Income Tax: The People's Court

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~A child of the sixties, Indiana born and raised, I gradated from Purdue University and naively fell prey to the god of war. I wore wings, learned to kill and will carry my burden to the grave. ~Fate then smiled, led me to Aspen/Snowmass, Colorado and with a twinkle in her eye proclaimed I be a ski bum to this very day. A ski bum with time. Time to read and read some more. Time to meditate, time to travel, see the world, meet the folks, then go again a different way. And then sit still, very still and dwell with monks for awhile. ~Back to school I earned a M.A. in Counseling Psychology from the California Institute of Integral Studies. There I learned to write and refined my craft as a weekly columnist for the Aspen Daily News. ~Income Tax; a writers dream come true. Only how to get the story out? I have also self-published a book... Not Willful Party: Proof There is No Legal Requirement To File an Income Tax Return available at Amazon.com.

Friday, February 10, 2006

Income Tax: The People's Court

~~The following is based on a document that has been filed in the Pitkin County Court (Aspen, Colorado). Rule 902 of the Federal Rules of Evidence ensures it be admitted as evidence in a criminal proceeding. It will be my sole and complete defense against any and all charges stemming from my decision not to file an income tax return. (Italics added by author)

1. Upon joining the United States Air Force I solemnly swore an oath to God to defend America against all enemies, foreign and domestic. Therefore, and also to maintain my present ethical standards, I have publicly declined to file an income tax return for the past seven years.

2. On 31 Oct. 2005 the IRS assessed me for over 11 million dollars for taxes they claim I owe for the year 2002 (I am a man of modest means) and have filed a lien against all my property. Without complying with due process as required by Section 6320 of the Internal Revenue Code (IRC) the IRS gained control over everything I own.
~~This document goes far beyond income tax into the heart of a government that is profoundly out of control.

3. The IRS currently uses the following Miranda warning; “In connection with my investigation of your tax liability I would like to ask you some questions. However, first I advise you that under the Fifth Amendment to the Constitution of the United States I cannot compel you to answer any questions or to submit any information”...(IRS Handbook for Special Agents).

4. In Boyd v. US [116 US 616] the Supreme Court ruled “A taxpayer may refuse to exhibit his/her books and records for examination on the ground that compelling him/her to do so might violate his/her right under the Fifth Amendment and constitute an illegal search and seizure under the Fourth Amendment.”
~~Given that Boyd v. US guarantees that a citizen can legally withhold books and records from the IRS... is there a law that requires a citizen to file a return, which is simply a summary of books and records?

5. The title of Section 6012 of the IRC states; “Persons required to make returns of income.” However, according to the IRC [section 7806(b)] a code section’s descriptive title is not part of the law. In the body of code section 6012, where the law resides, we find; “Returns with respect to income taxes under subtitle A shall be made by the following: The Supreme Court [Cairo and Fulton R.R. Co. v. Hect, 95 US 170] held “As against the government the word ‘shall’ when used in statutes is to be construed as ‘may’ unless a contrary intention is manifest.”
~~Also; “The word ‘shall’ in a statute may be construed to mean ‘may’ particularly in order to avoid a constitutional doubt.” [Fort Howard Paper Co. v. Fox River Sanitary Dist., 26 NW 2nd 661]. The IRC could, but does not, use the word “required” in the body of code section 6012.

6. If filing an income tax return is not compelled by law, then paying estimated income tax must also be the same. Title 26, Subtitle f, Chapter 68, Subchapter A, Part 1, Section 6654 of the IRC states; Failure by individual to pay estimated income tax (e) Exceptions (1) Where tax is small amount (2) Where there is no tax liability for preceding year (2c) If the individual was a citizen or resident of the United States throughout the preceding year. Millions of taxpayers pay estimated income tax while their exemption is hidden deep in the IRC. ~~Withholding is also voluntary as revealed at 26CFR31.3402(p)-1(b)(2) which states: An agreement under Section 3402(p) (withholding) shall be effective for such period as the employer and employee mutually agree upon. However, either the employer or the employee may terminate the agreement prior to the end of such period by furnishing a signed written notice to the other.” Thus it is apparent that withholding income tax is also not required by law.

7. In fact, the IRS has insisted for decades that filing a return and paying income tax is based on “voluntary compliance.” In 1971 the 1040 booklet declared; “Each year American taxpayers voluntarily file their tax returns and make a special effort to pay the taxes they owe.” The Federal Register [vol.39 March 29, 1974] states; “The mission of the IRS is to encourage and achieve the highest possible degree of voluntary compliance with the tax laws and regulations.” In 1980 the 1040 booklet stated; “The primary task of the IRS is to collect taxes under a voluntary compliance system.” Webster’s Dictionary defines “voluntary” as “something done of one’s own free will, without legal obligation.”

8. One, of many, reasons why our government insists filing is voluntary is because the Fifth Amendment to our Constitution states “No person shall be compelled in any criminal case to be a witness against himself.”

9. The landmark case in relation to filing an income tax return and the Fifth Amendment is Sullivan v. U.S. [274 US 259 (1927)]. In Sullivan the defendant, Manley Sullivan, asserted he was not required to file an income tax return because it violated his privilege not to incriminate himself. In other words, he “took the Fifth”... “I respectfully decline to answer the question on the ground that the answer may tend to incriminate me.”
~~ “Taking the Fifth” is a privilege typically granted to protect a citizen who has been subpoenaed in another person’s trial. “Taking the Fifth” is fundamentally distinct from our Fifth Amendment Right...not to be compelled to be a witness against oneself (whether or not testimony may tend to incriminate). O. J. Simpson did not “take the Fifth” rather he invoked his Fifth Amendment Right and never said a single word.
~~Sullivan’s mistake (he was convicted) allowed the Supreme Court to rule that “If the form of return called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not, on that account, refuse to make any return at all.”
~~The Supreme Court’s silence in relation to our Fifth Amendment Right and the taxing structure of America (without confusing the issue with privilege) is ominous and has led to blatant incongruity and misunderstanding of the law. It is essential to understand that if a citizen files an income tax return he/she waives constitutional rights and establishes a liability that provides jurisdiction for the IRS to enforce the voluntary self-assessment.

10. Also from Boyd v. US; “It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment; a compulsory production of a private party’s books and papers, to be used against himself or his property in a criminal or penal proceeding, or for a forfeiture, is within the spirit or meaning of the Amendment.” Thus, if income tax is compulsory it would also violate the 4th Amendment.

11. The law I have allegedly violated is Section 7203 of the IRC: “Willful failure to file.” To convict me of this crime the government must prove two elements, each one beyond a reasonable doubt. First, that I am a person required by law to file a return and secondly that the failure to file was willful.

12. The Supreme Court ruled in Cheek v. U.S. [498 US 192 (1991)] that in relation to income tax “A good faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable.” The 1998 U.S. Attorney’s Bulletin 19 states; “In the seminal case of Cheek v. U.S. the Supreme Court held that a taxpayer’s ‘belief’ that he or she was not required to file a tax return, however incredible such a misunderstanding of and beliefs about the law might be, does not have to be objectively reasonable. Rather, the standard is a subjective one.”

13. While this document proves, beyond a reasonable doubt, that I am not required by law to file an income tax return, the Supreme Court [Cheek v. U.S.] has ruled, thus it is a law of this land, that I need not be legally correct to be not willful.

14. Also, in U.S. v. Bishop [412 US 346] the Supreme Court ruled that; “The requirement of an offense committed willfully is not met if a taxpayer has relied in good faith upon a prior decision of this court.” I am, in fact, relying in good faith on numerous Supreme Court decisions.

15. IRS Manual... Sec. 4.10.7.2.9.8 (05-14-1999) Importance of Court Decisions states: “Certain court cases lend more weight to a position than others. A case decided by the U.S. Supreme Court becomes the law of the land and takes precedence over decisions of lower courts. The Internal Revenue Service must follow Supreme Court decisions. For examiners Supreme Court decisions have the same weight as the Code.”
~~Nevertheless, the IRS routinely cites lower court decisions as legal proof while ignoring Supreme Court decisions. For instance and most notably the IRS routinely imposes a “frivolous” penalty if a citizen claims “income” is a corporate profit. (Frivolous: unworthy of serious attention; trivial: American Heritage® Dictionary)

16. The Supreme Court held that; “Congress cannot by any definition it may adopt conclude what “income” is, since it cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised.” [Eisner v. Macomber, 252 US 189, 206 (1920)]

17. The Supreme Court ruled that “income” signifies the following; “The word must be given the same meaning in all the income tax acts of Congress that was given it in the Corporation Excise Tax Act and what that meaning is has now become definitely settled by decisions of this court.” [Merchants Loan v. Smietanka [255 US 509 (1921)]. The Corporation Excise Tax Act defined “income” as a corporate profit. Also: “Whatever difficulty there may be about a precise scientific definition of ‘income,’ it imports something entirely distinct from principal or capital either as a subject of taxation or as a measure of the tax; conveying rather the idea of gain or increase arising from corporate activities.” [Doyle v. Mitchell Brothers Co., 247 US 179 (1918)]

18. “The definition of income as it appears in the Internal Revenue Code is based upon the 16th Amendment and that the word is used in its constitutional sense.” [House Report No. 1337; Senate Report No.1622; U.S. Code Cong. and Admin. News, 83rd Congress, 2nd Session, pages 4155 and 4802, respectively, 1954]

19. Whereas I have no “income” as defined by the Supreme Court I need not file a return (see 26 IRC 6012). Furthermore, ignoring the constitutional definition of “income” creates blatant discrepancy in the law. A corporation computes “income” tax on its profit, while an individual computes “income” tax on wages earned. There is a huge difference.

20. The IRS also imposes a “frivolous” penalty if a citizen claims income tax is an indirect tax. The Constitution permits only two classes of taxation: direct and indirect. In Brushaber v. Union Pacific [240 US 1 (1916)] the Court decreed “Taxation on income was in its nature an excise (indirect) tax entitled to be enforced as such.” (The Constitution mandates an indirect tax must be enforced uniformly: income tax is not.) Also, in Stanton v. Baltic Mining Co. [240 US 103 (1916)] we find; “The 16th Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation from being taken out of the category of indirect taxation to which it inherently belonged.”
~~The Harvard Law Review confirms; “In Brushaber Mr. Chief Justice White, upholding the income tax imposed by the Tariff Act of 1913, construed the Amendment as a declaration that an income tax is “indirect” rather than as making an exception to the rule that direct taxes must be apportioned.”(vol. 29, pages 536-8)

21. However, in the Fifth, Seventh, Eighth and Tenth Circuits, arguments that income tax is an excise tax have been rejected [see Parker v. Commissioner 724 F.2d 469, 471 (5th Cir. 1984)]. Meanwhile, in the Fourth and Sixth Circuits, income tax has been held to be an excise tax; “The tax is, of course, an excise tax, as are all taxes on income...” [see White Packing Co. v. Robertson, 89 F.2d 775, 779 (4th Cir. 1937)]; and in United States v. Gaumer [972 F.2d 723, 725 (6th Cir. 1992)] we find; “Brushaber and the Congressional Record excerpt do indeed state that for constitutional purposes, the income tax is an excise tax.”

22. In light of these directly opposing opinions the Supreme Court has ruled that I am exempt from income tax; “A citizen is exempt from taxation unless the same is imposed by clear and unequivocal language.” [Speckles Sugar Refining Co. v. McClain 192 US 397]
~~Also, I sincerely believe income tax is an indirect tax, “entitled to be enforced as such” as the Supreme Court has ruled. The imposition of a “frivolous” penalty if a citizen claims his/her constitutional rights proves that, in relation to income tax, democracy does not exist in America, while tyranny and repression does.

23. The Administrative Procedures Act mandates that all regulations and forms that require a citizen to comply with must be registered in the Federal Register. The only form 1040 that is published in the Federal Register is form 1040 NR (non-resident alien). An examination of form 83 reveals the following. For 1040 NR dated Sept.7, 1994 in line 5 “legal authority for information collected” we find cited 26 USC 6011, 6012 and 874.
~~However, for form 1040 there is submitted an entirely different form entitled “Paperwork Reduction Act Submission” This form does not cite a single legal authority under 26 USC or a regulatory authority under 26 Code of Federal Regulations (CFR). Instead there is nothing more than a Certification for Paperwork Reduction Act Submission, “on behalf of this Federal Agency, to certify that the collection of information by this request complies with 5 CFR 1320.9 which states; Agency Certifications for Proposed Collection of Information. Since form 1040 is not authorized by law I cannot be required to file one.

24. In the Index to the CFR all of the regulations that implement the enforcement provisions contained in Title 26 such as those statutes authorizing assessments, liens, levies, summonses and seizures in relation to income tax are all shown as appearing in CFR 27, i.e., the federal regulations that apply to Alcohol, Tobacco, and Firearms taxes. In fact, there is no cross-reference indicating that any of the enforcement statutes related to income taxes are implemented by regulations appearing in CFR 26... the regulations for income taxes. As none of the enforcement provisions of the IRC apply to income taxes, but only to Alcohol, Tobacco, and Firearms and to such other taxes that are implemented by the regulations contained in CFR 27... I sincerely believe I am not in violation of any law relating to income tax.

25. Whereas the index for Title 18 (the U.S. Criminal Code) lists crimes applicable to offenses involving firearms, liquor taxes and tobacco taxes...while no criminal offenses are listed for income taxes, I am not in violation of the U.S. Criminal Code.

26. Mens Rea, or “guilty mind,” is a central distinguishing feature of criminal law. Criminal liability generally requires not only causing a prohibited harm or evil... but also a particular state of mind, an act done with a bad purpose or evil intent. Therefore, it is essential to explain my intent in allegedly violating Section 7203 of the IRC. ~~In fact, during the seven years I did not file a return I published over a dozen columns in the Aspen Daily News, published a book, marched in parades and spent days on the Pitkin County Court House steps. From start to finish I have persistently documented my stance and expressed my intent to 1.Force our government to obey the law 2. Scrap our hopelessly flawed and corrupt system of taxation and 3. Institute a National Retail Sales Tax, which offers endless economic and political advantage over income tax.

27. In 1953 Dwight E. Avis, then Director of the Alcohol and Tobacco Division of the IRS, testified under oath that; “Your income tax is one hundred percent voluntary tax and your liquor tax is one hundred percent enforced tax. Now the situation is as different as night and day.” [Hearings: Internal Revenue Investigation, Committee on Ways and Means, House of Representatives, 83rd Congress, 1953.] (note, I sincerely believe Dwight E. Avis.)

28. In essence, I have discovered a pattern of deception that I cannot ignore and still keep my oath to God. As the above reveals why, as have my actions proven, I have a good faith belief that I am not required to file an income tax return and thus my failure to file is not willful.

29. Why “The People’s Court?” Because many patriots have realized the above facts, resisted tyranny, and are currently political prisoners in the American Gulag. The law, or lack of law, is more a question of communication and awareness than it is of law. For when the question is finally asked, the answer is surprisingly obvious...there is no law.
~~A relatively small percentage of citizens who have a good-faith belief in the facts quoted and documented above and are therefore also not willful can turn the tide by simply informing fellow citizens of the truth. The price of freedom is eternal vigilance. [Thomas Jefferson]