-Caveat Lector-
TAXES - ACCOUNTING - AUDITS - ESTATE PLANNING - PAYROLL
17511 North Greenbluff Road Colbert, Washington 99005
Tel (509) 238-4697 Fax (509) 238-4697
April 16, 1997
Henry E. Newman
c/o 324 Lincoln Avenue #B
El Cajon, California Republic
Dear Mr. Newman:
At your request I have researched the Internal Revenue Code (Title 26
U.S.C.)relative to an individual income tax return. I cannot tell you not
to file anincome tax return unless you have no tax liability. Each person
involved, on his/her own, must make this determination.
First let me tell you something about myself I am an Enrolled Agent.
Enrolled Agents are defined in the IRS Regulations Circular 230 as a person
who has demonstrated technical competence in interpreting and administering
the Internal Revenue Code and regulations thereunder. This person has
passed a strenuous test in all areas of taxation administered by the
Internal Revenue Service. Enrolled Agents are licensed by the Treasury
Department and must continue to show proficiency in the tax laws and
regulations with documented continuing professional education hours in order
to maintain their licenses.
There are two important issues that you need to address. What is the
subject of the tax? Where is the liability for that tax? These questions
are addressed more in detail later in this research letter. Let us look at
some statutes that might concern you. Lets start with the failure to file
return, supply information, or pay tax, as stated in section 7203 as
follows.
§ 7203, Willful failure to file return, supply information, or pay tax:
Any person required under this title to pay any estimated tax or tax, or
required by this title or by regulations made under authority thereof to
make a return, keep any records, or supply any information, who willfully
fails to pay such estimated tax or tax, make such return, keep such records,
or supply such information, at the time or times required by law or
regulations, shall, in addition to other penalties provided by law, be
guilty of a misdemeanor and, upon conviction thereof, shall be fined not
more Than $25,000 ($100,000 in the case of a corporation), or imprisoned not
more than 1 year, or both, together with the costs of prosecution, in the
case of any person with respect to who there is a failure to pay any
estimated tax, this section shall not apply to such person with respect to
such failure if there is no addition to tax under section 6654 or 6655 with
respect to such failure. In The case of a willful violation of any
provision of section 60501, the first sentence of this section shall be
applied by substituting “5 years” for “1 year”.
As you can see by the highlighted words that there are two essential
elements that must be present. First, you must be required to pay a tax, or
be liable for paying a tax. This means it is a crime only if you are a
person required by law or regulation to pay a tax, file a return or keep
such records. It is, therefore, important to determine if you are a person
“required” to perform these functions. This will be the first subject
discussed in this letter.
The government has to prove these elements in order to subject you to
punishment. They must first prove you had ‘taxable income”, that you are
“liable” for a tax, and that the “liability” made you a “required person.”
If any of these elements cannot be proven, you cannot be subject to
punishment.
Let’s first see whether or not you are a “person Liable.” To start with, I
look at the two code sections that address this issue under: Title 3,
Section 552a (e) (3) [[The Privacy Act], and title 44, Section 3504
(c)(3)(C) [[The Paperwork Reduction Act].
The Privacy Act states that the Agency requesting information must:
(3) inform each individual who it asks to supply information, on the form
which it uses to collect the information or on a separate form that can be
retained by the individual---
(A) the authority (Either granted by statute, or by executive order of the
President) which authorizes the solicitation of the information and whether
disclosure of such information is mandatory or voluntary;
(B) the principal purpose for which the information is intended to be
used;
(C) the routine uses which may be made of the information, as published
pursuant to paragraph (4)(D) of the subsection; and
(D) the effects on him, if any, if not providing all or any part of the
requested information....
The Paperwork Reduction Act states that the Director of the Office of
Management and Budget must include with his/her information request:
“a statement to inform the person reviewing the request why the information
is being collected, how it is to be used, and whether responses to the
request are voluntary, required to obtain a benefit, or mandatory...”
Now, here we have two statutes directing the government to tell us whether
giving the IRS an income tax return is voluntary or mandatory. The IRS
responds to the directives of the Privacy Act and paperwork Reduction Act
Notice with the following statement:
“Our legal right to ask for information is Internal Revenue Code section
6001, 6011 and 6012(a) and their regulations. They say that you must file a
return or statement with us for any tax you are liable for. Your response is
mandatory under these sections.”
I have to point out to you that the IRS again used the word “liable for”.
Now, let’s look at the Internal Revenue Code to see what it has to say.
The two sections 6001 and 6011 follow as written the code of 1994.
§ 6001, Notice or regulations requiring records, statements, and special
returns
Every person liable for any tax imposed by this title, or for the collection
thereof, shall keep such records, render such statements, make such returns,
and comply with such roles and regulations as the Secretary may from time to
time prescribe. Whenever in the judgment of the Secretary it is necessary,
he may require any person, by notice served upon such person or by
regulations, to make such returns, render such statements, or keep such
records, as the Secretary deems sufficient to show whether or not such
person is liable for tax under this title. The only records which an
employer shall be required to keep under this section in connection with
charged tips shall be charge receipts, records necessary to comply with
section 6053(c), and copies of statements furnished by employees under
section 6053(a).
§6011. General requirement of return, statement, or list
(a) General rule--When required by regulation prescribed by the Secretary
any person made liable for any tax imposed by this title, or with respect to
the collection thereof, shall make a return or statement according to the
forms and regulations prescribed by the Secretary. Every person required to
make a return or statement shall include therein the information required by
such forms or regulations.
In these two sections we are instructed to file a return or statement for
any tax we are liable for. Indeed, section 6001 refers to “Every person
liable for any tax imposed by [The Internal Revenue Code]...” and section
6011 refers to “...any person made liable for any tax imposed by [the
Internal Revenue Code]...” But, as you can see, nowhere in either of these
two sections are we told who is liable for, in this case, the income tax.
The government has in effect, told us that a response is mandatory if we are
liable for the tax, but neglected to tell us whether or not we are liable
for the tax. The government has been very explicit in telling us that a
response, either a return or statement, is mandatory for any tax that we are
liable for; however, the government has remained silent in telling us who
is liable for the tax. Thus, even after reading the government’s official
notices under the Privacy Act and paperwork Reduction Act, we still do no
know if an income tax return is required of us. In my opinion, by
maintaining silence on this central issue, the government has not complied
with either the spirit or the letter of the law of the two Acts. This
opinion is shared by courts as well:
“Silence’ is species of conduct, and constitutes an implied representation
of the existence of facts in question... When silence is of such character
and under such circumstances that it would become a fraud...it will operate
as an estoppel.” [Carmine v. Bowen, 64 AT.932]
Since the government has not told you whether you are required to file an
income tax return, you have asked me to research this matter. Since you
must be a “person liable” to be a “person required”, lets address this
issue.
The right to tax comes from the Untied States Constitution, the supreme law
of the land, which authorizes the federal government to impose two broad
categories of taxes: direct taxes under Article I, Section 2 and Article I,
Section 9, and indirect taxes under Article I, Section 8. Direct taxes are
required to be apportioned among the states, while indirect taxes must be
uniform throughout the United States.
Briefly, a direct tax is a tax on an ownership interest which the owner
cannot pass on, while an indirect tax is on an event where the transaction
and the impact of the tax can be passed on, in whole or in part, to others.
In order for a tax to fall into the indirect tax category the individual
liable for the tax cannot be the ultimate, final consumer. This is so since
the one paying the tax can then add it on to the price of the thing being
taxed and recover it (pass it on) when it is sold. The ultimate, final
consumer would have no way to recover (pass on) the tax, so any tax which
the ultimate, final consumer is liable for would be a direct tax based on an
ownership interest.
“The Sixteenth Amendment does not extend the power of taxation to new or
excepted subjects” [Pack v. Lowe, 247 U.S. 165]
“The Sixteenth Amendment conferred no new power of taxation” [Stanton V.
Baltic Mining Co., 240 US.103,at 112].
“The individual unlike the corporation, cannot be taxed for the mere
privilege of existing., The corporation is an artificial entity which owes
its existence in charter powers to the State, but the individual’s right to
live and own property are natural Rights for which an excise cannot be
imposed.” [Redfield v fisher, 292 P.813, at 819].
“Neither can the tax be sustained on the [natural] person, measured by
income. Such a tax would be, by nature, a capitation rather than an
excise.” [Peckv Lowe, 247 US. 165.] [emphasis added]
“Income has been taken to mean the same thing as used in the Corporate
excise Tax of 1909 (36 Stat.112). The individual worker does not receive a
profit or gain from his/her labors - merely an equal exchange of funds for
services.” [Brushaber v. Union Pacific R R US. 1, 17, 36S.CT.236,24t].
“The taxpayer must be liable for the tax. Tax liability is a condition
precedent to the demand. Merely demanding payment, even repeatedly, does
not cause liability” {Bothke v. Terry, 713 F. 2d 1405, at 1414 (1983)].
“The Treasury Department cannot, by interpretive regulations, make income of
that which is not income within the meaning of the revenue acts of Congress,
nor can Congress, without apportionment, tax as income that which is not
income within the meaning of the Sixteenth Amendment.” {Helvering v. Edison
Bros. Stores, 133 F.2d 575].
Also, please note the voluntary nature of Social Security or the use of the
W-4? The only place in the code that addresses the Social Security issue is
in Title 26 U.S.C. subtitle C, chapter 21 (Social Security Tax Act) of the
Internal Revenue Code starting in subchapter A. Subtitle C includes sections
3101 through 3510 of Title 26 U.S.C..
The first issue is whether subtitle C is relative / jurisdictional to you.
To make this determination please note in Subtitle C at subchapter c, §3121,
which has specific definitions which relate to Social Security. In this
jurisdictional section at 3121(e) State, United States and citizens reads as
follows:
3121. Definitions...
(e) State, United States, and Citizen
For purposes of this chapter-
(1) State
The term ’State” includes the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Island, Guam, and American Samoa.
(2) United States
The term “United States” when used in a geographical sense include the
commonwealth of Puerto Rico, the Virgin Island, Guam, and American Samoa.
An individual who is a citizen of the Commonwealth of Puerto Rico (but not
otherwise a citizen of the United States) shall be considered, for purposes
of this section, as a citizen of the United States.
The jurisdiction in this section is very specific as you can see. Because
there is no section that makes it mandatory in the 50 Union States it must
be voluntary for citizens in these States.
To better understand these provisions, and the different jurisdictions, you
have to understand that Congress creates laws for TWO distinct and separate
jurisdictions:
1) Washington DC, enclaves in the 50 states (i.e.: land that has been ceded
by the State to the federal government), and the territories and
possessions, such as Puerto Rico, Virgin Island, Guam, etc.
2) The 50 states.
The principal difference in the jurisdictions is that the Constitution of
the United States of America has to be strictly adhered to in making laws
that affect the 50 states. However, in Washington, D. C., enclaves and
territories, Congress has EXCLUSIVE jurisdiction, which means they can make
any law they want to; the Constitution is not considered. (Article 1,
Section 8 US Const). See also CAHA v U.S. 152 U.S. 211:
The laws of Congress in respect to those matters (outside of
Constitutionally delegated powers) do not extend into the territorial limits
of the states, but have force only in the District of Columbia, and other
places that are within the exclusive jurisdiction of the national
government.”
DOWNES v.BIDWELL, 182 U.S. 244 is also very explicit:
“Constitutional restrictions and limitations were not applicable to the area
of lands, enclaves, territories and possessions over which Congress had
exclusive legislative authority.”
The Supreme Court has ruled consistently on this issue ever since America’s
inception. In fact, the latest case was U.S. v. LOPEZ, 115 5. CT.1624
(1995).
The Court ruled a law applicable in Washington, D. C. was not applicable
in San Antonio, Texas, because it did not conform to Constitutional
restrictions.
Since an income tax is a tax on income created by a transaction which is
(and must be) directly associated with, or effectively connected with, some
particular type of revenue-taxable “privileged” activity [ i.e. alcohol,
firearms, tobacco, or other privileged activity or excise], the Internal
Revenue Code and its implementing and controlling federal regulations must
specify the particular type or kind of tax arising from a revenue-taxable,
privileged activity that makes one a “person liable” or “made liable”. For
example, Internal Revenue Code Section 5005 establishes that liability for
the tax on distilled spirits is placed on the distiller or the importer.
Section 5043 places the liability for the tax from wine, on the proprietor
of the bonded wine cellar or on the importer. Section 5703 places the
liability for the tax on cigars and cigarettes on the manufacturer or
importer. Also to be classified as an indirect tax, the individual liable
for the tax must not be the ultimate, final consumer.
In support of this, look at some closely related taxes. Section 2502(c)
establishes liability for the gift tax on the donor, the one giving the
gift, not the donee, the one receiving the gift.
Section 2002 establishes liability for the estate tax on the executioner,
not on the inheritors receiving the property. “Section 2002, liability for
payment. The tax imposed by this chapter shall be paid by the executor.”
Since you must be liable for an income tax on your own income, neither
section 6001 nor 6011 require you to file an income tax return. However, I
want to continue and discuss 6012, which is the section many believe require
income tax returns be filed.
§ 6012, Persons required to make returns of income
(a) General rule -- Returns with respect to income taxes under subtitle A
shall be made by the following:
(1)(A) Every individual having for the taxable year gross income which
equals or exceeds the exemption amount, except that a return shall not be
required of an individual--
(I) who is not mauled (determined by applying section 7703), is not a
surviving spouse (as defined in section 2(a)), is not a head of a household
(as defined in section 2 (b)), and for the taxable year has gross income of
less than the sum of the exemption amount plus the basic standard deduction
applicable to such an individual,
(ii) Who is a head of a household (as a defined) and for the taxable year
has gross income of less than the sum of the exemption amount plus the basic
standard deduction applicable to such an individual,
(iii) who is a surviving spouse (as so defined) and for the taxable year has
gross income of less than the sum of the exemption amount plus the basic
standard deduction applicable to such an individual, or
(iv) Who is entitled to make a joint return and whose gross income, when
combined with the gross income of this spouse, is, for the taxable year,
less than the sum of twice the exemption amount plus the basic standard
deduction applicable to a joint return, but only if such individual and his
spouse, at the close of the taxable year, had the same household as their
home.
To determine who must make returns lets see what type of taxes can be
assessed, by whom and for what classification of tax. For this we must go
to Section 6201 Assessment Authority, which reads as follows:
§ 6201. Assessment Authority
(a) Authority of Secretary
The Secretary is authorized and required to make the inquiries,
determinations, and assessments of all taxes (including interest, additional
amounts, additions to the tax, and assessable penalties) imposed by this
title, or accruing under any former internal revenue law, which have not
been duty paid by stamp at the time and in the manner provided by law.
Such authority shall extend to and include the following:
(1) Taxes Shown On Return
The Secretary shall assess all taxes determined by the taxpayer or by the
Secretary as to which returns or lists are made under this title.
(2) Unpaid Taxes Payable By Stamp...
TITLE 26 U.S.C. § 6201 gives the secretary the authority to assess taxes
not duly paid by stamp or by the individual who has assessed himself, i.e.:
voluntary tax. Stamp taxes are associated with subtitle E of the Internal
Revenue Code Title 26 or Title 27. i.e.: Alcohol, Tobacco and Firearms.
Here, again, you have to determine what activity you are involved in and
does this activity pay taxes by stamp.
The First Amendment of the Constitution of the United States protects the
freedom of speech and of the press. The freedom to speak, you must
understand, also involves the freedom not to speak. If you do not have the
right not to speak, (i.e.-- if the government could compel you to speak)
then you have no freedom of speech. Since this right extends to printed and
written materials, you have a First Amendment Right not to fill out
government forms and not to give the government information.
The Fourth Amendment of the Constitution of the United States protects your
privacy. You have a Fourth Amendment Right to keep your personal financial
affairs private, and not to voluntarily give that information to the
government. The Fourth Amendment provides that if the government wants to
examine your books and records, a court order must be obtained. The mailing
of a tax form along with instructions on how to complete it is not, for
Fourth Amendment purposes, a valid order compelling a response.
The Fifth Amendment of the Constitution of the United States protects you
as well, stating;
“No person shall ... be compelled in any criminal case to be a witness
against himself”
The fifth amendment seems to apply only to criminal matters, but the Supreme
Court ruled in McCarthy v. Arndstein, 266 US. 34, that the fifth amendment
“applies alike to criminal and civil proceedings.” Similar rulings have
stated;
“There can be no question that one who files a return under oath is a
witness within the meaning of the Amendment.”
[Sullivan v. United States, 15 F. 2Nd 809],
and
“The information revealed in the preparation and filing of an income tax
return is, for Fifth Amendment analysis. “The testimony of a “witness” as
that term issued herein.” [Garner v. United States, 424 US. 648].
Since you can’t be compelled to be a witness against yourself, and since
the Supreme Court has twice held that the filing of an income tax return is
an act of being a witness against one’s self, it follows that any statute
compelling the filing of an income tax return would violate the protections
of the Fifth Amendment.
The effect of the government’s actions has been noted by the Supreme Court:
“Because of what appears to be a lawful command on the surface, many
citizens, because of their respect for what only appears to be law, are
cunningly coerced into waving their rights due to ignorance.”
[U.S. v. Minker, 350 US.179, at 187].
Section 6012, moreover, specifies a condition that must be met before the
income tax return “shall be made”. The individual has to have “for the
taxable year a gross income of the exemption amount or more”. Based on the
following code sections, I will show you where no individual has any item of
gross income that is includable:
First, look at the definition of “taxable year”.
§ 7701. Definitions.
(a) When used in this title, where not otherwise distinctly expressed or
manifestly incompatible with the intent thereof--...
(23) Taxable year. -- The term “Taxable year” means the calendar year, or
the fiscal year ending during such calendar year, upon the basis of which
the taxable income is computed under subtitle A. “Taxable year” means, in
the case of a return made for a fractional part of a year under the
provisions of subtitle A or under regulations prescribed by the Secretary,
the period for which such return is made. (Section 441 (b) also defines
Taxable year: For purposes of this subtitle, the term “taxable year”
means -- (1) “the taxpayer’s annual accounting period”).
The definition of “taxable year” is important since the law requires that
taxable income is to be computed on the basis of a taxable year:
“Section 441 (a) COMPUTATION OF TAXABLE INCOME--- Taxable income shall be
computed on the basis of the taxpayer’s taxable year.”
Now let’s look at the definition of “taxpayer’ and ‘person”:
§ 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.
[Which is only an artificial, not a natural, person / human being.]
(14) TAXPAYER-- The term “taxpayer” means any person subject to any internal
revenue tax.
So, by substituting the term “person subject to any internal revenue tax”
for the term “taxpayer” in section 441 (a), the section requires the tax to
be computed on the basis of the taxable year of the person subject to the
income tax, Using the same substitutions as above, you find:
§ 451.
(a) General rule. -- The amount of any item of gross income shall be
included in the gross income for the taxable year in which received by the
taxpayer, unless, under the method of accounting used in computing taxable
income, such amount is to be properly accounted for as of a different
period.
The point is this: Taxable income is required to be computed on the basis
of the taxable year of the person subject to the income tax, II the person
does not have a liability, he cannot have a taxable year in which any amount
can be included,
Based on all the above, it is my professional opinion, supported by the
Court in U.S. v Flora, 362 US, 145. At 176, that the filing of an individual
income tax return is voluntary Quoting the Court:
“Our system of taxation is based on voluntary assessment and payment, not
upon distraint.” [U.S. v Flora, id.]
Also, by testimony of Mr. Avis before Congressional subcommittee hearings
on the Internal Revenue Investigation: “Your income tax is 100 percent
voluntary tax, and your liquor tax is 100 percent enforced tax. Now, the
situation is as different as night and day.” (Exhibit A)
You may be asking yourself why is it that so many people file tax returns
each year? Let me give you a statement by Adolph Hitler, “If you tell or
report a lie often enough and long enough people will eventually believe
it.”
This is what has happened to the people of the United States of America.
Every year the IRS sends millions of forms to people, along with
instructions, on how to fill them out. The people do not question the form
nor do they determine if there is a liability, but just fill in the lines
and send them back with whatever money the form requires. No one ever asks
what law requires them to fill out this form and does it apply to them.
Futhermore, the Privacy Act Notice says that the government must tell you
the effects, if any, if not filing the return. Until 1981, the Privacy Act
Notice read as follows: “If a return is not filed, or if we don’t receive
the information we ask for, the law provides that a penalty may be charged
(the “penalty” be a penalty for filing and paying the tax late). Since 1982
the Privacy Act Notice has been revised reading: “If you do not file a
return, do not provide the information we ask for, or provide fraudulent
information, the law provides that you may be charged penalties and, in
certain cases, you may be subject to criminal prosecution. “ No mention was
made in the previous Privacy Act Notice since it only referred to not filing
a return or providing information. Added to the privacy Act Notice in 1982
was a caution about “fraudulent Information” and “in certain cases, you may
be subject to criminal prosecution”. Since it is true that filing a false
or fraudulent return is a crime under Code sections 7206 and 7207, the
“certain cases” referred to in the later Privacy Act Notice are undoubtedly
cases where a false or fraudulent return has been filed; however, the
privacy Act Notice still has not told us that not filing a return is a
punishable offense.
If you remember, at the outset of this letter I said that in order for the
government to punish you for not filing an income tax return, certain
elements must be present; they must first prove you had “taxable income”;
then, they must prove that income made you “liable” for a tax; next, they
must prove that “liability” made you a “required person”, and lastly, that
you failed to file a “required return”, and if any one of these elements
cannot be proven, you cannot be subject to punishment. The word ‘willfully”
, when used in a criminal statute, means an act done with a bad purpose.
Felton v United States, 96 US.699: Potter v United States, 155 US 438: Spurr
v United States, 174 US. 728, or without justifiable excuse. Felton v
United States, supra; Williams v People, 26 Colo. 272, 57P.701: People v .
Jewell, 138 Mich. 620, 101 NW 835; St. Louis I. M. & S Ry. Co. V Batesville
& W. Tel Co., 80 Ark. 499, 97 SW 660; Clay v. State, 52 Tex. Cr. 555, 107
8W 1129;
or Stubbornly, obstinate, perversely, Wales v. Miner, 89 lad. 118, at 127;
Lynch v. Commonwealth, 131 Va. 762; 109 SE. 427; Claus v. Chicago Gt. W. Ry.
Co., 136 Iowa 7, 111 N.W. 15; State v. Harwell, 129 N. C. 550; 40 S.E. 48.
The word is also employed to characterize a thing done without grounds for
believing it is lawful: Roby v. Newton, 121 Ga. 679, 49 S.E. 694, or
conduct marked by a careless disregard whether or not one has the right so
to act. United States v. Philadelphia & R. Ry Co., 223 Fed. 207, at 210;
State V. Savra. 129 Iowa 122; 105 N.W. 387; State v. Morgan, 136 N.C. 628,
48 S. F. 670.
Thus, since the government’s Privacy Act Notice and Paperwork Reduction Act
Notice do not meet its intended purpose and does not specifically say the
filing an income tax return is required, the courts have recognized that the
work “willfully” in these statutes generally connotes a voluntary
intentional violation of a known legal duty.
[U.S.v. Bishop, 412 US. 346.]
The Supreme Court has ruled as recently as January 8, 1991, that a belief
that one is not required to file an income tax return, based upon
professional advice, precludes the “willfulness” requirement [Cheek v.
U.S., 498 US. 192, at 207 (1991)]
To sum up, the government must prove that you have a liability and they
must disprove y our claim that you believed filing an income tax return was
not required or is voluntary and instead prove that you intentionally did
not file one. This is a decision that you have to make on your own. If
you have a tax liability you will have to file a return.
With all the facts and evidence presented herein. You should have no
problem defending yourself should the government try to criminally prosecute
you for not filing an income tax return if you have no liability.
I sincerely hope that all points have been clarified. If any additional
questions arise please do not hesitate to write me again.
Sincerely,
John J. Schlabach, Enrolled Agent
Enrollment # 50614
(ed. Note: Mr. Schlabach will provide you with a personalized copy of your
own for $50. You can contact him at the address and number shown at the top
of this letter.)
This letter retyped to e-mail to all we know.
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