Brief and Memorandum of Law
Affidavit of Truth - Specific Negative Averment
Actual and Constructive Notice

Property taxation must fall within constitutional guidelines set forth for all People of our nation. To be applied other than under constitutional parameters is to make such a law or application null and void:

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void;" and the courts, as well as other departments, are bound by that instrument." Marbury v Madison, 5 US 1803 (2 Cranch) 137, 170, 180, and NORTON v. SHELBY COUNTY, 118 U.S. 425.

Direct taxes must be "apportioned among the several states which may be included within this Union". [See Article I, Section 2, Clause 3 and Article 1, Section 9, Clause 4.] These include taxes directly upon people or personal property. "...all duties, imposts and excises [indirect taxes], shall be uniform throughout the United States". [See Article I, Section 8, Clause 1.]

When an act of the legislature is repugnant or contrary to the constitution, it is, ipso facto, void." 2 Pet. R. 522; 12 Wheat. 270; 3 Dall. 286; 4 Dall. 18.

[p]owers not granted (to any government) are prohibited." United States v. Butler, 297 U.S 1, 68 (1936).

Insofar as a statute runs counter to the fundamental law of the land, (constitution) it is superseded thereby." (16 Am Jur 2d 177, Late Am Jur 2d. 256)

Thus, in the matter of taxation, the Constitution recognizes the two great classes of direct and indirect taxes, and lays down two rules by which their imposition must be governed, namely: the rule of apportionment as to direct taxes and the rule of uniformity as to duties, imposts and excises." ...determining that, the classification of Direct adopted for the purpose of rendering it impossible for the government to burden, by taxation, accumulation of property, real or personal, except subject to the regulation of apportionment..." Pollock v. Farmers' Loan & Trust Co. 158, U.S. 601, at 637 (1895).

The name of the tax is unimportant that it is the substance and not the form which controls;' that the limitations of the constitution cannot be 'frittered away' by calling a tax indirect when it is in fact direct." Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429, 580©1, 583 (1895.

That decision affirms the great principle that what cannot be done directly (direct taxation) because of constitutional restriction cannot be accomplished indirectly by legislation which accomplishes the same result." Fairbanks v. U.S. 181 U.S. 283, 294 (1901).

"If it be true by varying the form the substance may be changed, it is not easy to see that anything would remain of the limitations of the constitution, or of the rule of taxation and representation, so carefully recognized and guarded in favor of the citizen of each state. But constitutional provisions cannot be thus evaded. It is the substance, and not the form, which controls, as has been established by repeated decisions of this court." Id. At 296.

The Constitution of the United States of America and Case law shows that capitation taxes and taxes on my personal private property are in the category of direct taxes as being applied to me today by Archuleta County, but which must be apportioned among the States as required by the United States Constitution if it is a direct tax. (See Supreme Court Case law - Penn Mutual Indemnity Co. v. C.I.R., 277 F.2d 16, 19-20 (3rd Cir. 1960); Steward Machine Co. v. Davis, 301 U.S. 548, 581-582 (1937)).

The Constitution of the United States of America and Case law shows that since capitation taxes and taxes on my personal private property must be apportioned among the States in accordance with the United States Constitution, and my personal private property tax is NOT being legally apportioned among the States (or Colorado state) by Archuleta County, they must therefore be in the category of indirect taxes, which are taxes imposed on the happening of an event or activity. Supreme Court, Tyler v. United States, 281 U.S. 497, at 502 (1930).

Direct taxes bear immediately upon persons, upon possessions and enjoyments of rights. Indirect taxes are levied upon the happening of an event..." Knowlton v. Moore. 178 U.S. 41.

A tax laid upon the happening of an event as distinguished from its tangible fruits, is an indirect tax..." Tyler v. U.S. 497 at pg 502 (1930)

A tax levied upon property because of its ownership is a direct tax, whereas one levied upon property because of its use is an excise, duty or impost." © Manufactures' Trust Co. vs. U.S., 32 F. Supp. 289.

In Archuleta County records or documentation, I do not find any tax imposed on any activities I am involved in as rights under the constitution, nor do I find a section in the Colorado Revised Statutes or county law that makes me subject to or liable for any direct or indirect, unconstitutionally applied private property tax.

am making a final request for documents under the COLORADO PUBLIC (OPEN) RECORD ACT (CORA) regarding the following:

1. Documentation regarding which type of tax my private property County taxes fall under; "direct" or "indirect," or other taxing category, naming the specific category.

2. Please provide certified documents showing Archuleta County's legal and constitutional authority, including statutory law (positive law) to tax, directly or indirectly, my personal, private property, including on land and home, since it is now being applied as neither direct nor indirect. i.e. In order for property taxes to begin to be legal and constitutional, they would have to be either apportioned according to the Colorado State census, (direct taxation), or uniformly as an equal charge to ALL property owners, (indirect taxation) and according to a taxable "activity or event" I am engaged in that is not a constitutional right and which CAN be taxed.

"The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. United States Supreme Court reminds us in Hale v. Henkel, 201 U.S. 43 (1906):

The legal right of an individual to decrease or ALTOGETHER AVOID his/her taxes by means which the law permits cannot be doubted" --Gregory v. Helvering, 293 U.S. 465

The fact is, property is a tree; income is the fruit; labour is a tree; income the fruit; capital, the tree; income the

The point being made is that the tree (private property, land, wages, salaries, compensation) is NOT taxable, while the "fruit" (or "income" FROM said property or wages) of the tree CAN possibly be taxed, (but only according to constitutional provisions). Tax upon income derived from, say, rental property, CAN be taxed, but ONLY according to the Constitution, because the tax does NOT diminish the principal, or lessen the value of the person or property.

3. Please also provide documentation of the responsible party(s) who authorizes said taxes, and their jurisdiction on this issue, to include signature and printing of that name on this document. There must be statutory law (positive law) that exists which allows this taxation, but it cannot be in conflict with the Constitution;

Anyone entering into an arrangement with the government takes the risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority, even though the agent himself may be unaware of limitations upon his authority." The United States Supreme Court, Federal Crop Ins. Corp, v. Merrill, 332 US 380-388 L1947)

I am requesting proof of this authority in law, and challenging county authority to tax my personal private property. In addition, below are case law quotes supporting this request for legal documentation on the legal validity of property taxes I have paid and your office claims I am still subject to.

The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void and ineffective for any purpose, since its unconstitutionality dates from the time of its enactment... In legal contemplation, it is as inoperative as if it had never been passed... Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no right, creates no office, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it... A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supercede any existing law. Indeed insofar as a statute runs counter to the fundamental law of the land, (the Constitution JTM) it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it." NORTON v. SHELBY COUNTY, 118 U.S. 425 (1886).

...all laws which are repugnant to the Constitution are null and void' (Marbury v Madison, 5 US 1803 (2 Cranch) 137, 174, 170).

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ...shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding." Article six of the U.S. Constitution.

Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." - Miranda v. Arizona, 384 U.S. 436, 491.

The claim and exercise of a constitutional right cannot be converted into a crime. - Miller v. U.S., 230 F 2d 486, 489.

"There can be no sanction or penalty imposed upon one because of this exercise of Constitutional rights."- Sherar v. Cullen, 481 F. 945.

The construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction, and such deference is particularly appropriate where an agency's interpretation involves issues of considerable public controversy and Congress has not acted to correct any misperception of its statutory objectives." CBS, INC. v. FCC, 453 US 367 (1981)

My right to not be taxed illegally or unconstitutionally stands firm in law, but this right appears to me to be violated through forced private property taxation by Archuleta County, and the exercise of my right to not be illegally taxed can be "converted into a crime" for not paying these taxes.

4. Documentation as to why I am required to pay the following taxes which I have no part in receiving tangible benefits from - taxation without representation:

List taxes and contest, such as...

School District taxes; $333.09 (I Contest)

Upper San Juan Health Tax; $57.47 (I Contest)

Upper San Juan Library tax; $19.52

Southwestern Water District tax; $2.92 (I Contest)

San Juan Water Conservation Tax; $4.11 (I Contest)

5. Please provide a complete record of all taxes paid by me on the property listed below, since purchase on January 16, 2004, to include itemization of taxes for land, taxes for buildings on said land, or any other taxed item.

1. I am not in receipt of any documentation showing what type of taxes I am being assessed for, direct, indirect or named other type of tax.

2. I am not in receipt of any documentation showing Archuleta County's legal and constitutional authority, including statutory law (positive law) to tax, directly or indirectly, my personal, private property, since it is now being applied as neither direct nor indirect according to law.

3. I am not in receipt of any documentation showing I am legally liable for private property taxes applied contrary to the constitution of the U.S.A.

3. I am not in receipt of any documentation showing the names of the responsible party(s) who authorizes said personal property taxes, and their jurisdiction on this issue, nor signature and printing of that name included in the document.

4. I am not in receipt of any documentation showing why I am liable for the above listed A-E, itemized taxes being assessed against me, nor documentation showing the benefits I personally receive for each of these taxes... i.e. how I am being represented by these taxes.

6. I am not in receipt of any documentation showing the method of assessment, the rules for assessment, the financial criteria used for this assessment or copy of any independent, certified appraisal of said property.

5. I am not in receipt of any documentation showing the name and company name of independent appraiser, or the legal, certified status of said appraisal.

6. I am not in receipt of any document rebutting the previous certified documents, point by point, sent as listed above.

This is actual and Constructive Notice that I believe this to be a criminal activity against me personally and I am requesting legal rebuttal, point by point, of these positions, or it will be presumed to be a correct assessment of my personal situation, and will remove my property from the tax records or future taxation in perpetuity. Refund, with damages as listed above (or agreeable settlement), will be expected no later than 30 days from date of this document, if my legal position is correct, or 5% interest rate per month will accrue on total as outlined above. The application of force or coercion in any way which counters the supreme law of the land, and which extracts financial consideration from me, under the color of law, is criminal conversion and fraud under UCC laws, Common Law, and is a violation of the Racketeering (RICO) laws. Case law provides the following penalties on ANY involved with such activities, ignorance not withstanding:

CLEOPATRA HASLIP et al. v. PACIFIC MUTUAL LIFE INSURANCE, INC. 499 U.S.1, 113 Fed 2d 1, 111 sct 1032 (no. 89-1279)

For Conversion: 4 times (the defrauded amount) for Compensatory Damages 200 times (that 4 times figure) for Punitive Damages

This means that I am entitled to 4 times the total amount of any possible taxes I have wrongfully and fraudulently paid Archuleta County to date, and then 200 times that compensatory amount as punitive damages.

The Supreme Court ruled that Municipalities cannot exert any acts of ownership and control over property that is not OWNED by them, see Palazzolo v. Rhode Island 533 US 606, 150 L.Ed. 2d 592, 121 S.Ct. ___(2001) (no expiration date on the taking clause for City's illegal enforcement of its Codes on the man's private property and restricting the man's business), affirming both Lucas v South Carolina Coastal Council, 505 US 1003, 120 L.Ed. 2d 798 (1992).(butterfly activists and Code Enforcement cannot restrict development of the man's private swampland unless they lawfully acquire the land FIRST, surveying with binoculars constitutes a "takings"), and Monterey v. Del Monte Dunes, 526 US 687 (1999), 143 L.Ed. 2d 882 S.Ct.____ (1998).

In the Monterey case, the California private property owner was awarded $8 million for Code Enforcement's illegal trespass and restriction of his business, and another $1.45 million for the aggravation of a forced sale.

Federal Law also prohibits Cities and Counties from issuing citations against businesses, see Title 18 U.S.C.891-896, quoting Section 891 "An extortionate means is any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property."

Black's Law Dictionary 5 th Edition (page 1140): Recaption. At Common Law, a retaking or taking back. A species of remedy by the mere act of the party injured (otherwise termed "reprisal"), which happens when anyone has deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant. In this case, the owner of the goods, and the husband, parent, or master may lawfully claim and retake them, wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace. Prigg v. Pennsylvania, 41U.S. (16 Pet) 539, 612, 10L.Ed. 1060.

Notice of RICO Crimes

Assessor's office actions in demanding and unconstitutionally enforcing property tax code against me is in violation of my civil rights and is in violation of the Racketeering (RICO) laws, fulfilling the four requirements for a RICO crime to exist as follows:

1). Association In Fact; two people acting together (knowingly or unknowingly) which affects Interstate Commerce...

The actions in activities and enforcement clearly constitute financial fraud, which is supported by multiple layers of "associations" with the primary intent of taking assets from citizens and profiting the government. This need only be $1.00 in loss to fulfill this requirement.

2). Two or more similar acts of fraud, mail fraud or extortion having occurred...

he actions have been ongoing, as proven by the ongoing efforts by the Assessor's office yearly. In addition, mail fraud, a Federal Crime, is also involved with this scheme by the use of the postal system to extract finances unlawfully.

3). Money or property deprivation...

his is self evident in Assessor's office correspondence, demands, printed material, court proceedings, etc.

4). Pattern is likely to continue.

Pattern has been continuing for many decades and is growing worse. The only way it will stop is for the Rule of Law to be enforced and for constitutional rights to be enforced... In other words, oaths of office must be obeyed and not violated, creating even more criminal events in the way of treason against the American People.

See also 18 USC Sec. 241 01/19/04 TITLE 18- CRIMES AND CRIMINAL PROCEDURE - PART I - CRIMES CHAPTER 13 - CIVIL RIGHTS Sec. 2414 Conspiracy against rights. If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same. . . They shall be fined under this title or imprisoned not more than ten years, or both;

CORA Violation Notice

Failure to respond within 30 days to this Colorado Open Records Act request, or supplying incomplete, misleading, or errant responses, is punishable under CRS 24-72-201 et seq., by a $100.00 fine, 90 days in jail, or both, for EACH infraction. This is Evidence in Fact for any court proceedings.

If no rebuttal, point by point, is forthcoming within 30 days from the date of receipt, you will be in default.

All Specific Rights are explicitly reserved, without prejudice, U.C.C. 1-207.

Signed:_______________________________________________

Name and address

Property description

Name

I declare under penalty of perjury that the identified sovereign individual, (Name) appeared before me with picture identification, and acknowledged this document before me on;

Date: __________________ /s/

_________________________ (NOTARY PUBLIC'S JURAT)

I, Name, do certify that I mailed this original certified document consisting of Brief and Memorandum of Law, Affidavit of Specific Negative Averment, Actual and Constructive Notice - Brief and Memorandum of RICO (Racketeering) Crimes, to the Archuleta County Assessor's office, certified mail # ####, and copies of original to the above named individuals, certified mail #'s listed above, all mailed on (date).