An injunction will require per Shapario that the government produce at a minimum an affidavit with basic facts [see end of post for quote] and then I must demonstrate irreparable injury and that the government will not prevail..

This is a motion to dismiss by Amy Jelinek, a revenue officer with a memorandum and 28 U.S.C. § 1746 type of penalties of perjury without a notary public. It technically does not met the requirements of 1746, but it will work as "evidence"

There is the issue that the government in DC has entered the case for the interests of the US and for Amy Jelinek. There is a problem here in that until Amy is within her authority, the US has no business in this case. That will be researched and briefed. I also do not know if an US tax attorney can represent two different interests(clients) - logic tells me no way - conflict of interest.

The delegation order (DO 4) is a nice document, but there must be dots connected from the Constitution of the United States Article II to that document. Then Miss Amy must have the delegation herself. The production of the Constitution of the United States poses the same problem. We have a definite starting point, and supposedly a stopping point. But where are the dots connecting the two and where are her documents? Also a Commissioned Revenue Officer is not the same as an Officer of the United States with a civil Commission. All Miss Amy has is a form 61, clearly stating she is a mere employee of the Government of the United States. I have a form 61 on the past commissioner, and she is of a lower ilk than him. See the example of commissioner Rossotti's form 61 and note that Rossotti is a mere employee of the Government of the United States.

I was looking at the affidavit and a friend called and we were discussing the 26 CFR 301.7602-1 that Miss Amy has in her affidavit. John has a book on administrative law and told me that there are three basic types of regulations:

1. Administrative

2. Interpretative

3. Substantive

2. Interpretative regulations do not have any force and effect of law.

3. Only Substantive regulations have the force and effect of law and you will be able to see the source statute at large at the bottom of the regulation in parenthesis, not brackets [ ]..
For an explanation of the substantive and administrative regulations,
see Chrysler v. Brown, 441 U.S. 281 (1970).

So the next obvious question is how do I find the substantive regulation in the CFR's, as they are all mixed up and not labeled.

Actually it is quite simple when you see it.

This is an Administrative type (could also be an interpretative type also), but ATF-6 included delineates the type.

At the bottom of 26 CFR 301.7602-1 is the following:

[32 FR 15241, Nov. 3, 1967, as amended by T.D. 7188, 37 FR 12796, June 29, 1972; T.D. 7297, 38 FR 34803, Dec. 19, 1973; T.D. 8091, 51 FR 23053, June 25, 1986; T.D. 9015, 67 FR 57331, Sept. 10, 2002]

The giveaway is that all of the federal register and other information is all in brackets "[]". The use of brackets in the government style manual is only to provide information only and text contained within the brackets is to be omitted.

This is a substantive regulation in title 27 CFR §70.22.

At the bottom of is the same information on the federal register, etc. in brackets, but above this is the AUTHORITY IN PARENTHESIS "( )". There is the item that MUST be present to demonstrate a substantive regulation and it will be in parenthesis, not brackets!

(Authority: Aug. 16, 1954, Chapter 736, 68A Stat. 901; (26 U.S.C. 7602))

[T.D. ATF-6, 38 FR 32445, Nov. 26, 1973, as amended by T.D. ATF-42, 42 FR 8367, Feb. 10, 1977; 55 FR 47608, Nov. 14, 1990; 57 FR 40328, Sept. 3, 1992; T.D. ATF-450, 66 FR 29023, May 29, 2001]

Miss Amy only has provided an administrative regulation and I will include it as it appears in West. I will also include in this posting the moving of the ATF substantive regulations under 26 CFR 301.xxx into title 27 in 1973 and you can see at the bottom of all of the summons, etc., the authority in said regulation is in parenthesis. Of course this is the problem that has been known under 26 USC Sec. 7602 when using the parallel table of authorities, you only find 27 CFR type regulations, i.e. substantive regulations.

See C.I.R. v Shapario, 424 U.S. 614, 633 (1976) that the Government shall provide at a minimum an affidavit of basic facts, to wit:

"The Government may defeat a claim by the taxpayer that its assessment has no basis in fact and therefore render applicable the Anti-Injunction Act without resort to oral testimony and cross-examination. Affidavits are sufficient so long as they disclose basic facts from which it appears that the Government may prevail. The Constitution does not invariably require more, Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and we would not hold that it does where collection of the revenues is involved."

Ralph