Commissioner of Internal Revenue

1111 Constitution Avenue, N.W.

Washington, D. C. 20224

Dear Mrs. Richardson,

Many years ago, I tried to find within the Internal Revenue

Code the section which created your agency, the Internal Revenue

Service, but I was unable to find it. I then decided to locate

other sources of information regarding how the Internal Revenue

Service was established and what I fund was nothing short of

amazing.

In 1972, an Internal Revenue Manual 1100 was published in both

the Federal Register and Cumulative Bulletin; see 37. Reg. 20960,

1972-2 Cum. Bul. 836, a copy of which is attached for your

convenience. On the very first page of this statement published in

the Bulletin, the following admission was made:

"(3) By common parlace [sic] and understanding of the time, an

office of the importance of the Office of Commissioner of

Internal Revenue was a bureau. The Secretary of the Treasury

in his report at the close of the calendar year 1862 stated

that `The Bureau of Internal Revenue has been organized under

the Act of the last session...' Also it can be seen that

Congress had intended to establish a Bureau of Internal

Revenue, or thought they had, from the act of March 3, 1863, in

which provision was made for the President to appoint with

senate confirmation a Deputy Commissioner of Internal Revenue

`who shall be charged with such duties in the bureau of

internal revenue as may be prescribed by the Secretary of the

Treasury, or as may be required by law, and who shall act as

Commissioner of internal revenue in the absence of that

officer, and exercise the privilege of franking all letters and

documents pertaining to the office of internal revenue.' In

other words, `the office of internal revenue' was `the bureau

of internal revenue,' and the act of July 1, 1862, is the

organic act of today's Internal Revenue Service."

This statement, which again appears in a similar publication

appearing at 39 Fed. Reg. 11572, 1974-1 Cum. Bul. 440, as well as

the current IRM 1100, essentially admits that Congress never created

either the Bureau of Internal Revenue or the Internal Revenue

Service. To conclude that "Congress thought it had created this

agency" is an admission that even the government itself cannot even

find anything which created either agency. The only office created

by the act of July 1, 1862, was the Office of the commissioner;

nether the bureau nor the Service was actually created by any of

these acts.

I have no doubt that when employees of the IRS were researching

its origins so that this statement could be included within IRM

1100, those employees must have performed develop regarding

precisely how the IRS came into being. But besides the problem that

these acts simply did not create either the Bureau or the IRS is the

fact that these acts were repealed by the adoption of the Revised

Statutes of 1873. Therefore, it would appear that your agency has

never been created by any act of Congress, and this is a serious

flaw.

At the state level, it is a well acknowledged rule that a duly

constituted office of state government must be created either by the

constitution itself or by some legislative act; see Patton v. Bd. of

Health, 127 Cal. 388, 393, 59 P. 702, 704 (1899)("One of the

requisites is that the office must be created by the constitution of

the state or it must be authorized by some statute"); First Nat.

Bank of Columbus v. State, 80 Neb. 597, 114 N.W. 772, 773 (1908);

State ex rel. Peyton v. Cunningham, 39 Mont. 197, 103 P. 497, 498

(1909); State ex rel. Stage v. Mackie, 82 Conn. 398, 74 A. 759, 761

(1909); State ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E. 276, 279

(1923)("a position is a public office when it is created by law");

Coyne v. State, 22 Ohio App. 462, 153 N.E. 876, 877 (1926)("Unless

the office existed there could be no officer either de facto or de

jure. A de facto officer is one invested with an office; but if

there is no office with which to invest one, there can be no

officer. An office may exist only by duly constituted law"); State

v. Quinn, 35 N.M. 62, 290 P. 786, 787 (1930); Turner v. State, 226

Ala. 269, 146 So. 601, 602 (1933); Oklahoma City v. Century

Indemnity Co., 178 Okl. 212, 62 P.2d. 94, 97 (1936); State ex rel.

Nagle v. Kelsey, 102 Mont. 8, 55 P.2d. 685, 689 (1936); Stapleton v.

Frohmiller, 53 Ariz. 11, 85 P.2d. 49, 51 (1938); Buchheltz v. Hill,

178 Md. 280, 13 AA.2d 348, 350 (1940); Industrial Comm. v. Arizona

State Highway Comm., 61 Ariz. 59, 145 P.2d 846, 849 (1943); State ex

rel. Brown v. Blew, 20 Wash.2d. 47, 145 P.2d 554, 556 (1944); Martin

v. Smith, 239 Wis. 314, 1 N.W.2d 163, 172 (1941); Taylor v.

Commonwealth, 305 Ky. 75, 202 S.W.2d. 992, 994 (1947); State ex rel.

Hamblen v. Yelle, 29 Wash.2d 68, 185 P.2d. 723, 728 (1947); Morris

v. Peters, 203 Ga. 350, 46 S.E.2d. 729 (1948); Weaver v. North

Bergen Tp., 10 N.J. Super. 96 A.2d 701 (1950); Tomarls v. State, 71

Ariz. 147, 224 P.2d. 209, 211 (1950); Pollack v. Montoya, 55 N.M.

390, 234 P.2d. 336, 338 (1951); Schaefar v. Superior Court In for

Santa Barbara County, 248 P.2d. 450, 453 (Cal.App. 1952; Brusnigham

v. State, 86 Ga.App. 340, 71 S.E.2d. 698, 703 (1952); State ex rel.

Mathews v. Murray, 258 P. 982, 984 (New. 1953); Dosker v. Andrus,

342 Mich. 548, 70 N.W.2d 241, 245 (1955); Hetrich ...County Comm. of

Anne Arundel County, 222 Md. 304, 159 A.2d 642, 643 (1960); Melland

v. Cody, 359 Mich. 78, 101 N.W.2d. 336, 341 (1960); Jones v. Mills,

216 Ga. 616, 118 S.E.2d. 484, 485 (1961); State v. Hord, 7 264 N.C.

149, 141 S.E.2d 241, 245 (1965); Planning Bd. Of Tp. Of West Milford

v. Tp. Council of Tp. Of West Milford, 123 N.J.Super. 135, 301 A.2d

781, 784 (1973); Vander Linden v. Crews, 205 N.W.2d 686, 688 (Iows

1973); Kirk v. Flournay, 35 Cal.App. 3d 553, 111 Cal. Rptr. 674, 675

(1974); Wargo v. Industrial Comm, 58 111.2d 234, 317 N.E.2d 519, 521

(1974); State v. Balley, 220 S.E.2d 432, 435 (W.Va. 1975); Leek v.

Theis, 217 Kan. 784, 539 P.2d 304, 323 (1975); Midwest Television,

Inc. V. Champaign-Urbana Communication, Inc., 37 111.App.3d 926, 347

N.E.2d 34, 38 (1976); and State v. Pinckney, 376 N.W.2d 433, 436

(Iowa 1979).

This same rule applies at the federal level; see United States

v. Germaine, 99 U.S. 508 (1879); Norton v. Shelby County, 118 U.S.

425, 441 6 S.Ct. 1121 (1886)("there can be no office, either de jure

or de facto, if there be no office to fill"); United States v.

Mouat, 124 U.S. 303, 8 S.Ct 505 (1888); United States v. Smith, 124

U.S. 525, 8 S.Ct. 595 (1888); Glavey v. United States, 182 U.S. 595,

607, 21 S.Ct. 891 (1901)("The law creates the office, prescribes its

duties"); Cochnower v. United States, 248 U.S. 405, 407, 39 S.Ct.

137 (1919)("Primarily we may say that the creation of offices and

the assignment of their compensation is a legislative function...

And we think the delegation of such function and the extent of its

delegation must have clear expression or implication"); Burnap v.

United States, 252 U.S. 512, 516, 40 S.Ct. 374, 376 (1920); Metcalf

& Eddy v. Mitchell, 269 U.S. 514, 46 S.Ct. 172, 113 (1926); N.L.R.B.

v. Coca-Cola Bottling Co. Of Louisville, 350 U.S. 264, 269, 76 S.Ct.

383 (1956)(" Officers' normally means those who hold defined

offices. It does not mean the boys in the back room or other

agencies of invisible government, whether in politics or in the

trade-union movement"); Crowley v. Southern Ry. Co., 139 F. 851, 853

(5th Cir. 1905); Adams v. Murphy, 165 F. 304 (8th Cir. 1908); Scully

v. United States, 193 f. 185, 187 (D.Nev. 1910)("There can be no

offices of the United States, strictly speaking, except those which

are created by the Constitution itself, or by an act of Congress");

Commissioner v. Harlan, 80 F.2d 660, 662 (9th Cir. 1935): Varden v.

Ridlings, 20 F.Supp. 495 (E.D. Ky. 1937); Annonl v. Blas Nadal's

Heirs, 94 F.2d 513, 515 (1st Cir. 1938); and Pope v. Commissioner,

138 F.2d 1006, 1009 (6th Cir. 1943).

Since I have reached the conclusion that the IRS has never been

created by Congress, I am asking you to provide to me the captation

of any statute which really did create the IRS. Since this is a

question of profound national importance, I request that you provide

an answer to me within 20 days. Failing a response within that time

period, I shall conclude that you cannot find any such statute and

shall act accordingly.

Your Truly,