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From: Thomas Murrell Thornhill III
c/o Box 1755, U.S.P.S.
Nevada City, California, United States of America
No telephone service maintained.
April 13, 2000.
To: THE STATE OF CALIFORNIA
FRANCHISE TAX BOARD
GERALD H. GOLDBERG, EXECUTIVE OFFICER
P.O. Box 1468
Sacramento CA 95812-1468
FORWARD AND ADDRESS CORRECTION REQUIRED.
Dear Mr. Goldberg:
ADMINISTRATIVE AND JUDICIAL NOTICE REQUIRED
The FRANCHISE TAX BOARD, through the self-purported agency of one "Roger Lubiens", is again in Error.
1.a. This letter is a timely and legally sufficient response to the letters of one "Roger Lubiens" of (1) March 31, 2000, identified as 765:rtf:RDL:MS F200, and of (2) APRIL 4, 2000, identified as 765:RL:MS F200, which were mailed through the error of said "Roger Lubiens", purporting to be an officer/employee of the FTB.
1.b. I am returning each legally invalid Document because it is not Fair-on-its-Face. If each is intended to be a Notice, so far as I can determine, on-its-face, each Notices nothing.
If each is intended as a Demand, this "Roger Lubiens" has made the Demand impossible to perform.
I have marked each letter:
1.c. I have no reasonable cause to belive that this "Roger Lubiens" is a bona fide agent/employee/officer of the FTB. He/it has not presented any Proof of any authority.
1.d. I do not knowingly owe this "Roger Lubiens", or through him the FTB or its Principles, anything: not money, not performance, not compelled performance, upon any known lawful or legitimate premise.
Per Title 18, CCR (1999), section 18501: I am not married.
Per Title 18, CCR (1999), section 18501-1: I am not knowingly a fiduciary/joint fiduciary for anyone.
Per Title 18, CCR (1999), section 18505-2: I am not knowingly a guardian for a minor/gaurdian or committee for an insane person.
Per Title 18, CCR (1999), section 18505-3: I am not knowingly a receiver.
Per Title 18, CCR (1999), section 18505-4: I am not knowingly the executor or administrator of a decedent/estate.
I am not knowingly a bank or a corporation nor an officer thereof.
2.a. I want to make sure I understand the position this "Roger Lubiens" purports to have taken on your behalf. He maintains that:
(1) A valid tax return was filed in a timely manner for the Tax Year 1997.
(2) He did not like the way said return was signed.
(3) On the basis of that dislike, he purports to have the authority to unilaterally deem said return to be "invalid" without a Hearing or inquiry in violation of generally accepted principles of Due Process of law.
(4) He claims to have the authority to penalize me for filing an "invalid" return which HE unilaterally caused to be "invalid", thereby rendering it legally impossible for me to file a return.
(5) He claims to have the authority on your behalf to unilaterally Deny me a Hearing to inquire into this behavior on his part.
2.b. If 2.a. above accurately describes the situation, I Object; I do not believe that to be a reasonable position or the responsible position of a reasonable man.
2.c. A little history which is quite relevant is in order at this point:
In about 1990-1991, I was an employee of THE STATE OF CALIFORNIA for one week. Twelve days after I ceased being a STATE OF CALIFORNIA employee, I received my paycheck along with a Notice that I had just involuntarily joined a Deferred Compensation Program, the PST Plan, and that THE DEPARTMENT OF PERSONNEL ADMINISTRATION had taken a portion of my pay for this Plan. I determined through personal investigation at DPA that it was highly probable that this Plan was illegal and Demanded my money back. DPA did refund my money.
The next year, I again waas an employee of THE STATE OF CALIFORNIA for one week, DPA again took a portion of my paycheck, and I filed a Request for Determination with THE OFFICE OF ADMINISTRATIVE LAW.
About this same time I started endorsing my signature "without prejudice" as a specific reservation of my rights since I had determined that I probably was dealing with unscrupulous persons. Since that time I used that endorsement fairly regularly in ALL my commercial and government writings.
Six and one-half years later, THE OFFICE OF ADMINISTRATIVE LAW returned the Determination that: Yes, DPA had taken and held my money without legal authority under the pretense of underground regulations. That makes DPA a STATE OF CALIFORNIA entity engaged in criminal activity. The Director of DPA resigned about ten days after my receipt of the Determination; I do not know whether or not that was related to my Request for Determination or merely a "coincidence".
Since I received that Determination, I have endorsed almost every writing having to do with government or commerce "without prejudice".
By continuous usage with reasonable cause, my legal signature now effectively IS "without prejudice" [above] "Thomas M. Thornhill III" or "Thomas Murrell Thornhill III".
I will NEVER again treat with people whom I have proven to be crooks without a specific Reservation of my Rights.
"A party who, with explicit reservaton of rights, performs or promises performance or assents to performance in a manner demanded or offered by the other party does not therby prejudice the rights reserved. Such words as "without prejudice," under protest" or the like are sufficient." THE COMMERCIAL CODE (2000), section 1207.2.d. Since this "Roger Lubiens" appears to maintain the position that my signature so endorsed does not afford me any protection yet somehow renders a return invalid, I Demand that you Order this "Roger Lubiens" to immediately process the Return and to leave me alone thereafter.
2.e. I cannot begin to explain the confused state of mind required for this "Roger Lubiens" to twice read the statement:
See the Official Transcript (incorporated herein by reference): Appeal of Thomas M. Thornhill, III, 97A-1336, August 27, 1997 , pp. 4-5:
"... For the Record. I am not an attorney. I am not an accountant. I am not the executor of the state (sic) of this dummy (identified as THOMAS M. THORNHILL, III), I am not the fiduciary For (sic) this dummy (identified as THOMAS M. THORNHILL, III) over here.and then produce a statement like this:
"You people claim this dummy exists. So, Mr. McEvilly Over (sic) here is going to prove that.
"And until he proves that, I don't want to hear from you people."
"This is our authority to impose a tax on your client. As a taxpayer, defined under R&T Section Code 17004, your client will be held liable for state taxes. His dominant presence within this state is sufficient to create the potential tax liability [cite omitted]." [March 31, 2000, letter from "Roger Lubiens" identified as 765:rtf:RDL:MS F200, page 1, fourth paragraph.]Is this "Roger Lubiens" insane or merely deliberately disingenuous?
2.f. I also do not understand these statements:
"An undocketed hearing may only be granted, when the request for a hearing is received within the period of time allowable as a protest (Revenue and Tax [sic] Code Section 19044). The protest of the assessment must conttain a written request for an oral hearing; otherwise in the absence of a properly filed protest, the proposed assessment becomes final and due in 60 days after the mailing of the proposed assessment, pursuant to Revenue and Taxation Code Section 19041.Revenue and Taxation Code Sections 19041, 19044, and 19504 derive from statutes relating to the taxation of banks and corporations and seem to have nothing whatsoever to do with the administration or enforcement of the Personal Income Tax Act of 1935 (Stats.1935, c. 329, p. 1090)."Since there is no pending assessment, your request for this hearing is denied.
[March 31, 2000, letter from "Roger Lubiens" identified as 765:rtf:RDL:MS F200, page 1, second and third paragraphs.]and this statement:
"An undocketed hearing may only be granted, when the request for a hearing is received within the period of time allowable as a protest (Revenue and Tax [sic] Code Section 19044). Since no assessment has been made on the 1997 tax year, no hearing can be provided."[APRIL 4, 2000, letter from "Roger Lubiens" identified as identified as 765:RL:MS F200 page 1, second paragraph.]
2.g. I believe I am proceeding pursuant to THE REVENUE AND TAXATION CODE(2000), Section 21011 to Protest/Object within the FTB to the documented misbehavior of this "Roger Lubiens". Is there some relevant valid reason that the Director and/or the elected members of THE FRANCHISE TAX BOARD cannot provide a Docketed Protest Hearing?
It appears to me that this "Roger Lubiens" is engaged in actions which the California Court of Appeals has typified as:
The general rule is that an abuse of discretion occurs when, in proceedings before the agency, the accused is denied the right to present his defense and an order ... is made upon insufficient or no evidence. Here there is no evidence that the accused violated the code section. To the contrary the evidence was that he did not come within its limitations.2.h. I Deny the rest of the contents of the referenced two letters from this "Roger Lubiens". There is a standard of "fair dealing and good faith" which attaches to transactions between parties in this state under THE CIVIL CODE and this "Roger Lubiens" has consistently failed to rise to that standard.
It is equally clear that an abuse of discretion occurs when it appears from an examination of all the evidence that the penalty inflicted was the result of an arbitrary prejudice against the accused denying him a fair and impartial hearing. ...
But when discretion to act under certain contingencies is conferred upon an administrative agency, the party aggrieved by the action may attack the order complained of by a proceeding in mandamus, and when it appears in such proceeding that the action taken was arbitrary, capricious, or an abuse of such discretion the order will be vacated. ...
Here the complaint alleged that the agency acted arbitrarily and capriciously in refusing to permit the petitioner to intorduce material and competent evidence and in other respects prevented the petitioner from having a fair and impartial trial. King v. Board of Medical Examiners (1944), 65 C.A.2d 644, 651-653.
3.a. I am NOT knowingly acting as the "Representative" of any person. I do not have a client. I am acting in my own Right, within my God-granted Right of Self-defense, as articulated in the Preamble to the Constitution for the United States: "provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,"; Article 1, Section 1 of the Constitution for the State of California: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness, and privacy."; and THE CIVIL CODE (2000) sections 43: "...every person has, ..., the right of protection from bodily restraint or harm, ...and from injury to his personal relations." and 50: "Any necessary force may be used to protect from wrongful injury the person or property of oneself,..." to untangle and correct what I perceive as a major series of Mistakes of Fact concerning my interactions with the FTB.
3.b. I have probable cause to believe that the entity "THOMAS M THORNHILL III" was Procurated by the FTB in or about April, 1980, through deliberate and knowing misdirection and misrepresentation amounting to Actual Fraud. Said Fraud by the FTB has continued to date.
Unfortunately, I helped by ignorant, maybe stupid, but innocent Mistakes of Fact induced by the FTB via the Proffering of the FTB Form 540 together with various "Instructions".
I believe that I have discovered that I have been mistakenly acting on behalf of this entity "THOMAS M THORNHILL III", to my detriment, since its Procuration by the FTB in or about April, 1980.
Since I have been mistakenly identified with this entity "THOMAS M THORNHILL III" for almost twenty years, I will maintain that relationship just long enough to become UNmistakably UNidentified with it, to recover my property mistakenly tendered on its behalf, and then to consign it to the oblivion it so justly deserves.
I believe we can Stipulate that the FTB Form 540, as then and as currently formatted, is a "trick or device" designed to acquire money and other property from people who are not responsible for any liability, by misrepresentation and lying-by-omission amounting to Fraud.
3.c If any person is the "Representative" for the entity "THOMAS M THORNHILL III", it would have to the FTB, which relies upon, expects to benefit from, and has actually benefitted from, its existence. So the FTB can bear the burden of proving its existence.
Absent any valid Proof of the legitimate existence of the entity "THOMAS M THORNHILL III", I believe we can Stipulate that the actions of the FTB generally amount to what is legally styled "animo furandi".
4.a. I believe that this "Roger Lubiens" is attempting to produce an Examination Report detrimental to my interests without going through the niceties, inconveniences, or formality of conducting a Examination Hearing (maybe under REVENUE AND TAXATION CODE (2000), Section 19504).
I cannot afford to be making long-distance telephone calls at my own expense to (916) 845-4086 (effectively consenting to substitute a telephone interview for a face-to-face interview) so as to relieve said "Roger Lubiens" of his duty to conduct a face-to-face Hearing for the purpose of establishing and verifying the accuracy of the administrative Record.
If this "Roger Lubiens" is afraid to face his "clients"/"customers"/victims(?), it is almost a sure indication that he is knowingly doing something he considers to be illegal or unlawful. I believe the elected members of the FTB and I have an obligation to enquire into what that something is.
4.b. I hereby amend my Objection/Protest to this proceeding on the grounds of:
(1) Lack of demonstrable authority in the person of one "Roger Lubiens".
(2) Willful, arbitrary, and capricious misbehavior by this "Roger Lubiens" amounting to abuse of discretion if it can be proven that this "Roger Lubiens" even acts in an official capacity.
(3) Deliberate and knowing misrepresentation amounting to Actual Fraud by this "Roger Lubiens", as exemplified by his (four at this point) demonstrably false letters to the entity "THOMAS M THORNHILL III".
4.c. I believe that if this "Roger Lubiens" is allowed to continue his unlawful campaign that I will suffer immediate, irreparable, and irremediable harm to myself and my property.
I request that this "Roger Lubiens", if he really exists, be immediately relieved of Duty for actions amounting to willful misconduct under "color of authority".
I request that this matter be assigned to another appropriate Officer of the FTB (maybe THE TAXPAYERS' RIGHTS ADVOCATE mentioned in THE CIVIL CODE (2000), section 21004) who holds a rank sufficient to Hear this matter for the purpose of establishing and verifying the accuracy of the Record.
I Demand a face-to-face Hearing on the Record at the offices of the FTB and I reserve the right to confront and examine all witnesses against me, including the said "Roger Lubiens".
It would be very nice if the FTB would offer me off-street parking for the duration of said Hearing.
5. Since THE FRANCHISE TAX BOARD, through this "Roger Lubiens", consistently purports that there is an "Account", purports a Creditor-Debtor relationship exists between FTB and the entity "THOMAS M THORNHILL III", and purports that the entity "THOMAS M THORNHILL III" is the Debtor; I demand a "striking"/"rendering" of the "Account" that the FTB maintains in the name "THOMAS M THORNHILL III" and/or under the number 226-66-6234. Said striking SHALL contain, at minimum, the Initial balance of this "Account", the year-by-year recording of credits to this "Account", the year-by-year recording of debits from this "Account", and a detailed explanation of the identities of the payees and payors of this "Account". Said "rendering" will also account for any fees extracted from this "Account" by the FTB for any service(s) connected to maintaining this "Account".
The "striking"/"rendering" of said "Account" shall be certified by the Executive Officer of THE FRANCISE TAX BOARD as True, Complete, and Accurate.
Said "striking"/"rendering" MUST be made and delivered tome within ten (10) days, or THE FRANCHISE TAX BOARD will be estopped from relying upon said Account.
For "Roger Lubiens" and his/FTB's illegal discountenancing of THE COMMERCIAL CODE, this is a set of Rights granted a presumptive Debtor under THE CIVIL CODE.
Verified by my hand, this Day, the ______________ day of___________________ in the year of Our Lord, two thousand, in____________________________city, ______________________county, _______________________state, United States of America.
Signature: _______________________________________
Thomas Murrell Thornhill III
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