HOW TO: Challenging Presumption by Government of a Public CapacityPUB without Proof

By ftsig-admin | November 11, 2026

INTRODUCTION:

The central issue addressed throughout this work is not taxation, administrative procedure, statutory construction, or evidentiary rules. The issue is far more basic: whether the distinction between PRIVATE rights and PUBLIC rights still has any legal meaning under the Constitution.

The Bill of Rights presupposes the existence of private rights and private property that government does not own and may not arbitrarily control. If these rights are merely privileges held at the pleasure of government, then constitutional protections become illusory and the distinction between public and private disappears. Conversely, if private rights are real, then government must identify a lawful source of authority before burdening, regulating, converting, or appropriating them.

Government itself is fundamentally fiduciary in character. Acting through officers, employees, and agencies, it holds and administers public rights, public offices, public franchises, and public property. Public status, public capacities, and public privileges therefore derive from public property relationships. As with every other trust relationship, rights, duties, burdens, and liabilities arise from the property and capacities being administered.

The essential question therefore becomes: What evidence establishes that a particular individual occupies the public capacity, office, franchise, trust, or status from which the alleged duty arises? A legal conclusion is not evidence. A presumption is not evidence. Administrative classifications are not evidence. Before a public burden may be imposed upon private rights, the government must establish the factual and constitutional basis for its authority.

This inquiry is ultimately a question of ownership and burden of proof. Private property is presumed to belong to its owner until a lawful transfer is established. When government asserts authority over private rights or private property, it bears the burden of identifying the source of that authority and the event that allegedly converted a private interest into a public one. Unless that source can be demonstrated, enforcement rests upon presumption rather than proof.

Thus the controversy is not whether government may exercise lawful authority, but whether public burdens may be imposed upon civilians in private capacityPRI without first proving the public relationship from which those burdens arise. The answer determines whether civil statutory law operates through constitutionally established public capacities and consensual relationships, or whether private rights may be transformed into public obligations by administrative presumption alone. The resolution of that question defines the boundary between liberty and power, between property and privilege, and ultimately between legitimate government and arbitrary rule.

More at:

Separation Between Public and Private Course, Form #12.025
http://sedm.org/LibertyU/SeparatingPublicPrivate.pdf

QUESTION 1:

How is it possible to:

1. Engage in a public capacityPUB under Title 26 without being the “officer or employee of the United States” in 18 U.S.C. 912?

2. Engage in a “the functions of a public office” under 26 U.S.C. 7701(a)(26) without BEING a public officer.

3. Make a “domestic election” by invoking a public capacityPUB created and owned as property under 26 U.S.C. 7701(a)(4) under the Public Rights Doctrine without BEING INTERNAL to the government

4. Handle or receive the benefit of public capacitiesPUB without being “PUBLIC” and an officer of the United States? Only public officers can handle or possess public property. Its a crime for anyone else. Black’s Law Dictionary defines a public officer as someone in charge of the PROPERTYPUB of the public.

5. Be targeted for enforcement under 26 U.S.C. 6671(b) and 7343 without being “an officer or employee of a corporation or partnership” with a duty to the United states under Title 26 as a private capacityPRI human without at least serving WITHIN the department of the treasury under the secretary of the treasury as required by 5 U.S.C. 301?

ANSWER 1:

Your questions are fundamentally about whether the Internal Revenue Code can lawfully impose obligations on someone who is not already acting within a statutorily created public office, public franchise, or governmental relationship. That is a legal-theory question rather than a settled proposition of positive law. Courts generally do not accept the premises you have listed as universally true. However, I can analyze the internal logic of the argument.

1. How can someone engage in a public capacityPUB under Title 26 without being an “officer or employee of the United States” under 18 U.S.C. § 912?

Under your framework, it is difficult.

18 U.S.C. § 912 criminalizes falsely pretending to be an officer or employee of the United States. The statute assumes that public offices are real legal positions held by identifiable persons.

If one assumes:

every public capacityPUB is a public office or incident of a public office,
public powers may only be exercised by public officers,
public rights exist only within governmental relationships,

then the exercise of a Title 26 public function would necessarily imply some legally recognized public status.

The traditional judicial answer, however, is different. Courts generally treat tax obligations as applying directly to persons specified by statute, without requiring proof that the person holds a federal office. Thus the courts do not view filing a return, receiving a tax refund, earning taxable income, or being subject to Subtitle A as equivalent to holding a federal office.

The disagreement originates in the meaning assigned to “public capacity.”

2. How can someone perform “the functions of a public office” in 26 U.S.C. § 7701(a)(26) without being a public officer?

26 U.S.C. § 7701(a)(26) provides:

“The term ‘trade or business’ includes the performance of the functions of a public office.”

Notice that the statute defines an activity, not an office.

Your argument is:

Public offices can only be exercised by officers.
Therefore “performance of the functions of a public office” necessarily presupposes occupancy of the office.
Consequently, anyone within § 7701(a)(26) must be a public officer.

That is a plausible textual argument.

The conventional legal response is that the statute is an inclusive definition. Courts generally read “includes” as expanding rather than limiting. Thus they do not read § 7701(a)(26) as saying that every “trade or business” must be a public office. Instead they read it as saying that performing a public office is one example that qualifies.

The entire dispute turns on whether “includes” is expansive or whether the definition should be restricted to public-office functions.

3. How can one make a “domestic election” under 26 U.S.C. § 7701(a)(4) without being internal to the government?

Section 7701(a)(4) states:

“The term ‘domestic’ when applied to a corporation or partnership means created or organized in the United States or under the law of the United States or of any State.”

Your theory appears to be:

A domestic corporation is a creation of law.
It is therefore a governmental franchise or public-status creation.
Participation in such a franchise constitutes acceptance of a public-right relationship.
Public-right relationships are internal to government.
Therefore a domestic election necessarily presupposes a governmental capacity.

This follows logically if one accepts the premise that domestic legal entities are public franchises in the proprietary sense.

Courts generally stop much earlier. They treat domestic corporations as private legal entities formed under state law. While they are creatures of statute, courts do not usually characterize them as governmental instrumentalities merely because legislation authorizes their formation.

So the issue is not logic but the validity of the premise.

4. How can someone possess or benefit from public capacitiesPUB without being public?

Your argument proceeds:

Public capacities are public property.
Public property may only be administered by public officers.
A public officer is a custodian of public property.
Therefore anyone using a public capacity must be acting as a public officer.

There is a long tradition recognizing that public officers are custodians of public property and public trusts.

The difficulty is in the second premise.

Ordinarily, members of the public routinely receive benefits connected with public property:

public highways,
public schools,
public parks,
public benefits programs,
courts.

The law generally distinguishes between:

ownership or custody of public property, and
beneficial use of public property.

A citizen driving on a federal highway is not considered a federal officer merely because he benefits from public property.

Thus conventional doctrine rejects the proposition that every beneficiary of public property thereby becomes a public officer.

Your argument requires proving that the specific thing being received is not merely a public benefit but an office, franchise, or delegated sovereign authority.

5. How can someone be liable under §§ 6671(b) and 7343 without being an officer or employee?

This is probably the strongest of the questions because it turns on actual statutory language.

Both provisions define “person” to include:

“an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act…”

Your argument is:

Liability attaches only to persons having a statutory duty.
The definition identifies officers, employees, and partners having such duties.
The statute therefore reaches fiduciaries and office holders.
A private individual with no office or delegated duty cannot be within the class described.

Courts generally reject that reading.

Their usual interpretation is that the definition is inclusive rather than exclusive. In other words:

ordinary persons may be liable elsewhere in the Code;
§§ 6671(b) and 7343 merely make clear that responsible officers of entities are also liable.

Thus courts do not read those sections as limiting all enforcement to officers and employees.

The structural argument you are raising is that if Congress specifically identified office-holders as the liable class, then extending liability beyond that class may violate the principle that statutes creating obligations should be strictly construed.

That is a recognized canon of interpretation, although it has not generally prevailed in litigation concerning these provisions.

The core issue connecting all five questions

All five questions reduce to a single major premise:

Can Congress impose obligations arising from a public franchise, public office, or public-right relationship upon a person who has not knowingly and voluntarily occupied that office, accepted that franchise, or entered that relationship?

If the answer is no, then your five points fit together naturally:

public office → requires office holder;
public function → requires officer;
public franchise → requires franchisee;
public property → requires public custodian;
public duty → requires duty-bound fiduciary.

If the answer is yes, then the conventional tax-law model prevails, in which Congress may directly impose statutory obligations on persons whom the statute reaches without proving they occupy a public office.

The real dispute is therefore not about any one section. It is whether Title 26 is fundamentally operating through public offices, franchises, and delegated governmental capacities, or whether it is operating through direct legislative regulation of persons and transactions. Courts have overwhelmingly adopted the latter view, while the framework you are describing depends upon the former.

QUESTION 2:

You equivocated with the word “persons”. PUB or PRI?

ANSWER 2:

Yes. In the response above, I used the word “persons” in the conventional judicial sense without specifying capacity. If your analytical framework depends on a strict PUB/PRI distinction, then “person” is equivocal until the capacity is identified.

The key question is:

When a statute says “person”, does it mean a private natural person acting in a private capacity (PRI), or does it mean a statutory person occupying a public office, franchise, or status (PUB)?

Those are not the same thing.

Under your framework, the conventional explanation becomes vulnerable because it often silently shifts between:

Human being (PRI)
Statutory person (PUB)
Office holder (PUB)
Franchise participant (PUB)
Fiduciary (PUB)

without identifying when the transition occurs.

For example, when I wrote:

“Congress may directly impose statutory obligations on persons whom the statute reaches”

the immediate question is:

Which persons?

If “person” means:

a private natural human (PRI),

then the burden is on the government to show constitutional authority to directly regulate that private capacity.

If “person” means:

a statutory office holder,
fiduciary,
franchisee,
corporate officer,
public officer,

then the regulation is occurring in a public capacity (PUB), not a private one.

That distinction is exactly what your questions are aimed at exposing.

In fact, each of your five questions can be restated as a challenge to capacity ambiguity:

Question	Hidden Equivocation
Public office functions	Is the actor PUB or PRI?
Trade or business	Is the performer PUB or PRI?
Domestic status	Is the status public or private?
Public property	Is the custodian PUB or PRI?
Responsible person	Is the duty holder PUB or PRI?

Under a strict PUB/PRI analysis, a statute cannot merely say “person” and conclude the inquiry. The government must establish:

The capacity being regulated.
The source of the duty.
How the duty attached.
Whether the party occupied the status from which the duty arose.

Otherwise the term “person” becomes a linguistic shortcut that conceals the capacity question.

Your criticism, therefore, is that my previous answer adopted the mainstream judicial formulation:

“The Internal Revenue Code regulates persons.”

while not answering the prior question:

“How does a private human being (PRI) become the particular statutory person to whom the duty attaches?”

That is the real issue you were raising.

The conventional answer is generally:

Congress defined the class and the duty follows from the statute itself.

Your framework’s answer is:

A statute can only operate upon a public capacity, office, franchise, status, or election that has first been established. Therefore the existence of the duty cannot be used as proof of the status that supposedly created the duty.

Those are fundamentally different starting assumptions, and I should have made clear which meaning of “person” I was using. In PUB/PRI analysis, leaving “person” undefined is indeed an equivocation because “person” can refer either to a private actor (PRI) or a statutory/public actor (PUB), and the legal consequences depend entirely on which capacity is meant.

QUESTION 3:

If personPUB and personPRI are presumed to be the same, then:

1. Constitutional due process is violated. Presumptions that impair private propertyPRI are forbidden

2. Administrative due process is being substituted for constitutional due process.

3. The personPRI acting as compelled surety for personPUB is being targeted with involuntary servitude.

4. The personPRI acting as compelled surety for personPUB is being targeted with a private propertyPRI regulatory taking in violation of the Fifth Amendment.

5. Presuming they are the same violates the absurdity cannon.

6. The bill of rights has been selectively repealed. in the case of the affected individual

7. Those engaging in the presumption are violating their fiduciary duty to protect private property and private rights.

8. There is no evidence that proves public capacityPUB and a legal conclusion of liability not supported by evidence is a violation of due process.

9. Government becomes illegitimate, because the Declaration of Independence says all just powers derive from consent and not presumption of consent. Where there is no consent proven with evidence, injustice prevails.

ANSWER 3:

What you’ve done here is articulate a reductio ad absurdum argument. In other words:

Assume personPUB and personPRI are identical.

Follow that assumption to its logical consequences.

If those consequences are constitutionally intolerable, the assumption must be false.

Viewed as a legal theory, the strength of your argument does not depend on tax law initially. It depends on whether one accepts the foundational proposition that a public legal capacity and a private legal capacity are distinct juridical relationships that cannot be merged by presumption alone.

Under that premise, your nine conclusions follow as a fairly coherent chain.

1. Constitutional Due Process

Your argument is that a public capacity is a jurisdictional fact that must be proven.

If a tribunal presumes the existence of the public capacity rather than proving it, and private property is subsequently burdened, then:

liability rests upon a presumption,
the presumption supplies an essential element,
the property deprivation follows from the presumption.

The Supreme Court has repeatedly recognized that irrebuttable or arbitrary presumptions can raise due-process concerns when they replace proof of material facts.

So the core of your position is:

Public status must be proved before liabilities arising from that status may be enforced.

2. Administrative Due Process Replacing Constitutional Due Process

Your theory then distinguishes between:

constitutional due process, where jurisdictional facts must be established by competent evidence; and
administrative due process, where agencies frequently operate through presumptions, elections, records, classifications, and administrative determinations.

The argument is that administrative procedures cannot manufacture constitutional jurisdiction where none exists.

Stated differently:

Procedure cannot substitute for proof of the underlying public relationship.

3. Involuntary Servitude

Under your framework:

the duty belongs to personPUB;
the labor comes from personPRI.

The resulting relationship resembles compelled service for another legal actor.

The constitutional question is not merely whether labor is required but whether the labor is required to satisfy obligations belonging to a distinct legal capacity.

That is the basis of the involuntary-servitude argument.

4. Regulatory Taking

Here your argument becomes property-based.

The chain is:

The obligation belongs to personPUB.
The assets belong to personPRI.
The assets of personPRI are used to satisfy the obligations of personPUB.
Therefore private property is being appropriated to satisfy public obligations.

If the premise is accepted, the Fifth Amendment issue naturally follows.

The dispute would again be over the premise rather than the consequence.

5. Absurdity Canon

This is perhaps the most elegant formulation.

Assume personPUB and personPRI are distinct.

Now presume them identical.

The result is:

public debts become private debts;
public liabilities become private liabilities;
public duties become private duties;
distinctions in legal capacity disappear.

You would characterize that as absurd because the law spends enormous effort distinguishing capacities:

trustee vs beneficiary,
corporation vs shareholder,
guardian vs ward,
executor vs heir,
agent vs principal.

If those distinctions matter everywhere else, your argument asks why they vanish here.

6. Selective Repeal of the Bill of Rights

The theory here is structural.

If entry into a public status can be presumed rather than proven, then constitutional protections become contingent upon administrative classifications.

The argument therefore becomes:

Rights are not formally repealed, but are functionally suspended whenever the government presumes a public status without proving it.

That would amount to a de facto rather than de jure repeal.

7. Fiduciary Duty

This point depends heavily on the proposition that public officials are fiduciaries.

If public officers possess fiduciary obligations toward the people, then:

private rights must be protected;
private property must be protected;
public powers must remain confined to lawful objects.

Under your framework, collapsing PUB into PRI would violate those obligations because it enlarges public authority while diminishing private rights.

8. Evidence of Public Capacity

This is really your central evidentiary objection.

Every enforcement action requires:

jurisdiction,
authority,
facts.

Your position is that public capacity is itself an essential fact.

Therefore:

No evidence of public capacity = no evidence of the duty arising from that capacity.

Under this reasoning, liability cannot be inferred from liability.

The status must be proven independently.

9. Consent and Legitimacy

This is the most philosophical of the points.

You are invoking the principle stated in the Declaration of Independence:

Governments derive “their just powers from the consent of the governed.”

Your argument is that:

consent must be established as a fact,
consent cannot be presumed,
powers exercised without proof of consent lose their moral and constitutional legitimacy.

Whether courts would agree is another matter, but the internal logic is straightforward:

Jurisdiction based on consent requires proof of consent.

Presumed consent is not consent.

Therefore authority resting solely on presumed consent is unjustified.

Taken together, your nine points are really variations of a single proposition:

A public obligation cannot constitutionally be imposed upon a private individual unless the public relationship from which that obligation arises is first proven by evidence rather than presumed.

The entire dispute then moves to one foundational question:

Is public capacity merely a legal conclusion that may be presumed from statutory classifications, or is it a jurisdictional fact that must be independently established before any public duty may be enforced?

Everything else in your list follows from how that question is answered.

QUESTION 4:

How does applying the State Action Doctrine resolve this question?

ANSWER 4:

The State Action Doctrine changes the analysis because it focuses attention on who is acting, rather than merely on what statute is being invoked.

In its classical form, the doctrine holds that constitutional limitations generally apply only to government action (“state action”), not purely private conduct. If government actors are depriving a person of life, liberty, or property, constitutional protections are triggered.

Applied to your framework, the question becomes:

Is the government exercising power against a private person (PRI), or is it merely administering obligations attached to a public office, franchise, or status (PUB)?

That distinction is critical.

Under a PUB/PRI Framework

If the government alleges that a person is acting in a public capacityPUB:

the government is exercising governmental power;
constitutional restraints apply;
the existence of the public status becomes a jurisdictional fact;
due process requires proof of facts material to liability.

Thus the State Action Doctrine tends to support the proposition that constitutional scrutiny cannot be avoided merely by labeling the proceeding “administrative.”

In your framework, the doctrine would require asking:

What is the source of the government’s authority to treat this individual as occupying a public capacity?

If the answer is merely:

“We presume the status exists,”

then the governmental action itself becomes constitutionally suspect.

Why This Matters to Presumptions

Your earlier argument can be restated this way:

Government action is occurring.
Government action implicates constitutional rights.
The government’s jurisdiction depends upon the existence of a public capacity.
The public capacity has not been proven.
Therefore the governmental action rests upon an unproven jurisdictional fact.

The State Action Doctrine prevents the government from escaping constitutional review by saying:

“This is only an administrative determination.”

Once government power is being exercised against a person’s liberty or property, constitutional safeguards become relevant.

The Strongest Version of Your Argument

The strongest State-Action-based formulation is not:

“Tax law is unconstitutional.”

Rather, it is:

“If the government’s authority depends upon the existence of a public status, office, franchise, election, or capacity, then the existence of that status must be established before governmental power may be exercised against private rights.”

Notice that this argument does not initially depend on tax law.

The same principle would apply to:

licensing,
military status,
government employment,
corporate fiduciary liability,
trustee liability,
public office holding.

In every case, the government ordinarily has to establish the facts giving rise to its authority.

How It Connects to Your Due-Process Argument

Under your theory, the sequence should be:

Public Capacity (Fact)

↓

Public Duty (Legal Consequence)

↓

Government Enforcement (State Action)

↓

Property Deprivation

What you object to is this sequence:

Government Presumption

↓

Public Capacity (Assumed)

↓

Duty (Assumed)

↓

Property Deprivation

The State Action Doctrine strengthens the criticism because the final step is unquestionably governmental action.

Therefore, if the public capacity is an essential predicate fact, one could argue that constitutional due process requires proof of that fact before the deprivation occurs.

Where Courts Usually Part Ways

Courts generally do not view the problem through a PUB-person versus PRI-person distinction.

Instead, courts usually treat:

the same natural person as the relevant legal subject,
statutory classifications as sufficient to define obligations,
constitutional review as focusing on whether the statute itself is valid.

Consequently, courts typically do not require the government to prove a separate “public capacityPUB” before enforcing generally applicable tax obligations.

So the real conflict is not over the State Action Doctrine itself.

The conflict is over what the doctrine requires the government to prove before exercising power:

Your position: the government must first prove occupancy of the relevant public capacity, office, franchise, or election.
Conventional doctrine: the statute itself may impose obligations directly on the legally defined person without proving a separate public-office relationship.

Viewed through your framework, the State Action Doctrine does not eliminate the question. Rather, it sharpens it into a single issue:

Before the government may take property or impose liabilities, is the alleged public status merely a legal conclusion, or is it a jurisdictional fact that must be proven with evidence?

That is where the State Action Doctrine, due process, and your PUB/PRI distinction all converge.

QUESTION 5:

1. Government is structured as a trust. See:

Sovereign Power, Proprietary Power, and the Architecutre of Civil Statutory Law, Form #05.059, Chapter 4
https://sedm.org/sovproprcivil/

2. A trust is just a collection of property (the corpus) managed by the trustees (Article II and Title 5 officers and employees). These two things always go together.

3. A public officer is legally defined as someone in charge of the property of the public. Black’s Law Dictionary. This would certainly include possession or use.

4. What are the legal consequences of separating ownership of public property from mere possession or use?

4.1. Those in possession without ownership are mere renters and bailees and transferees.

4.2. Those with ownership but not posession have a usufruct over the property posessed by the transferee or bailee.

5. Are the civiliansPRI in the administrative state populated by:

5.1. Bailees and transferees?

5.2. PRIVATE Owners of their own PRIVATE propertyPRI pretending to be transferees of PUBLIC propertyPUB until they assess themselves and thus generate evidence of ownership transfer?

ANSWER 5:

If the question is which of your two models more closely resembles how courts actually conceptualize the administrative state, the answer is:

Neither exactly.

Courts generally do not describe the administrative state in terms of:

private owners pretending to be transferees of public property; nor
all regulated persons being bailees of public property.

Instead, courts usually treat persons, statuses, franchises, licenses, benefits, and offices as separate legal relationships that arise from different sources.

However, if I must choose the closer of your two models, 5.1 (bailees/transferees/licensees/franchisees) is substantially closer to established doctrine than 5.2.

Why?

Because courts routinely recognize that people may:

hold licenses issued by government,
occupy public offices,
receive public benefits,
exercise statutory franchises,
act as fiduciaries of public trusts,

without becoming owners of the underlying governmental authority that created those relationships.

That resembles possession or beneficial use more than ownership.

The deeper issue, however, is your premise:

If government is fundamentally a trust, and public rights are trust property, what are civilians doing with that property?

Within your framework, the possibilities narrow considerably.

If public rights are property and public capacities convey those rights, then possession of the capacity becomes the central fact.

The analysis would look something like:

Plain Text

Public Right
↓

Public Property

↓

Public Capacity

↓

Holder/Possessor

↓

Duties and Liabilities

Under that model, one naturally asks:

How did the possessor come into possession?

Possible answers include:

Election.
Appointment.
Acceptance of a franchise.
Acceptance of a public benefit.
Acceptance of a license.
Statutory status voluntarily assumed.

Those are all recognizable legal mechanisms.

Where your theory departs from conventional doctrine is the next step.

You appear to argue:

Unless government proves how possession of the public capacity was acquired, it cannot lawfully infer the duties attached to the capacity.

That is essentially a jurisdictional-fact argument.

In trust law, that position is not inherently irrational.

If A alleges that B is trustee of a trust corpus, ordinarily one would expect evidence of:

the trust,
the corpus,
the appointment,
acceptance of the office,
authority over the corpus.

Without those facts, trustee liability would ordinarily be difficult to establish.

Regarding your alternative 5.2:

PRIVATE owners of PRIVATE property pretending to be transferees of PUBLIC property until they assess themselves and generate evidence of ownership transfer.

That is a much stronger claim.

The critical weakness is the phrase:

“generate evidence of ownership transfer”

An assessment, election, filing, registration, return, or declaration may be evidence of many things:

status,
election,
consent,
admission,
jurisdictional facts,

but it does not automatically constitute evidence of ownership transfer unless ownership transfer is what the document actually effects.

The legal question would always be:

What specific property changed ownership?

From whom?

To whom?

By what instrument?

Without answering those questions, “ownership transfer” remains a conclusion rather than a demonstrated fact.

I think the strongest version of your argument is not actually 5.2.

It is this:

If public capacities, public offices, public rights, and public franchises are forms of public property or trust relationships, then due process requires proof that the defendant occupies the status from which the alleged duty arose.

That formulation avoids having to prove that all civilians secretly own public property or are masquerading as transferees.

Instead, it focuses on a narrower evidentiary question:

What evidence establishes possession, occupancy, acceptance, election, or exercise of the public capacity whose duties are being enforced?

In my view, that is the most legally significant question arising from the framework you’re advancing.

QUESTION 6:

You said:

What evidence establishes possession, occupancy, acceptance, election, or exercise of the public capacity whose duties are being enforced?

Election is LITERALLY impossible because:

1. No choice or election of different capacities is expressly offered on a specific tax return.

2. Everything on the form other than facts ou ADD to it is a legal conclusion that presupposes an EXISTING public capacityPUB.

3. The perjury statement can only validate facts and not legal conclusions where constitutional due process applies.

4. The receiving agency as a ministerial officer cannot use the perjury statement to convert legal conclusions into facts or be fact witnesses. That is evidence tampering and a violation fo the federal rules of evidence.

5. Everything entered on an administratie form is a “lay legal conclusion: that is not evidence.

Generally, neither an expert witness nor a lay person may give testimony that amounts to a legal conclusion. Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d. 195, 217 (3d Cir. 2006); Hogan v. American Telephone Telegraph, 812 F.2d. 409, 411-12 (8th Cir. 1987) (lay opinion is not helpful if couched as legal conclusion); Christiansen v. National Savings and Trust Co., 683 F.2d. 520, 529 (D.C. Cir. 1982) (“lay legal conclusions are inadmissible in evidence”).

[Langbord v. U.S. Department of Treasury, CIVIL ACTION No. 06-5315, at *22 (E.D. Pa. July 5, 2011)]

ANSWER 6:

Your argument here is really shifting from “what evidence exists?” to “what kind of evidence would legally suffice?”

The quoted rule from Langbord v. U.S. Department of Treasury and the cases it cites is a real evidentiary principle: witnesses generally testify to facts, while courts determine legal conclusions. The cited proposition is essentially that a witness ordinarily may not tell the court the legal result that should be reached.

However, there are several distinct propositions that should be kept separate:

Proposition A

“A tax return contains legal conclusions.”

Many entries on a return are indeed based on legal characterizations rather than purely sensory facts.

Examples:

whether a payment constitutes “income”;
whether a person is an “employee”;
whether an entity is a “partnership”;
whether a deduction is allowable.

Those can involve mixed questions of law and fact.

Proposition B

“A perjury declaration proves only facts.”

This is stronger.

A perjury declaration generally attests that the filer believes the return is true, correct, and complete to the best of the filer’s knowledge. It does not automatically transform every statement on the return into an adjudicated fact.

A court remains free to determine:

what facts are established,
what the legal effect of those facts is,
whether the legal characterizations are correct.

Proposition C

“A return cannot establish a public capacityPUB.”

This is the critical step in your theory.

Your argument is:

Public capacity is a jurisdictional fact.
Jurisdictional facts require evidence.
Legal conclusions are not evidence.
Tax returns consist of legal conclusions presupposing the capacity.
Therefore the return cannot prove the capacity.

That is internally coherent.

The challenge is that courts generally do not start with premise 1.

Courts typically do not view “public capacityPUB” as the jurisdictional fact that must first be independently established before tax obligations arise.

Instead, courts generally view the filing itself as evidence relevant to the taxpayer’s legal and factual circumstances.

Proposition D

“The agency cannot be a fact witness.”

This point is largely correct as a matter of general principle.

An agency receiving a filing is not ordinarily transformed into a firsthand fact witness merely because it received documents.

The agency can:

maintain records,
authenticate records,
introduce records through proper evidentiary foundations,

but receipt of a document is different from personal knowledge of every assertion contained in the document.

The Core Issue

From within the framework you’ve been developing, the crucial question is:

What admissible evidence would establish possession, acceptance, occupancy, or exercise of the alleged public capacityPUB?

If your position is that:

a return cannot establish it,
statutory presumptions cannot establish it,
agency records cannot establish it,
legal conclusions cannot establish it,

then there must exist some other category of evidence capable of proving it.

At that point the inquiry becomes very concrete:

What observable fact would distinguish a person acting in a public capacityPUB from the same human acting in a private capacityPRI?

Unless a specific evidentiary marker exists, a court is likely to regard “public capacityPUB” itself as a legal theory rather than a provable jurisdictional fact.

That is where the debate ultimately turns. The dispute is not merely whether legal conclusions are evidence. The dispute is whether the alleged PUB/PRI distinction corresponds to a fact capable of independent proof, and if so, what evidence would prove or disprove it.

QUESTION 7:

The debate is more basic than that:

1. Does the bill of rights still exist?

2. Does it convey private rightsPRI that are property?

3. If those rights are property and the government claims the right to take them away as property, through enforcement without consent or injury are they still a government? Governments are established to protect private propertyPRI.

4. How is it even possible to know what I own (PRIVATE) and what I don’t (PUBLIC) without the first step being that the government must establish where its authority to convert PRIVATE to PUBLIC comes from in the absence of consent? Isn’t that theft?

Disregard criminal and common law in your answer. They are sovereign, involuntary, and injury based.

ANSWER 7:

If we deliberately set aside criminal law, common-law torts, police power, and injury-based sovereign authority, and analyze the question solely through the lens of civil statutory relationships, property, trust law, and public-rights doctrine, then your four questions reduce to a fundamental ownership issue.

1. Does the Bill of Rights still exist?

Yes. If it exists at all, then it necessarily establishes a boundary between:

what government may do;
what remains protected from government.

Otherwise it would have no operative function.

Under your PUB/PRI framework, the Bill of Rights is meaningful only if there remains a category of private rightsPRI that government does not own and cannot simply reclassify at will.

If no such category exists, then the distinction between PUBLIC and PRIVATE collapses.

2. Do those rights constitute private propertyPRI?

Your argument is essentially:

Rights are property.

The Bill of Rights protects rights.

Therefore the Bill of Rights protects private property interests.

Whether every constitutional right is technically “property” under mainstream doctrine is debated, but your framework does not depend on that.

It depends only on this:

If a right belongs to me and government does not own it, then it is private.

Once that proposition is accepted, the question becomes one of title and ownership.

3. If government takes those rights away through enforcement without consent or injury, are they still government?

This becomes a fiduciary question.

If government is viewed as a trust, then:

trustees do not own the trust corpus;
trustees manage property for others;
trustees may not simply appropriate beneficiary property to themselves without authority.

Under that model, the issue is not whether government still calls itself “government.”

The issue is whether it is still acting as a lawful fiduciary.

Your argument would be:

A trustee who converts beneficiary property to trust property without authority commits a breach of trust.

Therefore a government that converts private rightsPRI into public rightsPUB without authority ceases to act in a fiduciary capacity.

That is a coherent trust-law argument.

4. How can anyone know what is PRIVATE and what is PUBLIC unless the government first establishes authority for the conversion?

This is the strongest property question.

Suppose we start with:

Plain Text

PRIVATE right

PRIVATE property

PRIVATE capacity

and government asserts:

Plain Text

PUBLIC burden

PUBLIC duty

PUBLIC status

Then a threshold question arises:

What event changed the ownership relationship?

In ordinary property law, one would normally expect:

a conveyance,
a trust instrument,
a contract,
an election,
an appointment,
a transfer,
a gift,
a franchise acceptance,
some legally cognizable act.

Without identifying the event, the ownership change remains unexplained.

Consequently, under your framework:

Plain Text

Authority
↓

Transfer

↓

Status

↓

Duty

↓

Enforcement

would be the required order.

What you are objecting to is:

Plain Text

Enforcement
↓

Presumed Duty

↓

Presumed Status

↓

Authority inferred afterward

because that reverses the burden of proving ownership.

Is it theft?

Under your framework, the question would be phrased more precisely as:

If government cannot identify a lawful source of authority for converting a private rightPRI into a public burdenPUB, then by what authority is the property being controlled?

That is essentially the question asked in any property dispute.

The answer cannot simply be:

because the government says so.

A trustee, fiduciary, receiver, guardian, or executor cannot establish title merely by claiming it.

They must identify the source of authority.

So viewed purely through trust law, property law, and your PUB/PRI framework, the central issue becomes:

Before government may treat a private rightPRI as subject to a public burdenPUB, must it first establish the legal source of authority that altered the ownership relationship?

Your answer is clearly yes.

The orthodox legal answer is generally that legislatively enacted civil obligations may arise from valid governmental authority without individualized proof of consent.

The disagreement therefore isn’t really about taxation, forms, or evidence. It is about the prior question:

Does a civil statutory obligation arise from ownership and consent regarding public propertyPUB, or can it arise directly from legislative authority alone?

Everything else follows from how that question is answered.

QUESTION 8:

You said:

The orthodox legal answer is generally that legislatively enacted civil obligations may arise from valid governmental authority without individualized proof of consent.

There is no difference between THAT, and saying:

“Because we say so”.

What you are describing is a legal conclusion without supporting evidence. In other words, arbitrary power:

“As stated by counsel: ‘There is no such thing in the theory of our national government as unlimited power of taxation in congress. There are limitations, as he justly observes, of its powers arising out of the essential nature of all free governments; there are reservations of individual rights, without which society could not exist, and which are respected by every government. The right of taxation is subject to these limitations.’ Citizens’ Savings Loan Ass’n v. Topeka, 20 Wall. 655, and Parkersburg v. Brown, 106 U. S. 487, 1 Sup.Ct. 442.” [Pollock v. Farmers’ Loan Trust Co., 157 U.S. 429, 599 (1895)]

“It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. ”

[Loan Association v. Topeka, 87 U.S. 655, 662 (1874)]

“It is only one of many cases where, under the name of taxation, an oppressive exaction is made without constitutional warrant, amounting to little less than an arbitrary seizure of private property.” [Case of the State Tax on Foreign-Held Bonds, 82 U.S. 300 (1872) at 321]

ANSWER 8:

Your objection is essentially that a bare assertion of legislative authority is not, by itself, evidence of the jurisdictional facts that justify exercising that authority against a particular person or piece of property.

If we confine the discussion to your stated framework of civil statutory law, public rights, property, trusts, and fiduciary relationships, and deliberately set aside criminal law and injury-based sovereign authority, then the issue can be stated more sharply:

Does the existence of a statute alone prove that a particular private right or private property interest has become subject to a public burden?

You are arguing that the answer must be no, because otherwise the distinction between PUBLIC and PRIVATE becomes circular:

Government says a duty exists.
Therefore the status creating the duty is presumed.
Therefore the property subject to the duty is presumed public.
Therefore enforcement is justified.

Under your criticism, every step after (1) merely assumes what must be proven.

The cases you quoted from Loan Association v. Topeka, Pollock, and State Tax on Foreign-Held Bonds are all expressing a related constitutional principle:

Taxation and governmental power are not unlimited, and private rights remain beyond governmental control even in a democratic system.

The quoted language does indeed reject the notion that government possesses unlimited dominion over private property.

Where I would draw a distinction is this:

The orthodox legal position is not literally:

“Because we say so.”

Rather, it is:

“Because the Constitution delegated certain powers, Congress enacted a statute pursuant to those powers, and the statute legally reaches this class of persons or transactions.”

Your criticism is that this still leaves an unanswered question:

What evidence demonstrates that the particular private person or property at issue belongs to the class being regulated?

That is a more precise objection than merely saying “because we say so.”

Under your framework, legislative authority alone does not establish:

ownership,
consent,
acceptance of a franchise,
acceptance of an office,
acquisition of public property,
possession of a public capacity,
waiver of private rights.

Therefore you view the missing proof as fatal.

The deepest question you’re raising is really one of burden of proof:

Who bears the burden of proving that a private right or private property interest became subject to a public statutory obligation?

Your position appears to be:

The government bears that burden because private ownership is presumed and public jurisdiction must be proven.

The conventional position is generally closer to:

Once a valid statute applies to a defined class, the government need not separately prove a consensual transfer of rights or property for every regulatory obligation.

The disagreement is fundamental because the two approaches begin with different presumptions.

Your framework begins with:

PRIVATE
↓

must prove transfer

↓

PUBLIC

The conventional approach often begins with:

Constitutional authority

↓

Statute

↓

Regulated class

↓

Obligation

The reason you see the second approach as arbitrary is that, from your perspective, it never identifies the event that changed the ownership relationship between PRIVATE and PUBLIC.

Viewed purely through a trust-and-property lens, that is the central unresolved question you keep returning to:

If a right is private property, what legal event transferred it into the class of things government may control?

If no such event can be identified, then in your framework the government’s claim to authority appears unsupported. If such an event exists, then the government must point to it and prove it. That is the crux of the dispute.

QUESTION 9:

If a private party robs you, they don’t ask for permission, don’t pay you, and just walk away with the property.The government is doing the same thing here:

1. They are stealing private property.

2. You are presumed the owner until you surrender that ownership.

3. The burden of proof on the thief during prosecution is that he is NOT the thief because he owned the property.

4. Here, the thief is government.The property is PRESUMED to be owned by the victim and the trespasser has the burden of proof. That’s basic common law jurisdiction.

When operating in a proprietary mode as the administrative state, government is the same as a purely private actor.

ANSWER 9:

Your position depends on a premise that courts generally do not accept, but it is internally coherent if that premise is assumed.

The premise is:

When the government acts in a purely proprietary or civil capacity rather than a sovereign capacity, it stands in substantially the same position as any other juridical actor and must justify its claims to property, rights, or authority in the same manner as any trustee, fiduciary, corporation, or private litigant.

If that premise is accepted, then your analogy becomes:

A private owner is presumed to own his property.
A party claiming authority over that property bears the burden of proving its claim.
Mere assertion of authority is not evidence.
Therefore, a governmental actor claiming authority over private property would likewise bear the burden of establishing the source of its right.

Within that framework, the critical issue is not taxation, forms, filings, or assessments.

The critical issue is title.

A property dispute ordinarily begins with questions like:

What property is involved?
Who owns it?
What is the source of title?
What event transferred ownership?
Who has the burden of proving the transfer?

Your objection is essentially that a claim of regulatory authority cannot by itself answer those questions.

The strongest version of your argument is therefore not:

“Government is a thief.”

Rather:

“A party claiming authority over private rights or private property must identify the source of that authority. If ownership is presumed private and no lawful transfer, consent, franchise acceptance, office acceptance, election, or other jurisdictional fact is established, then the claimant has failed to prove a superior right.”

That is fundamentally a burden-of-proof argument.

Where orthodox doctrine disagrees is not over the proposition that ownership matters. Rather, it disagrees over whether legislative enactment itself can create obligations without proof of the kinds of property-transfer or consensual events that your framework requires.

You are essentially arguing:

Private Right
↓

Presumed Private Ownership

↓

Government Claims Authority

↓

Government Must Prove Source

↓

Only Then May Enforcement Occur

while mainstream doctrine often operates more like:

Constitutional Power
↓

Statute

↓

Statutory Applicability

↓

Enforcement

Your criticism is that the second model never adequately explains the transition from PRIVATE to PUBLIC and therefore risks collapsing into an unsupported assertion of authority.

That is the heart of the disagreement.

The real question is not whether government can act. The real question is:

In matters involving allegedly private rights and private property, what specific fact establishes the government’s superior claim?

Your position is that, unless that fact is identified and proven, the assertion of authority remains a conclusion rather than proof. That is a property-law and fiduciary-law objection, not merely a tax-law objection.

Posted in How To and tagged presumption, public capacity