IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, :

:
Plaintiff, :
:
v. : Case No. 08-20585
:
PETER HENDRICKSON, :
:
Defendant. :

MOTION TO VACATE AND DISMISS

Peter Hendrickson respectfully moves the Court to vacate his conviction and sentence

and dismiss the charges in the matter of Case No. 08CR20585. This motion is based on two

independent subject-matter defects which have deprived the Court of jurisdiction ab initio; on

the fact that one of these defects also resulted in the trial jury never issuing a verdict on an

element of the offense charged; and on the fact that the trial in this case was tainted by the

commission of a fraud upon the court; all as set forth below.

The Court is authorized and required to vacate judgments and sentences made in

connection with proceedings conducted in the absence of jurisdiction and/or tainted by fraud:

“[A void judgment is one that] has been procured by extrinsic or collateral fraud, or
entered by a Court that did not have jurisdiction over subject matter or the parties.”

Rook v. Rook, 353 S.E. 2d 756 (Va. 1987);

“[D]enying a motion to vacate a void judgment is a per se abuse of discretion.”

Burrell v. Henderson, et al., 434 F.3d 826, 831 (6th CA 2006);

“[A] court must vacate any judgment entered in excess of its jurisdiction.”

Jordon v. Gilligan, 500 F.2d 701 (6th CA, 1974);

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 “If the trial court was without subject matter jurisdiction of defendant's case, his
conviction and sentence would be void ab initio.”

State v. Swiger, 125 Ohio.App.3d 456, (1998);

“[S]ubject-matter jurisdiction, because it involves a court’s power to hear a case, can

never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require
correction regardless of whether the error was raised in district court.”

United States v. Cotton, 535 U.S. 625, 630 (2002).

BACKGROUND AND BRIEF STATEMENT OF THE ISSUES

Peter Hendrickson was held to trial in October of 2009 on charges that he had violated

the federal statutory provisions codified at 26 U.S.C. § 7206(1).1 Mr. Hendrickson’s indictment

alleged various acts, but it contained no allegation that he was a person whose acts were or could

be within the scope of this statute, nor any language substantially (or even remotely) similar to

that of the charged offense statute in this respect. No evidence purporting to prove that Mr.

Hendrickson was within the class of actors subject to this statute has ever been presented or

alluded to throughout the course of proceedings in this case.

As will be shown below, there IS only a limited class of actors within the scope of 26

U.S.C. § 7206(1). Someone not within that class does not and cannot violate the provisions of the

statute regardless of the content of, or his belief about, any return, statement or other document

he makes and subscribes. Consequently, the indictment against Mr. Hendrickson failed to state

an offense and failed to invoke the Court’s jurisdiction. Further, since knowledge of an element

requiring proof by the government and consideration and determination by the triers of fact was

kept from both the Grand and petit juries, both the indictment and the trial verdict are invalid.

1
§ 7206. Fraud and false statements
Any person who—
(1) Declaration under penalties of perjury
Willfully makes and subscribes any return, statement, or other document, which contains or is
verified by a written declaration that it is made under the penalties of perjury, and which he does
not believe to be true and correct as to every material matter;

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 The case against Mr. Hendrickson suffers from additional jurisdictional defects.

Whenever the United States or its agents come to the view that a filed return is incorrect (false)

the Secretary of the Treasury is required by statute to create and subscribe his own contrary

returns asserting what he believes to be correct, and thereby defining, articulating and verifying a

claim as to what is allegedly false and against which the allegedly errant filer can have offended,

pursuant to 26 U.S.C. § 6020(b). No such returns have been created.

By its decision not to contest Mr. Hendrickson’s returns the government has tacitly

agreed that Mr. Hendrickson’s returns are accurate and correct. Consequently the Court has been

without jurisdiction either due to the unmet statutory mandate or because no actual offense has

been meaningfully defined and alleged, or both.

Additionally, and as an independent issue, the government’s failure to produce the

contrary returns of its own required by 26 U.S.C. § 6020(b) when of the view that filed returns

are not accurate or correct constitutes evidence that its assertions in seeking the indictment and

throughout trial that it or the IRS is of a view contrary to what Mr. Hendrickson says on his

returns were deliberate falsehoods. These falsehoods meet this Circuit’s five-point test for

constituting a judgment-voiding fraud upon the court.

ARGUMENT

A. The Meaning Of “Person” In The Charges Against Mr. Hendrickson Is Limited; The
Indictment Against Him Made No Allegation Or Reference To Him As Such A
“Person”; No Evidence Appears In The Record That Mr. Hendrickson Is Such A
“Person”; And The Court Therefore Has Never Had Jurisdiction.

1. The meaning of “person” relevant to the charges against Mr. Hendrickson is

limited to those in the class illustrated by the enumeration at 26 U.S.C. § 7343.

At 26 U.S.C. § 7343, a special definition of “person” is provided for purposes of Chapter

75, in which is found the offense charged in this case:

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 § 7343. Definition of term “person”
The term “person” as used in this chapter includes 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 in respect of which the violation occurs.

This statute identifies by illustration a distinctly expressed subclass of particularly-situated

persons to whom the offense can apply, being anyone under a duty to make and subscribe federal

tax documents on behalf of another person.2 Individuals within this subclass are thus

particularly-situated individuals distinguished from within the broad class “individual” given as a

generally-applicable meaning of “person” as laid out at 26 U.S.C. § 7701(a)(1):

§ 7701. Definitions
(a) When used in this title, where not otherwise distinctly expressed or manifestly
incompatible with the intent thereof—
(1) Person
The term “person” shall be construed to mean and include an individual, a trust,
estate, partnership, association, company or corporation.

The following diagram illustrates the relationship of the distinctly-expressed definition to

the more general one:

2
The use of the term “includes” in § 7343 means that the subclass of particularly-situated individuals is not
confined to those enumerated. See 26 U.S.C. § 7701(c). The term expands relevant “personhood” to others not listed
but similarly-situated. The subclass remains a subclass, however-- no individual is a relevant “person” if not
particularly-situated as are those enumerated. Mobley v. CIR, 532 F.3d 491 (6th Cir. 2008); Helvering v. Morgan’s,
Inc., 293 U.S. 121 (1934); Saginaw Bay Pipeline Co. v. United States, 338 F.3d 600 (6th Cir. 2003); Brigham v.
United States, 160 F.3d 759 (1st Cir. 1998); United States v. The Schooner Betsey and Charlotte, 8 U.S. 443 (1808),
Montello Salt Co. v. Utah, 221 U.S. 452 (1911).

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 Section 7343 must be construed as an override of § 7701(a)(1) under the express

provisions of 26 U.S.C. § 7701(a) itself. Under those provisions, the more general construction

of “person” (relevantly, “any individual”) only applies “where not otherwise distinctly expressed

or manifestly incompatible with the intent” of the statutory structure. Where an alternative IS

distinctly expressed, and the general “any individual” construction IS manifestly incompatible

with the statutory structure, the alternative construction is dictated. Here, both standards are met.

Because those individuals within the subclass illustrated by § 7343 are already among the

class “person” in § 7701(a)(1) (“any individual”), and yet are distinguished from within that

class for purposes of the offense statute, § 7343 is unmistakably a distinctly-expressed

alternative (more restricted) definition:

Further, those within the class illustrated by § 7343 are only some of those within the

class of persons defined at § 7701(a)(1), and not all of those in that broader class (else § 7343

would be irrationally superfluous and redundant).3 Therefore Congress could only have intended

3
If § 7343 individuals are NOT a subclass of § 7701(a)(1) “individuals”-- either due to being the whole of §
7701(a)(1) “individuals” or being outside some hidden meaning of that term-- then § 7701(a)(1) “individual” itself
cannot and does not mean “any individual”. This might shift the basis for the insufficiencies of the indictment, the
government’s evidentiary failures and the Court’s lack of jurisdiction, but it would mend none of them.

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§ 7343 to distinguish a narrower subclass from among those in the broader class, for purposes of

the statutes in Chapter 75. It is manifestly incompatible with that intent to read the meaning of

“person” as used in Chapter 75 as not excluding the “any individual” meaning of § 7701(a)(1).

Further still, any variance from construing § 7343 as the sole definition applicable to the

offense statute would not only be in obvious conflict with the express terms of both § 7343 and §

7701(a), but would also be at odds with well-settled law. The U.S. Supreme Court has repeatedly

emphasized that courts should interpret statutes in such a way as to favor specific provisions over

general ones. Corley v. United States, 129 S.Ct. 1558, 1568 (2009). Accord Crawford Fitting

Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987); Kepner v. United States, 195 U.S. 100, 125

(1904) ("It is a well-settled principle of construction that specific terms covering the given

subject-matter will prevail over general language of the same or another statute which might

otherwise prove controlling"). The 6th Circuit expresses the same principle even more broadly:

“[W]e are not at liberty to put our gloss on the definition that Congress provided by looking to

the generally accepted meaning of the defined term.” Tenn. Prot. & Advocacy Inc. v. Wells, 371

F.3d 342 (6th Cir. 2004).

Nor can one provision prudently be read to create conflict or make another provision

superfluous. Corley, 129 S.Ct. at 1566, 1568; United States v. Menasche, 348 U.S. 528 (1955).

That “person” is relevantly limited as argued above is well-settled law. In Mueller v.

Nixon, 470 F.2d 1348 (6th Cir. 1972), the Sixth Circuit analyzes the meaning of "person" under

the language and structure of 26 U.S.C. § 6671(b), which is identical in all respects to that of §

7343. The Court recognizes that the special definition of "person" in the § 7343 language is the

only valid definition of the term. Its analysis is careful and detailed, and merits quotation at

length:

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 [A]ppellant also disputes whether he could legally be held to be such a person under Sec.
6671(b) of the Internal Revenue Code, and therefore liable under 26 U.S.C. Sec. 6672,
which contains this definition:
(b) Person defined.-The term "person", as used in this subchapter, includes 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 in
respect of which the violation occurs.

This language does not by its specific words apply to appellant Mueller. He clearly was
not an officer or employee of the corporation which owed these taxes. The government
concedes this but claims that under settled case law the courts have expanded this
definition to include someone who by a contract is given the full power of control
associated with the powers of a corporate officer. In this respect the government relies
upon Pacific National Insurance Co. v. United States, 422 F.2d 26 (9th Cir.), cert. denied,
398 U.S. 937, 90 S.Ct. 1838, 26 L. Ed.2d 269 (1970), and United States v. Graham, 309
F.2d 210 (9th Cir. 1962). This court has dealt with this same statute (and cited the Pacific
National Insurance case) in Braden v. United States, 442 F.2d 342 (6th Cir. 1971). It does
not appear, however, that we have passed on the question of interpreting the statutory
definition of a "person" to include persons actually in control of a corporation, although
only as de facto officers.

The definition of "person" employed by Congress is not phrased in terms of exclusion.

The language, "The term 'person' . . . includes an officer or employee of a corporation, or
a member or employee of a partnership," is exemplary in nature. On this point we agree
with the following language of the Ninth Circuit:

The definition of "persons" in section 6671(b) indicates that the liability imposed
by section 6672 upon those other than the employer is not restricted to the classes
of persons specifically listed-officers or employees of corporations and members
or employees of partnerships. "[B]y use of the word 'include[s]' the definition
suggests a calculated indefiniteness with respect to the outer limits of the term"
defined. First National Bank In Plant City, Plant City, Florida v. Dickinson, 396
U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969). As we said in United States v.
Graham, 309 F.2d 210, 212 (9th Cir. 1962): "The term 'person' does include
officer and employee, but certainly does not exclude all others. Its scope is
illustrated rather than qualified by the specified examples." Pacific National
Insurance Co. v. United States, supra 422 F.2d at 30. (Footnotes omitted.)

Mueller v. Nixon, 470 F.2d 1348 (6th Cir. 1972)

The Court finds Mueller to be a "person" solely because his particular situation placed

him within the class illustrated by the enumerated list in the special "person" definition. The

Mueller Court plainly holds that the language in § 7343 provides the discrete and comprehensive

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meaning of the term “person”, explicitly endorsing the Ninth Circuit position that “[The] scope

[of the term “person”] is illustrated … by the specified examples [in §§ 6671(b) or 7343],” and

independently declaring that “The language [of the two statutes] is exemplary in nature.”

(Emphasis added.) Neither of these statements (nor the analyses in which they appear) would

make any sense if relevant “persons” were simply anyone from among the “any individual” class

of § 7701(a). Were relevant “persons” simply (or possibly) anyone from among the “any

individuals” of § 7701(a), neither the “scope” of §§ 6671(b) or 7343, nor the “exemplary” nature

of the sections would be of any interest or meaning in these cases or any others (and neither of

these sections would exist in the first place).

In 1999, the Third Circuit applies the same careful and rational respect for the plain

words of the law to §7343 directly. The Court faced a challenge by defendant Thayer to his

qualification as a "person" subject to a Chapter 75 charge in United States v. Thayer, 201 F.3d

214 (3rd Cir. 1999). After discussing the Supreme Court's reasoning in applying the identical

definition of "person" found in 26 U.S.C. § 6671(b) in Slodov v. United States, 436 U.S. 238

(1978), the Court concludes:

[F]or purposes of [26 U.S.C.] § 7202, the term "person" is defined by identical language.
See I.R.C. § 7343 ("The term 'person' as used in this chapter [I.R.C. ch. 75, encompassing
§§ 7201-44] includes 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 in respect of which the violation occurs."). Therefore, Thayer, as the president and
majority owner of MIS and ELOP, was properly charged and convicted as a "person"
under § 7202."

United States v. Thayer, 201 F.3d 214 (3rd Cir. 1999) (emphasis added).

There appears to be no case law whatever in conflict with the conclusion that the

language of § 7343 is the exclusive and limiting definition of “person” relevant to Chapter 75

and therefore to the charges in Mr. Hendrickson’s case. Faced with the challenge to report on any

such contrary case law in response to Mr. Hendrickson’s pre-trial motion on this issue, the

8
government was unable to do so, citing instead to inapposite cases in which the “person” subject

sometimes doesn’t even appear at all, or if it does, is addressed out of the context of the issue

presented here and with no analysis whatever.

In fact, one of the cases cited by the government, United States v. Condo, 741 F.2d 238

(9th Cir. 1984), not only fails to support the effort to find language of any kind contrary to Mr.

Hendrickson’s position but actually supports Mr. Hendrickson’s argument, instead. The Condo

Court's comments related to Condo's "person" argument reads as follows:

[Condo's] assertion that 26 U.S.C. §7343 only applies to business entities and their
employees ignores the word "includes" in the statute delineating the class of persons
liable. The word "includes" expands, not limits, the definition of "persons" to these
entities.

United States v. Condo, 741 F.2d 238 (9th Cir. 1984) (emphasis added).

At first glance, this two-sentence disposal appears to adopt the fallacy of §7343 being a

"supplement" of an (unidentified) external definition. However, aside from the fact that a fallacy

remains a fallacy even had the Condo Court embraced it, the Court does not, in fact, do so. On

the contrary, the Court's use of the term "delineating" makes clear that it recognizes the

definition at §7343 as the exclusive definition of "person" for purposes of Chapter 75.

"Delineating the class of persons liable" does not mean "supplementing" or "expanding" some

other class or definition, it means "establishing or identifying the class."

Consequently, even the awkward expression that follows the plain acknowledgement of

§7343 as being THE definition of "persons" as the term is used in Chapter 75 – just as Congress

says it is – must be seen as merely a hastily-rendered, mildly confused reference to the "limited

expansion" effect of "includes" (the “calculated indefiniteness” alluded to by the Ninth Circuit in

Pacific National Insurance Co. v. United States), which allows the class delineated in § 7343 to

be expanded to things not listed but which share the characteristics of those enumerated. Further,

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the Condo court was in no way responding to a coherent argument concerning § 7343 in any

event. As the Court describes Condo’s argument on this subject: “He asserts that the sixteenth

amendment only allows taxing income from "sources" (entities and monopolies created by law),

not persons.”

In short, like all the others cited by the government in its vain effort to muster a challenge

to Mr. Hendrickson’s position from any quarter, the Condo ruling DOESN'T support a reading of

the “person” provision contrary to Mr. Hendrickson's. Instead, it is irrelevant to the substance of

Mr. Hendrickson’s argument generally; contains no analysis whatever; and what little it DOES

say on the subject supports Mr. Hendrickson’s position, just as does the language in the law and

all precedential case-law in which the matter is given direct and meaningful consideration.

2. In light of the foregoing, the Court has always lacked jurisdiction in this case,
and must vacate Mr. Hendrickson’s conviction and dismiss the charges.

“We determine whether a district court had subject matter jurisdiction in a criminal case
by looking at the indictment or information. “To confer subject matter jurisdiction upon a
federal court, an indictment need [] charge a defendant with an offense against the
United States in language similar to that used by the relevant statute.” United States
v. Jacquez-Beltran, 326 F.3d 661, 662 n.1 (5th Cir. 2003).”

United States v. Scruggs, No. 11-60564 (5th Cir. 2012).

The indictment against Mr. Hendrickson contains no reference or allegation whatsoever

to his being a “person” relevant to the charges brought, nor contains any language remotely

similar to that of the charging statute in this respect. Indeed, the charging statute is not quoted at

all, and neither the common word nor the legal term “person” makes any appearance in the

indictment. See docket #3.

Nor was relevant “personhood” alleged by reference or otherwise. In pre-trial

proceedings in which Mr. Hendrickson challenged the indictment on this point, the government

and trial court argued that particular “personhood” was irrelevant to the charges, thereby

10
admitting that allegations in that regard were not even implied by the character of the indictment.

See docket #36 and #70.

Because particular “personhood” is an element of an offense under the charged statute,

the lack of this allegation means no actual federal offense was charged. The court has thus been

without jurisdiction ab initio:

"Federal criminal jurisdiction is limited to cases involving activities specifically made

criminal by either the Federal Constitution or Congress."

U.S. v. Corona, 934 F.Supp. 740, affirmed in part 108 F.3d 565 (5th CA 1997); and

“[I]t is well established that federal courts are courts of limited jurisdiction, possessing
only that power authorized by the Constitution and statute.”

Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir. 2003).

It is not a federal crime under 26 U.S.C. § 7206(1) for someone not a “person” within the

meaning of the term as used in the statute to make and subscribe any return, statement or other

document, regardless of its contents or his beliefs. Indeed, recognizing that relevant

“personhood” is a threshold jurisdictional issue and that Mr. Hendrickson is not a § 7343

“person”, the District Court itself has already expressly agreed that it would be bereft of

jurisdiction if “the definition set forth at § 7343 is … a “distinct [] express[ion]” [overriding the

“any individual” of 26 U.S.C. § 7701(a)(1)].” See docket #70, page 39.

As has been shown, the definition set forth at § 7343 is a distinct expression narrowing

“any individual” to “particularly-situated individuals” and it is manifestly incompatible with the

statutory structure to read § 7343 any other way. Mr. Hendrickson was not charged with being

such a particularly-situated individual; was not proven to be such a particularly-situated

individual; and, in fact, is not such a particularly-situated individual; therefore no actual federal

offense was alleged. Further, the question of whether Mr. Hendrickson was within a class subject

to the charges brought was clearly never considered or determined by a Grand Jury.

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 The indictment in this case was incomplete and invalid and the courts have been without

jurisdiction over the matters involved in the charges. Mr. Hendrickson’s conviction and sentence

are void, and they must be vacated:

“[S]ubject-matter jurisdiction, because it involves a court’s power to hear a case, can

never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require
correction regardless of whether the error was raised in district court.”

United States v. Cotton, 535 U.S. 625, 630 (2002); Accord Jordon v. Gilligan, 500 F.2d 701 (6th

CA, 1974) (“[A] court must vacate any judgment entered in excess of its jurisdiction.”); State v.

Swiger, 125 Ohio.App.3d 456, (1998) (“If the trial court was without subject matter jurisdiction

of defendant's case, his conviction and sentence would be void ab initio.”); Burrell v. Henderson,

et al., 434 F.3d 826, 831 (6th CA 2006) (“[D]enying a motion to vacate a void judgment is a per

se abuse of discretion.”). Such is the law here in Michigan:

“A "void" judgment, as we all know, grounds no rights, forms no defense to actions taken
thereunder, and is vulnerable to any manner of collateral attack (thus here, by habeas
corpus). No statute of limitations or repose runs on its holdings, the matters thought to be
settled thereby are not res judicata, and years later, when the memories may have grown
dim and rights long been regarded as vested, any disgruntled litigant may reopen old
wounds and once more probe its depths. And it is then as though trial and adjudication
had never been.”

Fritts v. Krugh, Supreme Court of Michigan, 92 N.W.2d 604, 354 Mich. 97 (1958).

B. The Offense Element Issue Of Mr. Hendrickson’s Personhood Relevant To The

Charges Was Never Considered and Determined By The Jury, Making The Trial
Outcome Invalid Under The Fifth and Sixth Amendments.

The issue of “personhood” relevant to the charges in this case necessarily rests on fact

issues of one kind or another. The court may not find, and the jury may not be instructed or be

led to assume, that relevant “personhood” is self-evident. This is true however “person” is

defined, and particularly so where a specialized definition of the term “person” is provided for

purposes of the criminal statute being charged.

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 Fact issues in a criminal trial such as the one conducted in this case are to be determined

by the jury, not by the Court. Thus, an articulation, attempted proof, and informed determination

by the jury of fact issues in regard to Mr. Hendrickson’s relevant “personhood” is required for a

valid trial outcome. Sullivan v. Louisiana, 508 U.S. 275 (1993); United States v. Gaudin, 515

U.S. 506 (1995).

There was no articulation, attempted proof, and informed determination by the jury of

fact issues in regard to Mr. Hendrickson’s relevant “personhood”-- indeed, the entire issue was

kept from the jury’s consideration. Mr. Hendrickson was denied due process and his jury never

issued a verdict on this element of the alleged offense, rendering the conviction invalid.

California v. Roy, 519 U.S. 2, 7 (1996).

C. The Court Has Been Without Jurisdiction Due To The Failure Of The United States To
Define And Articulate, And Thus Cognizably Allege, An Actual Offense In Regard To
Mr. Hendrickson’s Returns.

1. The government is required by statute to create and subscribe its own contrary
returns when alleging that those previously filed are required and are false,
whether willfully or otherwise.

When the United States is of the view that sufficient “income” has been received to cause

returns to be required, and that those filed are "false", it is required by statute to create its own

contrary returns, per 26 U.S.C. § 6020(b)(1):

(1) Authority of Secretary to execute return:

If any person fails to make any return required by any internal revenue law or regulation
made thereunder at the time prescribed therefore, or makes, willfully or otherwise, a false
or fraudulent return, the Secretary shall make such return from his own knowledge and
from such information as he can obtain through testimony or otherwise.

”Shall” in statutes is mandatory. Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523

U.S. 26, 35 (1998) (“The mandatory ‘shall’ … normally creates an obligation impervious to

judicial discretion.”) Per this statutory prescription, when the government chooses to contest,

13
dispute or disregard what it alleges is an offensive return, § 6020(b) lays out the mandatory

manner in which it is authorized and obligated to do so.

2. The government’s failure to create and subscribe returns contrary to Mr.

Hendrickson’s deprives the Courts of jurisdiction in regard to those returns.

Like the government’s failure to put any witness on the stand to testify that Mr.

Hendrickson’s returns were false, its failure to make returns pursuant to § 6020(b) constitutes an

admission that the government has actually recognized Mr. Hendrickson’s returns as being

correct. Correct returns are not false returns. A complaint under 26 U.S.C. § 7206(1) only

charges a valid federal offense when “falseness” of a material matter is meaningfully (and

challengeably) alleged. United States v. Peters, 153 F.3d 445, 461 (7th Cir. 1998). Here, both the

government and Mr. Hendrickson agree that, as a matter of law, no “subscribing to false returns”

offense has occurred.

The mere seeking of an indictment by government attorneys does not remediate or

supersede the government having declined to dispute Mr. Hendrickson’s returns. Such an action

amounts to an empty accusation, in regard to which there actually is no accuser; it is an exercise

of form but is devoid of substance. The missing substantive element defining and cognizably

articulating an offense is the making of a return by which someone attests to the government’s

beliefs, and makes its claims and accusations in a challengeable manner. Absent this element,

nothing has been lawfully alleged that can have been legally violated.

Since there was no federal crime, the federal courts are, and have always been, without

jurisdiction in this case. U.S. v. Corona, 934 F.Supp. 740, 108 F.3d 565 (5th CA 1997); Hudson

v. Coleman, 347 F.3d 138, 141 (6th Cir. 2003); Steel Co. v. Citizens for Better Environment, 523

U.S. 83 (1998). Mr. Hendrickson’s conviction must be vacated. State v. Swiger, 125

Ohio.App.3d 456, (1998); Burrell v. Henderson, et al., 434 F.3d 826, 831 (6th CA 2006); Jordon

14
v. Gilligan, 500 F.2d 701 (6th CA, 1974); United States v. Cotton, 535 U.S. 625, 630 (2002).

D. Mr. Hendrickson’s Conviction Was Accomplished By A Fraud Upon The Court,

Rendering That Conviction Void.

The government’s failure to make § 6020(b) returns is an unambiguous admission that it

is NOT of the view that Mr. Hendrickson’s returns are “false or fraudulent”. Thus, its assertions

to the contrary in its case against Mr. Hendrickson constituted fraud upon the court.

Not only did the government purport to a view of Mr. Hendrickson’s returns as “false” by

way of the indictment it sought from the Grand Jury and presented to the Court, but it had the

trial court expressly instruct Mr. Hendrickson’s petit jury that prosecution documents admitted

into evidence without witnesses reflected an IRS “view” that his returns were false. See Trial

Transcript, Vol. 2, p. 267 and Vol. 3, p. 437:

“I have now received into evidence these exhibits that the witness is receiving to which
contain the conclusion that remuneration which Peter Hendrickson received from
Personnel Management, Inc. constituted wages to Mr. Hendrickson. This evidence has
been admitted only for the purpose of establishing that the IRS was of the view that – I’m
sorry. That the Internal Revenue Service was of the view that Personnel Management,
Inc.’s payments to Mr. Hendrickson constituted wages and that this view was
communicated to Mr. Hendrickson.”

“This evidence was admitted only for the purpose of establishing that they were of the
view, as I had previously instructed you, that IRS was of the view that these payments, the
payments from Personnel Management, Incorporated to Mr. Hendrickson constituted
wages and that this view was communicated to Mr. Hendrickson.”

However, if the IRS really IS of a view contrary to what appeared on Mr. Hendrickson’s

returns, it is required under 26 U.S.C. 6020(b) to make its own returns declaring its contrary

assertions and claims. The agency’s failure to make such returns means that what was

represented to the Grand Jury, the Court and Mr. Hendrickson’s trial jury is NOT the IRS’s

“view”. As will be shown, this was a deliberate misrepresentation calculated to mislead.

Fraud is “Anything calculated to deceive another to his prejudice and accomplishing the

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purpose, whether it be an act, a word, silence, the suppression of the truth, or other device

contrary to the plain rules of common honesty.” 23 Am. J2d Fraud § 2. The 6th Circuit puts it

this way:

“Accordingly, cases require a party seeking to show fraud on the court to present clear
and convincing evidence of the following elements: “1) [conduct] on the part of an
officer of the court; that 2) is directed to the judicial machinery itself; 3) is intentionally
false, willfully blind to the truth, or is in reckless disregard of the truth; 4) is a positive
averment or a concealment when one is under a duty to disclose; and 5) deceives the
court.”

Johnson v. Bell, 605 F.3d 333, 339 (6th Cir. 2010); (quoting Carter v. Anderson, 585 F.3d 1007,

1011–12 (6th Cir. 2009)).

The government’s misrepresentations were those of officers of the court, directed to the

judicial machinery itself. They were intentionally false positive averments, calculated to deceive

the Grand Jury, the trial Court judge, and the trial jury into believing that the IRS held a view

that it does not. That this was done because the government expected to benefit thereby is self-

evident; there is no other reason for the making of a false assertion, and especially one untestable

by defense examination of any witness holding this purported “view”.

Plainly, the purpose of this fraud was to induce the jury toward the easy path of

fallaciously concluding “from authority” that Mr. Hendrickson had received “wages” instead of

laboring to come to its own conclusions. This corrupt seduction was all the more powerful

considering the dearth of actual fact evidence presented in trial and the complicated definitional

instructions given as to the meaning of “wages”. The jury was instructed not to take these

assertions of an “official view” that Mr. Hendrickson’s returns were false as evidence of that

very thing, but this was merely closing the barn door after the cows were long gone. There was

no reason to make the untestable and false assertions in the first place other than to improperly

influence the jury, and they must be presumed to have done so. See Connecticut v. Johnson, 460

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U.S. 73, 84-85 (1983): “Because a conclusive presumption eases the jury’s task, “there is no

reason to believe the jury would have deliberatively undertaken the more difficult task” of

evaluating the evidence []. Sandstrom, 442 U.S. at 526, n. 13.”

A judgment induced by fraud is void. Mr. Hendrickson’s conviction should be vacated.

“[A void judgment is one that] has been procured by extrinsic or collateral fraud, or
entered by a Court that did not have jurisdiction over subject matter or the parties.”

Rook v. Rook, 353 S.E. 2d 756 (Va. 1987).

“We think, however, that it can be reasoned that a decision produced by fraud on the
court is not in essence a decision at all, and never becomes final.”

Kenner v. C.I.R., 387 F.2d 689, (7th CA, 1968);

“[D]enying a motion to vacate a void judgment is a per se abuse of discretion.”

Burrell v. Henderson, et al., 434 F.3d 826, 831 (6th CA 2006).

CONCLUSION

As is made clear in the foregoing, there is no rational manner in which the existence of 26

U.S.C. § 7343 can be interpreted except as the sole definition of the class of individuals

qualifying as “persons” relevant to the offense conduct with which Mr. Hendrickson was

charged. Otherwise, § 7343 must be inescapably, inexplicably and impermissibly superfluous (or

“includes” must be given a meaning and effect completely contrary to well-settled law, and the

definition of person” at 26 U.S.C. § 7701(a) must be held not all-inclusive and exclusive of

anyone not enumerated as in § 7343—which would still return us to the inescapable conclusion

that § 7343 is the sole definition relevant to “persons” for purposes of Chapter 75).

Mr. Hendrickson was never alleged to be a person within the class defined by § 7343

either in the indictment or otherwise (nor proven to be). Therefore, no actual federal offense was

charged (and none proven), and the courts have been without jurisdiction ab initio.

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 Further, the fact element of relevant “personhood” was kept from the knowledge and

consideration of both the Grand and petit juries. No effort was made in trial to prove that Mr.

Hendrickson was in this class. Because the juries in the case were denied knowledge of an

element of the offense and no evidence proving that element was presented, the indictment and

verdict in the case are both inherently invalid.

Further still, Mr. Hendrickson’s returns are (and were at time of trial) acknowledged as

accurate and correct by the agency responsible for making such determinations on the

government’s behalf. Accurate and correct returns are manifestly not “false” as to any material

matter; thus, no actual federal offense has occurred on this ground as well, and again, the courts

are, and have been, without jurisdiction in this matter.

Finally, as has been shown, the government made deliberate, repeated prejudicial

misrepresentations throughout trial as to the “view” of the Internal Revenue Service, without any

legitimate purpose and in a plain effort to induce a jury conclusion concerning an element of the

charged offense based on a fallacious “resort to authority” rather than by impartial consideration

of actual fact evidence. Thus, the proceedings have been fatally tainted by a fraud upon the court.

In light of these defects of jurisdiction and process, Mr. Hendrickson moves the Court to

vacate his conviction and dismiss the charges in this case, and to afford him such other relief as

the Court may find proper.

_____________________________/__/__
Peter E. Hendrickson, in propria personam

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