None of the three elements of a “frivolous argument” are present proving the argument is not frivolous; it may be wrong, but it’s not frivolous.  It’s possible the facts as alleged are not true, but that is what a hearing is for, to determine if the alleged facts are true.  In the above video you can hear the agent admit the assessment’s foundation, the applicability of the laws, is an assumption.  An assumption is not a “rational foundation.”

If it’s obvious it’s not a frivolous argument, then why do tax agents and their lawyers (with and without black robes) insist it is and threaten thousands in sanctions?   Because they have a vested interest in the system taking property by force (taxation).  They are the ones raising an argument that has no rational foundation and is brought in bad faith.  I’ve had tax agents claim they don’t need evidence.  That’s frivolous, not pointing out their claim lacks factual support.

What they are really saying is just challenging their foundational claim is somehow a frivolous argument or calling out their frivolous argument is itself frivolous.  That is proof of bad faith.

What they do is strawman the actual position claiming:

“Appellant’s inquiry is entirely nonsensical, and while we are unsure of the exact import of this statement, it appears to be based on the meritless contention that California does not have jurisdiction to impose a personal income tax on appellant.”

No, the contention is: the FTB admitted their foundational claim is the constitution applies because there was California source of money.  When asked for evidence, they admittedly had none and agreed it was an assumption.  We have never made the above claim, this is done to justify ignoring the actual issue. They know what the actual issue is because the “entirely nonsensical” argument is cited just before the above quote:

“Moreover, in her briefs, appellant states that she had previously contacted FTB staff and [FTB counsel] regarding the proposed assessments at issue, and that these individuals failed to provide evidence that the “constitution” applied to her.”

First, the claim is not “entirely nonsensical” it’s based on the FTB’s own admissions and used as an insult, they also use “legalistic gibberish.”  What this administrative law judge really thinks is frivolous, is challenging the FTB’s claim the laws apply to appellant.  Questioning the FTB’s legal claim is the frivolous argument to him.  This cow is so sacred to this bureaucrat he’s threatening a five-thousand dollar sanction for just questioning it and pointing out it’s admittedly an assumption.  Like the pope admitting he just assumes the gods are real and anyone quoting him is raising a frivolous argument.  By the way, this is the same bureaucrat allowing the FTB to lie with impunity in their pleadings.  No bias there I guess.

Some claim the courts have already ruled the argument frivolous for decades as if that changes anything, it doesn’t.  Because just as this ALJ is wrong, so are the courts for the reasons above.

It must also be noted they are not addressing this actual argument in those cases, just like the ALJ does here.  If you look at the cases, the frivolous arguments are all arguments of legal interpretation, not issues of fact.  This ALJ cites Appeals of Dauberger (82- SBE-082) 1982, as support; the type of arguments included are: wages not income without meaning of statute, not a taxpayer within meaning of statute, federal reserve notes are not legal tender, and the Fifth Amendment prohibits the requirement to file a tax return.  Not a single issue of fact cited as a frivolous argument.

If it’s truly frivolous to challenge this legal claim, then that’s proof the system is rigged.  Irrefutable presumptions are unfair and violate due process because they cannot be challenged, there is no defense, even against an assumption, Vlandis v. Kline, 412 US 441. Yes, this is about legislative presumptions, but the principle of fairness is what is relevant because due process requires notice and opportunity to defend at a meaningful hearing, Goldberg v Kelly, 397 US 254 (1970).

It’s not a so-called “frivolous argument” to point out someone’s foundational claim is admittedly an assumption, it’s a statement of fact.

So when they start chanting frivolous, call them on it, ask them what makes an argument frivolous and not just wrong.  Ask them to point out what part of the argument is false; because the underlying facts are not and since the conclusion is drawn directly from the facts, the conclusion is accurate.

The argument the FTB or IRS has failed to support their claim the constitution applies, has merit because 1) it is based on their own admissions, 2) it controverts material points because they admit to not having evidence, and 3) because it’s based on a sound legal principle and the FTB’s own admissions, there is no bad faith.

Regardless of the chants from lawyers and bureaucrats, the argument is not frivolous.

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War in All But Name as US State Department Offers Bribes to Pirates

If at first you don’t succeed, spread some money around. The Financial Times reports that the US State Department is offering cash bribes to captains of Iranian ships if they sail those ships into ports where the US government can seize them.

The offers are funded from a “Rewards for Justice” program authorizing payouts of up to $15 million for “counter-terrorism” purposes. It’s  not about counter-terrorism, though. It’s about doubling down on US President Donald Trump’s decision to violate the Joint Comprehensive Plan of Action, usually called the “Iran Nuclear Deal.”

The other parties to the deal —  especially France, the UK, and Germany — don’t want to let the deal go, but also don’t want to enrage Trump by violating the unilateral sanctions he’s imposed on Iran. The Iranians, on the other hand, have made it clear that unless those other countries find ways to deliver meaningful sanctions relief, they’re abandoning the deal too. They’ve started taking concrete steps in that direction.

On July 4 — Independence Day in the United States — members of the United Kingdom’s Royal Marines boarded an Iranian oil tanker, the Grace 1, off the coast of Gibraltar. They seized ship, crew, and cargo in an act of open piracy.

The pretext for the seizure was that selling oil to Syria violates European Union sanctions. But neither Iran nor Syria are EU member states, and the tanker was taken in international “transit passage” waters. That’s like giving a speeding ticket to a driver in Hungary for violating  Kazakhstan’s speed limits.

Spain’s foreign minister, Josep Borrell, plausibly asserted that the seizure was requested by the US government. The ship was released after Iran agreed that the oil would not go to Syria (its whereabouts and destination remain unknown as of this writing).

In the meantime, a US court had issued a seizure warrant — for an Iranian vessel, carrying Iranian oil, to a non-US destination, clearly outside any reasonable definition of US jurisdiction. And the Iranians had hijacked a British-flagged tanker in the Strait of Hormuz in reprisal for the taking of Grace 1.

So now the US State Department is reduced to simple bribery in its attempts to clean up after Trump’s 2016 campaign promise to get the US out of the “nuclear deal.”

Under the deal, the Iranians went beyond their obligations under the Non-Proliferation Treaty to “end” a nuclear weapons program which the US intelligence community didn’t even believe existed. All they got out of it was some relief from sanctions that should never have been imposed, and the return of some money stolen by the US government decades ago. All the US got out of it was an empty propaganda victory.

But electoral politics required Trump to throw even that tiny trophy away. He had to either promise foreign policy belligerence SOMEWHERE or risk establishment mockery as a peacenik. Enter the Israeli lobby and Sheldon Adelson’s millions. Iran drew the short straw.

So did we. This is war in all but name and only likely to escalate as Election 2020 draws nigh.

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Salt Lake City Corporation vs. Skyler J. Collins

Back in April of this year, SLC Corp. made the allegation against me that I have violated their code, specifically the bit about prohibiting short term rentals (Airbnb, HomeAway) in my neck of the woods. Since then, I have defended myself on the grounds that they lack evidence that their code applies to me, giving them jurisdiction. I’ve questioned their witness and her supervisor both in writing and on the telephone. Here are those recordings:

Witness (6m)

Supervisor (16m)

Likewise an allegation about where I parked my car while retrieving food for delivery.

They maintain both frivolous allegations, and as I am committed to defending myself and challenging their lack of evidence, both have court dates (October and November). I’ve submitted dismissal motions to the judge and await his or her probable denials. We’ll see. Fun times.

(If you’re curious, here’s the PDF of the motion for the short term rental case.)

I’ll be sure to give a full account of both adventures in legal-land as soon as they are concluded.

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Capital Punishment Isn’t Unconstitutional; We Should End it Anyway

On April 1, The Supreme Court of the United States ruled against death row inmate Russell Bucklew’s appeal of his execution method. Nixing his claim that a rare medical condition would make the execution unconstitutionally “cruel and unusual” by virtue of being excruciatingly painful the Court (in an opinion written by Associate Justice Neil Gorsuch) held that the Eighth Amendment “does not guarantee a prisoner a painless death.”

SCOTUS has been the most prominent venue for opposition to the death penalty, but also the least effectual. Intermittent victories on procedural details produce false hopes that the Court will eventually find the death penalty as such an unconstitutionally cruel and unusual punishment. Then events like the retirement of Associate Justice Anthony “Swing Vote” Kennedy dash, or at least delay, those hopes.

The constitutionality of capital punishment has never really been in question. While some of the Constitution’s framers disliked the practice (“I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it” wrote James Madison, one of those framers and later President of the United States), it was common practice at the time of the Constitution’s ratification and has never in the round (as opposed to in particular details) been successfully challenged on constitutional grounds.

But it’s still wrong, and it still needs to go.

The claim of inherent jurisdiction over life and death — the claim of a “legitimate” power to kill disarmed prisoners, in cold blood and with impunity (as opposed to the currently violent, in defense of self or others, subject to requirement to justify the deed) — is the very definition of totalitarianism.  You can have limited government or you can have capital punishment. You can’t have both.

Over the last half-century, opponents of the death penalty in America have energetically chipped away at both its popularity and its political legitimacy.

Exonerations of death row inmates, and execution fiascoes resulting from Mengele-like experimentation with methods, have probably pushed us past the point of no return as state governments reconsider (and in some cases declare moratoriums on) capital punishment.

In 2016, two American political parties — first the Libertarian Party, then a few weeks later the Democratic Party —  enshrined opposition to capital punishment in their platforms.

In an era of ever-growing government power, this is one issue we seem to be moving in the opposite direction on. We should move faster.

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Pardoning Assange Would be the First Step Back Toward Rule of Law

On April 11, the ongoing saga of journalist and transparency activist Julian Assange took a dangerous turn.  Ecuador’s president, Lenin Moreno, revoked his asylum in that country’s London embassy. British police immediately arrested him — supposedly pursuant to his “crime” of jumping bail on an invalid arrest warrant in an investigation since dropped without charges but, as they admitted shortly thereafter,  actually with the intent of turning him over to US prosecutors on bogus “hacking” allegations.

The US political class has been after Assange for nearly a decade.

In 2010 WikiLeaks, the journalism/transparency service he founded, released information revealing US war crimes in Iraq and Afghanistan, as well as State Department cables exposing — among other things — Hillary Clinton’s attempts to have American diplomats plant bugs in the offices of their UN counterparts (Clinton, at one point, tried to raise the possibility of having him murdered for embarrassing her so).

In 2016, WikiLeaks released Democratic National Committee emails — provided by an as yet unidentified whistleblower — exposing the DNC’s attempts to rig the Democratic presidential primaries in Clinton’s favor.

At no point has Assange been credibly accused of a crime. He’s a journalist. People provide him with information. He publishes that information. That’s an activity clearly and unambiguously protected by the First Amendment.

Even if Assange was a US citizen, and even if his activities had taken place in territory under US jurisdiction, there’s simply no criminal case to be made against him.

So they’re manufacturing one out of whole cloth, accusing him of “hacking” by asserting that he assisted Chelsea Manning with the technical process of getting the 2010 information to WikiLeaks.

But once again: Assange is not a US citizen, nor at the time of his alleged actions was he anywhere that would have placed him under the jurisdiction of the United States.

Even if he did what he’s accused of doing, the current state of affairs is the equivalent of the city government of Chicago asking Norway to extradite a French citizen on charges of not cutting the grass at his villa in Italy to the specifications of Chicago’s ordinance on the subject.

There are certainly criminal charges worth pursuing here.

The US Department of Justice should appoint a special counsel to probe the Assange affair with an eye toward firing, seeking the disbarment of, and prosecuting (for violations of US Code Title 18, Sections 241, Conspiracy Against Rights, and 242, Violation of Rights Under Color of Law) the DoJ bureaucrats who hatched this malicious prosecution.

The first step in the process, though, is for US president Donald Trump to pardon Julian Assange for all alleged violations of US law on or prior to April 11, 2019.

Assange is a hero. Time to stop treating him like a criminal.

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Mandatory National Service: “Strengthening American Democracy” by Ignoring Americans’ Rights

On January 23,  the US National Commission on Military, National, and Public Service released its “interim report”  following up with hearings for public comment in February.

The Commission’s motto, or at least the sentiment expressed in large font at the top of its web site, is “Strengthening American Democracy Through Service.” But the report itself bespeaks a working definition of “American democracy” completely at odds with both long-held American standards of freedom and basic rule of law.

The commission reports that it is “considering ways to implement universal service, such as …. Establish[ing] a norm for every American to devote at least a full year to either military, national, or public service; and Requir[ing] all Americans to serve, with a choice in how to satisfy the requirement.”

As a matter of law, that last suggestion was — or at least SHOULD have been — settled in 1865 with the ratification of the 13th Amendment to the US Constitution: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

As a matter of the values for which Americans rose up and fought their revolution, they are clearly laid out in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness …”

Put differently — and this is a universal, not merely American, moral claim — your life belongs to you, not to the state.

The state has no legitimate power to take your life, or any portion of it, from you, nor any legitimate power to force you to serve its goals rather than seeking after your own happiness.

“Mandatory national service” is slavery, full stop. It’s a moral abomination with no conceivable justification in anything resembling a free society, and under the US Constitution in particular it is clearly and unambiguously illegal.

And yes, that includes the military draft, contrary to the sophistry of the US Supreme Court’s Chief Justice Edward Douglass White, Jr. in 1918’s Arver v. US ruling upholding that institution in World War One.

If anything, a military draft is even more repugnant than non-military “mandatory national service” insofar as it goes beyond deprivation of liberty and pursuit of happiness and, as a matter of policy, places the draftee’s very life in danger.

The full brief of any legitimate National Commission on Military, National, and Public Service, properly understood as a matter of both morality and law, would be to  recommend that Congress abolish the Selective Service System and its mandatory draft registration scheme.

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