Joseph R. "Joe" Banister

Saturday, July 24, 2004


Freedom Above Fortune News

Attorney Robert E. Barnes, rebarnes@bernhoftlaw.com

Former IRS Special Agent Achieves Partial Victory But Further Appeal Efforts

As announced on Monday June 28th, 2004, the “Treasury” Department issued its
decision regarding my January 23, 2004 appeal of Administrative Law Judge
Moran’s December 24th “initial decision” in my IRS LOCKOUT case (the IRS attempt
to prohibit me from acting as an IRS-approved client representative).  I also
had announced that the “Treasury” appeal decision, spanning over one hundred
pages, could possibly be the longest decision of its kind ever drafted and it
appeared to play as many shell games with the facts and the law as the Internal
Revenue (Tax) Code does.

Now that we have had an opportunity to digest this mammoth “Treasury” answer to
our first appeal opportunity, we have learned that the decision acts largely as
apologia for the actions of Administrative Law Judge William Moran in an attempt
to shore up his recommended disbarment of the "dangerous" Joe Banister, complete
with perversions of logic, prevarication, and near prostitution of the law.
This one of a kind "Treasury" appeal decision is not a work of art but a work of
artifice.  I suggest you get out some note paper and sharpen your pencil because
this is indeed a tangled web to follow.

The reason I put quotes around the term “Treasury” decision above is that
although my appeal request was addressed to John W. Snow, Secretary of the
Treasury as instructed by the applicable regulations (31 C.F.R. section 10.77),
the most prominent of the many shell games played during this process was
deployed.  Namely, Treasury Secretary Snow delegated his decision making duty in
my case to Emily A. Parker, the “Acting Assistant General Counsel of the
Treasury” who also just happened to be the “Acting Chief Counsel for the
Internal Revenue Service”.  Emily Parker then conveniently delegated her
decision-making responsibility to David F.P. O’Connor.  Can you take a guess as
to what Mr. O’Connor’s title is?  It will come as no surprise that David
O’Connor’s title is “Special Counsel to the Senior Counsel, Office of Chief
Counsel, Internal Revenue Service”.

Yes, folks, the case against me is so “strong” that the Secretary of the
Treasury side-stepped deciding it and incestuously handed the decision-making
authority back to the IRS, the very agency that lodged the allegations against
me in the first place!  Try to picture being charged with violating some law and
then finding out that the prosecutor in your trial was sitting on the judge’s
bench!  If the phrase “judge, jury, and executioner” ever applied to a punitive
government action against a citizen, this is it!  Remember the famous words from
the U.S. Supreme Court, “…the power to tax involves the power to destroy”?
Now that I have explained why I put “Treasury” decision in quotes, I will now
refer to the decision as it should be referred to – the “IRS” appeal decision,
since it was an IRS official who made the decision.

Incredibly, even with the Internal Revenue Service’s extraordinary level of
control over the decision-making authority in my case thus far, even to the
level of appointing one of the agency’s own puppets to do the dirty work, the
IRS appeal decision recognized the weakness of half of the allegations against
me and dismissed the entire amended complaint.  You may recall that the amended
complaint alleged that I was subject to disbarment or suspension because I
engaged in disreputable conduct by failing to file an individual Federal income
tax return (Form 1040) for 1999, 2000, 2001, and 2002, as allegedly required by
Title 26 of the U.S. Code, section 1, 6011(a), 6012(a) et seq., 6013, and/or
6072(a).  Pertinent to the failure to file allegations, the IRS appeal decision
stated, among other things, that “The record in these proceedings contains no
evidence that supports a finding that Respondent had a sufficient amount of
gross income for any of the four years in issue to require him to file a federal
income tax return for any of the four years.” [page 62]  The IRS appeal decision
also stated “However, the record of the proceedings contains no evidence
indicating why Respondent failed to file individual tax returns for these
years.” [page 63]

In a telling move perhaps indicating that IRS officials recognized they had
bitten off a little more than they wanted to chew in litigating tax return
filing requirements, the IRS appeal decision indicated that, although the normal
process would have been to remand (send back) the matter of my duty to file an
individual income tax return back to Judge Moran for further development, it was
conveniently decided that the matter of my duty to file an individual income tax
return would not be returned to Judge Moran for further development and that,
for all intents and purposes, the matter would not be further pursued along the
channels previously traveled. [page 61]

The IRS appeal decision contains no findings of fact, as has been typical of
IRS-authored submissions in this case to date.  Instead, the order changes the
facts around as the IRS appeal decision narrative progresses.  Indeed, the
appeal decision often contradicts itself on what the facts actually are.  At
times, the decision asserts that I admitted everything in order to justify IRS
assertions that there was no need for a hearing or discovery or further due
process of law procedures.  At other times, the decision contradicts itself by
asserting that I denied everything or refused to provide evidence.
Nevertheless, fearing reversal, the IRS appeal decision made extraordinary
assertions and admissions.  The agency asserts it has the authority to prohibit
any client from choosing a duly authorized, state-licensed accountant or
attorney as their representative simply because the client's opinions or beliefs
are not the same as the IRS.  They claim my client's beliefs were so dangerous
that I must be disbarred for simply mentioning those beliefs, describing those
beliefs, or attempting to champion those beliefs to the best of my ability.
Professionals Beware!  Aggressive defense of your client or inquiries into IRS
conduct could lead to being labeled a heretic.  Once so labeled, beware.  The
IRS has brought back burning at the stake and it has a full box of matches at
the ready.

The IRS appeal decision asserts that no citizen enjoys the right to due process
of law in a disbarment proceeding – the IRS can do as it pleases without
affording the accused person any discovery, any right to confrontation of
witnesses, any right to present evidence in their defense, any right to protect
against previewing one's defense against the criminal prosecution arm of the
state, any right to a public hearing, any right to an impartial judge, and any
right to an independent appellate officer.  Give the Politboro the power and
secrecy of the Star Chamber and imagine the consequences.  Stalin would be

Finally, it is clear from the message conveyed in the IRS appeal decision that
the agency’s actions against me have nothing to do with protecting citizens from
allegedly disreputable tax advisors but, rather, with protecting the IRS from an
informed, inquiring, fearless citizenry.  The great "public interest" the IRS
seeks is the agency’s ability to collect as much money from as many people as
possible with little to no resistance or scrutiny.  What the IRS seeks looks
much more like larceny than tax collection.

“Dangerous” tax advisors like former IRS Criminal Investigation Division Special
Agent Banister must be discredited and silenced or, heaven help us, he might
help to awaken the masses to the truth about how his former employer cheats and
beats them.  The IRS has underestimated the ability of American to recognize
deceit.  Giving them cake may not be enough to save the queen's head.
I invite you to read the IRS appeal decision and arrive at your own conclusions.
With your continuing assistance, I intend to appeal this sham IRS appeal
decision to federal court and further expose just how impossible it is for the
IRS to win without resorting to deceitful and even illegal methods.  You have
helped me achieve victory in having the amended complaint charges dismissed (as
described above).  Now it’s time to defeat the remaining allegations.
Contributions of any size are welcome and sincerely appreciated and can be sent
to Joseph R. Banister, c/o Freedom Above Fortune, P.O. Box 90239, San Jose,
California 95109-4239 so that I can continue this effort.  Please pass this
information on to as many of your contacts and media outlets as possible.  More
information about contributions and developments in this IRS case are available
at www.freedomabovefortune.com by clicking on “IRS LOCKOUT UPDATE” in the center
of the home page screen.

My sincere thanks to all who have offered prayers for my success and who have
contributed financially to this effort thus far, many of whom have even made
multiple donations.  When one considers the power of our adversary and the size
of its bag of dirty tricks, we are making extraordinary progress.

Kind Regards,

Joseph R. (Joe) Banister, C.P.A.
Former IRS Criminal Investigation Division Special Agent

-For those who have received this message as a forward from someone else, you
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-For those who are unfamiliar with what has transpired to date in this case,
please visit www.freedomabovefortune.com and click on "IRS LOCKOUT UPDATE" or
visit www.joebanister.blogspot.com .  You can also find archives of informative
radio shows at www.hearliberty.com .

-My sincere thanks to those who have prayed for the success of our efforts and
contributed to my defense fund. Your continued financial support is enabling me
to illustrate, in detail and in a very public manner, that the IRS does not
prevail against citizens because the agency adheres to the rule of law, but that
the IRS prevails against citizens because the agency ignores the law, twists the
meaning of the law, and overwhelms the citizen with economic and legal burdens.
In a school yard, such tactics are called "BULLYING".  In a government setting,
such tactics are called “TYRANNY”.  This effort is the equivalent of ganging up
on the bully and sending him to reform school where he belongs.