US District Court
District of South Carolina
United States of America )
Plaintiff ) No. 8:05cv2734-hmh
Robert Clarkson, ) OPPOSITION TO MOTION FOR
And The Patriot Network ) SUMMARY JUDGEMENT
Defendant Robert Clarkson hereby files his Opposition to the Government's Motion for Summary Judgment dated September 14, 2006:
1. US Court of Appeals for Fourth Circuit held:
“ For example, Clarkson perceived baby-sitting by a grandmother as earned income for a parent given in exchange for garden produce grown by the parent. The IRS does not, of course, recognize the rendering of such services as earned income to the recipient.” Page 6 & 7, attached. Dated June 24, 1982. Unpublished # 78-5213
Here the Fourth Circuit clearly stated that the exchange of services for other services or for money is not considered by the IRS as taxable income. For these words Clarkson served 11 years in jail and house arrest. Therefore, the circuit court must be correct.
2. Now the US Attorney is claiming that wages for services are taxable by the IRS. The Government should make a decision one way or another and stick to it.
3. In instant case, DOJ claims that Clarkson knew that his tax advice is false and fraudulent. However, he was only quoting in various ways the decision of the Fourth Circuit. If Clarkson is wrong now, then the Government owes Clarkson back four years of his life.
I. Donations vs. Dues
4. The Government in its memorandum makes an issue of Clarkson earning millions of dollars from the membership dues in his Patriot Network political association. However, the IRS and DOJ are well aware that Clarkson has not made money in his hobby and in fact lives on his VA check, most of which goes to fight against the Government that created his problems in the first place. Pg 1
For the last thirty years, this non-profit political association has operated on a loss with no pay or profit to defendant or reimbursement for much of his expenses related to this political effort.
5. The Government bases its case on Clarkson's First Amendment association being a business operation with commercial speech. They stake their position on a false claim that Clarkson charges membership dues and that his use of the term donation is fake. However, the facts are well known to the IRS that more than one-half of the people that Clarkson helps do not pay him one single penny. Further, very few of those who do make dues contributions donate the suggestive minimum. Of course, a few well-to-do individuals contribute more.
Over 90% of the Patriotic Americans who participate in the Patriot Network programs do not contribute anything to Defendant. By every definition, the dues are in fact a voluntary donation in every respect. Nobody is required to make any contribution and the suggested amount is a necessary guideline in a political organization.
6. Clarkson does sell his books and videos plus those of others at a substantial mark up. However, due to the cost of travel, advertising etc, the bookstore operation makes no profit. Active political groups almost always sell educational material, trinkets pertaining to their purpose or activities. Clarkson never marketed any produce or service not related to his political mission.
Distributing political materials for cost and accepting donations is hardly a commercial activity. The Government seeks an injunction because Clarkson operates a profit-making tax shelter business. This is patently false and they know it. In similar promoter suits, the other Defendants did operate profitable businesses and thus fell under the commercial expectation to the First Amendment.
The Government wails away about a section on Robert's entitled “members only” which is a mistaken term he never bothered to correct. This section is open to everybody who needs it. Most of the users are non-members. Pg 2
7. Clarkson however manages a political action group, which the Free Speech Guarantee of the Bill of Rights protects. His Constitutional rights should not be abridged on the grounds of commercial activity when none exist. Due to the undisputed facts in this case, the commercial speech expectation to the First Amendment does not exist.
The Government has absolutely no proof in any way that Clarkson has ever made any money in his cause or even tried to in the last twenty years. Since the Government has no facts to support their claim of exception to the First Amendment, then Clarkson can claim protection of the Bill of Rights and this entire case should be dismissed.
8. Beyond any shadow of a doubt the Patriot Network is a political action group, operating for a political purpose: to preserve and protect the blessings of liberty to our posterity and ourselves. This political association is very active in many political campaigns, generally with Libertarian and Constitution parties. Clarkson was the founder of both the Libertarian and the Constitution parties in South Carolina . . . Numerous political candidates have spoken to the Patriot clubs including many congressmen and state legislators such as majority leader Terry Haskins. The Patriot Networks or its affiliated groups appear frequently in the news media champion and champion political causes. Clarkson has no memory of any activity of the Patriot Network that was not 100% political.
II. Compelling State Interest
9. The First Amendment protects unpopular speech. Popular speech needs no Constitutional protections. Clarkson freely admits that his political positions are not popular with the people in power and he hides behind the First Amendment.
The Constitution protects us all. If the IRS can close down this tax reform group, then we begin to slip down the slippery slope to a totalitarian society. Does the harm that Clarkson does to the IRS justify one step toward a police state or closed society? Where is the compelling interest to justify any infringement on the political activities of the Network in a free and open society?
The facts in this case simply do not warrant the drastic measures sought by the Government.
10. The Government justifies wiping out part of a website and political organization on the grounds that Clarkson's activities burden the IRS, which no one can deny. However, well-settled law holds that the taxpayers have the burden to clean up after demonstrations, police rallies, protect political demonstrators, etc. Talking about burdens…what do you think the entire Bill of Rights does?
Tax reformers, reformers of all types, and political activist use a vast, varied number of methods to spread their message (which the courts have long recognized) including some rather unique ones.
The issue in this case is not whether Clarkson's advice on hiding the assets is a burden but whether the amount of the “gravity of harm” defined by IRC 6700 outweighs the curtailment of free speech. The government has simply not listed any particular burden on the mighty IRS, but only made general accusations. If Clarkson is a burden, then the government should be required to prove it or least detail it.
11. The DOJ should and can list the cost to the tax service of countering Defendant informing the little man about his Constitutional, Statutory and Administrative Rights in dealing with the tax people. The Internal Revenue Code is no longer workable. Total compliance would necessitate a police state in our great land of personal liberties. Is the Internal Revenue Code worth the cost?
12. The bullies at the tax service are brutalizing working people. The Sixteenth Amendment was never intended to apply to less than high-income taxpayers who have the resources to protect their interest. Middle income Americans needs somebody to cheaply assist them with audits and collections or the hatred and rancor against the tax collectors will create a political crisis.
The biggest cost to the IRS is that Clarkson relentlessly makes them obey their own rules. According to the US Congress, the supervisors of the IRS have been lax in enforcing the procedural laws. To collect the taxes, the tax agency needs the support of the people. This is lost by the tax collector's “wholesale violation of Constitutional Rights”, as noted by congressional committees.
In the final analyses, Clarkson's efforts to soften the hammer of collection methods actually help the IRS and its despicable tax system. “The gravity of the harm” in our society is the IRC, not Robert Clarkson. The DOJ should attack the problem, not a natural symptom of the problem.
13. The little people can assert their right with PN educational programs. Why did the people ratify the Bill of Rights? Why is half the world trying to crash our borders? Maybe our Founding Fathers were on to something…
III. False Allegations
14. The Governments position is hard to figure out because they use broiler plate provisions in their pleadings which have no connections to Clarkson or to this case. These charges do in fact pertain to actions of other groups, which in some respects resemble the Network.
The original complaint in this case made ridiculous and stupid accusations against Clarkson, thusly failing to inform him of the government's real case. However, the Motion for Summary Judgment and more so the proposed order inform Clarkson somewhat of the government position.
15. Much of the summary judgment motion is based upon the works and activities of RW Moore, a dear friend of Clarkson. However, Mr. Moore is a hardheaded, obstinate individualist, who is beyond the control and influence of anybody including Clarkson.
DOJ's Barbara Cantrell defrauded Mr Moore out of his packet. Her declaration attached to the Government's Motion states that she purchased a number of items from Mr. Moore, including the Untaxed Packet, which was attached to her declaration as Exhibit A. She admitted that this program is not on Clarkson's website. The DOJ has no proof whatsoever linking this packet to Defendant.
Allegations pertaining to this packet should be stricken from the Government's motion.
16. The said Motion on page 2 falsely claims that “Clarkson holds himself out as an expert on the tax laws”. Defendant has never made that statement. However, he correctly stated frequently that he is a foremost expert on IRS procedures, which includes audits, collections, tax court, summons, etc.
The government's motion has so many errors that defendant cannot figure out what they charge him with. Therefore, the entire case should be dismissed so that the DOJ can start over and correctly charge him with what he is actually doing, not the activities of others.
17. The government on page 8 falsely states that Clarkson provides two Executive Service plans. Clearly, these are referral services to another organization with little involvement by defendant.
IV. UnTaxing Portion
18. Apparently, the Government charges Clarkson with too broad areas of activity: (A) Loosely worded as “Untaxing” for the purpose of this opposition motion; (B) Generally referred to as “Asset protection” for the purpose of this argument.
Clarkson for three years has been telling the IRS that he would sign a consent agreement on the Untaxing potion of his activities. The Government has plenty of precedents against this and even more important “a bright line test”. Also Clarkson has very little involvement with this activity anyway. Almost all of members of the Patriot Network had stopped filing years before they met Clarkson.
The IRS has published a list of “frivolous” agreements; which are subject to a penalty. Clarkson has a good idea of what these are; He can easily avoid those actions and save this Bureau of Prisons the cost of feeding him for a year. The parties can also assist the Judge in writing a clear and easy-to-understand injunction.
Further, Congress is about to pass a law requiring the IRS to post a list of arguments subject to penalty, which would be a perfect bright line test eventually . However, the administrative agency would create a list which is overbroad, partially unconstitutional, and imaginative. As usual, lawsuits will spring up and the courts will narrow the list. Clarkson has a good understanding of how the courts will eventually rule and in good faith will obey the future court rulings.
V. Judgment Proofing
19. The Government apparently seeks to enjoin Clarkson from teaching, explaining and assisting victims of the IRS in hiding their assets.
The Government has no precedent against this activity. Without some court cases, nobody really knows what this activity really is and a properly framed injunction may or may not be a problem for this court. This unclear and nebulous charge would lead to extensive discovery and numerous appeals. Then even Clarkson with his familiarity with similar cases would not know what the final order provides.
Everyone would benefit by dismissal of this aspect of the Government motion. Then Clarkson could sign a consent order and this case would be over with.
20. The untaxed portion of the injunction is partially defined and understood. But the asset protection portion needs better definitions so the court and defendant can understand what they want. In other DOJ attacks against defendant, the government did not know what Clarkson was doing and continually changed the charges against him. Clarkson was shooting at a moving target. However here they have knowledge of his activities and should spell out what their seeking to enjoin.
The parties at the direction of the court made good faith efforts to settle this case, but Clarkson could not agree on undefined charges without any precedents. Clarkson does not want another contempt case because he misunderstood the DOJ nebulous and unclear charges.
21. IRC 7600 does not provide for injunction against activities dealing with protecting one assets. That statue requires that activities subject to injunction must be false or fraudulent. The Government has not and cannot prove that Clarkson advice about banking, real estate and investment law is anywhere near false or fraudulent.
Clarkson has assisted a vast number of freedom fighters contesting the IRS harassment and illegal actions in federal court, tax court and other arenas. Many of his court victories are listed on his website including one in this court. Patriots assisted by Clarkson recently won three cases in tax court.
Does the government claim this Advisor has any influence on any Federal Judge at any level? Why are the Judges agreeing with the briefs written by Defendant? The IRS is a bulling agency out of control, which ignores the remedial legislation of the Congress. The tax collectors terrorize the working people who cannot afford to retain counsel. Somebody has to help.
22.The First Amendment protects Clarkson advising tax victims about collection procedure of the IRS as well as collection agencies, nursing homes, etc. The Chairmen of the Federal Reserve (a native South Carolinian) announced last week the pending default of social security. Therefore, Clarkson is now advising aging property owners of the approaching means testing of social security and greed of the nursing homes or “elder law”. Clarkson may be a major problem to the federal welfare agencies, but IRC 7600 does not protect them.
Since no law covers asset protection from hospital and credit cards, Clarkson can continue to advise in that area. An injunction against such advice would be impractical and cause disrespect to the judicial system.
23. Clarkson does have sections in his website dealing with the trust and employee leasing programs of his friends. The trust program does not deal at this time with Untaxing. An injunction against these two programs would be wrong. However, defendant's involvement is too small to contest. He will just obey any order of this court. Hopefully one that is clear and understandable so that he would not be inadvertently a guest of the BOP again.
24. Clarkson does in fact admit to causing trouble to many government agencies including the IRS. However, the Bill of Rights in particular the Fifth Amendment is a major burden on law enforcement and all workings of government. Clarkson admits informing American citizens about their Constitutional, statutory, administrative, and common law rights, etc. He also advocates use of remedial self-help statues or “private attorney general statues” passed by Congress. Why did the elected representative of the people enact these laws?
25. Clarkson has no convictions dealing with employee leasing companies.
26. Clarkson will abide by any order of this court fully and in good faith, but fervently request that the injunction be clear and understandable. Clarkson expect post-injunction discovery, necessary policing by administrative agencies, mandatory publication by him, etc. Defendant has complied in good faith with similar orders by SC Supreme Court.
27. Clarkson does not cause middle income Americans to hate the income tax, the IRS and the welfare state. The IRS does a good job of that by itself. Clarkson strongly denies that his advice on property, banking and collections is incorrect, much less false or fraudulent.
28. The majority of people in Clarkson's meetings are retired, unemployed, disabled, and not subject to the income tax by any definition. They participate in Patriot Network activities because of political beliefs. The Network is a political organization; and the participates have a First Amendment of Rights to participate.
29. The Government basis its case on a set of facts that simply does not exist. For example page 13 of said Motion states that Clarkson information caused members to not file and pay income taxes. The fact is that also all PM members were untaxed before they met Clarkson. The IRS chases them into Clarkson's net.
As to the very few introduced to the tax freedom movement by defendant, this concern would not exist anymore when Clarkson signs the consent order against untaxing. The DOJ asked this court for an injunction against the first amendment on false assumptions.
30. The Government justifies the extreme remedy of injunction on Clarkson's terrible, terrible conduct. However, Clarkson has been doing essentially the same activities for three decades. The DOJ began these promoter lawsuits in 1983, but for two decades considered Clarkson's activities not to fall under the 6700 law. Allowing this conduct to exist for decades negates their claim for harm.
For the last three decades Clarkson's has assisted in the filing thousands of pleadings in Federal, State and Administrative courts. Not once has any court found Clarkson's work or positions to be frivolous or subject to the frivolous penalty.
Almost all of the organizations similar to the Patriot Network are notorious for filing nonsense pleadings, ignoring the rules, forgetting politeness-decency, and wasting judicial time, which is so expensive to the taxpayers. The DOJ does not have one iota of proof to support its allegation that Clarkson assist in filing frivolous pleadings.
31. Clarkson does in fact help thousands of over-burdened taxpayers write letters to the tax collectors to correct their wrongdoing, calculations, procedural errors, etc. The classes and information on letter writing furnished by Clarkson are acceptable to the administrative agencies and courts.
Even though the other Patriot leaders' “customers flood the IRS with frivolous letters”, The Network does not use those method. However Clarkson makes more mistakes in his letters than in his court pleadings and most of network members are also connected to other groups, which neither know nor follow the rules. The DOJ uses for facts in this case the activities of others not connected to Clarkson. All in all, Clarkson teaches taxpayers to obey the rules and regretfully helps the IRS.
32. The IRS-DOJ has complete total and complete scienter of his activities and their false accusations against Clarkson were made knowing and for the purpose of deceiving the court. The Government should produce one frivolous pleading prepared by Clarkson.
33. Admittedly, Defendant operates on the cutting edge of legal theory, operates in undefined areas and makes/causes many mistakes including one terrible mistake for which he is genuinely sorry.
Last all in all, in his own way Clarkson obeys The Rules . Department of Justice has no dirt on Clarkson.
Clarkson requests permission to file Part 2 of his Opposition to Summary Judgment, thirty-days after the government complies with his reasonable, limited discovery request Certificate of Service : I certify that I sent properly on this date a copy of this motion to the opposing party, via email to Attorney Schaeffer and hard copy to Attorney Conits.
Date: 12 October 06 _______________________________
Address: 515 Concord Ave
Anderson SC 29621