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Title: Westminster man told to stop running tax scheme
Source:
Baltimore Sun
URL Source: http://www.baltimoresun.com/news/lo ... story?coll=bal-local-headlines
Published: Dec 4, 2006
Author: AP
Post Date: 2006-12-04 18:32:27 by Starwind
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Keywords: Kotmair, Save-A-Patriot Fellowship
Views: 3131
Comments: 200
A Westminster man has been barred by a federal judge from running a scheme in which he promised to help members avoid paying federal taxes, the U.S. Department of Justice announced today. The "Save-A-Patriot Fellowship" run by John Baptist Kotmair Jr. falsely advised that clients didn't have to pay taxes and could legally withdraw from the Social Security system, U.S. District Judge William Nickerson said in his ruling. Despite legal action by the U.S. Justice Department, Kotmair's organization continued to file frivolous protest letters with the Internal Revenue Service on behalf of more than 800 clients and showed "no inclination ... to cease their activities," Nickerson noted. Nickerson's order, issued last week, permanently bars Kotmair and his organization from representing or assisting anyone in corresponding with the IRS, or preparing court filings relating to income taxes. Kotmair and his organization must also notify all individuals involved in the scheme of the injunction and provide the Justice Department with the names of the customers, their e-mail addresses and telephone and Social Security numbers. The injunction also must be posted prominently on the organization's Web sites for a year, and fraudulent promotional materials must be removed from the sites.
Poster Comment: Kotmair's defense and taxation arguments were inane to put it charitably. His website (where he's to post the injunction) is at http://save-a-patriot.org/ Stupid tax-protestors and their schemes just muddy the water for legitimate tax-protest arguments. Kotmair, Schiff, Schultz, Rose all will become boilerplate examples of tax schemes which will be used unfairly to broad-brush and defeat otherwise legitimate arguments, rasing the cost and complexity to properly take on the IRS. I cite Joe Banister as an example of how to do it right, intelligently, and the above tax schemes just make it difficult if not impossible for people like Banister to prevail honestly on the merits.
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#98. To: noone222 (#84)
Benson's work seems to show that the 16th never was ratified, but the courts have declared the matter out of their jurisdiction. But I'm not so sure they are wrong about that, at least 70 plus years after the fact and after everyone involved has died. It really should have been cought and challenged at the time of course. Founders never considered the possibility that this might happen.
I'm of the opinion that the framers did the best job they could to guard against a slave system. They gave us the basis for taxation that would support a relatively small government, adequate (Army/Navy), and even allowed a couple of years for oppressive taxes under war conditions. There's no way they would accept what D.C. is extorting today through weasel worded legaleze. Actually, it's simple to see that they intended for the tax to be somewhat voluntary. Those wishing to partake in certain activities or purchasing certain taxable items had the choice whether they wished to participate and therein obligate themselves to the tax.
"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. When you give up that force, you are ruined." Patrick Henry
That's not what the SC said it did. The SC said the 16th merely qualified the income tax as an indirect tax. They were quite plain about that. It did not broaden any authority whatsoever, as it conferred no new powers of taxation. The SC declared that it merely ensured that income taxation was to always be considered an indirect tax and weighed as such with the rule of uniformity, and never to be weighed as a direct tax as a tax upon property requiring apportionment. Again, the SC was plain about this. One might well consider the 16th amendment in a vacume and make this observation. Indeed were I to do so I'd conclude the same thing. However, the 16th amendment is not the only Constitutional provision to discuss taxation, and therein lies the trap you fall into. The 16th *must* be taken in context with the rest of the Constitution which prescribes that direct taxes must be apportioned, and indirect must be uniform, and it's on that basis that the SC declared that the 16th clarified the income tax falling into the indirect class and did not confer any new taxation powers, did not create an exception to the direct tax requirement, and did not create a new 3rd tax classification beyond direct and indirect. I'm not making this up, Star. That's what they said. I guess the same part the USSC didn't get in Brushaber & Flint. If you want to declare those decisions overturned or wrong, you are free to take that position.
Ok, then, please cite the specific ruling wherein SCOTUS so states. I'd appreciate both the case, and a direct quote on which I can search. Again, please cite the specific ruling wherein SCOTUS so states. I'd appreciate both the case, and a direct quote on which I can search. And again, if you would please cite the specific ruling wherein SCOTUS so states. I'd appreciate both the case, and a direct quote on which I can search.
(The Gospel of Jesus Christ is the only true good news)
Apparently a portion of Pollock was held to be overturned in this decision, but not the entire decision, so there would indeed be something left, as you challenged. You chose your words carefully. The Pollock decision involved two complaints as follows: In the Carolina decision, you highlighted But the full sentence continues thus: Therefore, this decision in 1988, 93 years after the Pollock decision, only overturned, or stated more precisely, confirmed that "subsequent case law" had overturned, the latter portion of the case, not the matter related to taxation of real estate property as a direct tax without apportionment, which is the heart of the matter being discussed. Do you claim otherwise?
As I said, some are charged with violating penalty statutes, one of which you posted. It is not possible to violate a law that prescribes a penalty. Or it is, actually, *IF* you are a judge sitting on a bench and dispense a penalty in excess of that allowed in the statute. That would constitute a violation of a penalty statute, and a judge is the only person who could possibly violate section 26 USC 7201. To accuse someone of evasion of taxes and claim that he violated this section which provides the penalty for violation is corruption. In order to be properly penalized with 7201, the state must show the citation of the tax referred to in "tax imposed by this title or the payment thereof", but they do not. They instead just claim that he violated 7201, likely because, one could only surmise, they cannot point to the statute that was violated in the IRC with respect to income taxes. Your posting of the evasion penalty statute is completely disingenuous to the point I made previously.
.... duh..... I said "mutate" which is different from "amend". Some contend it's meaning can change over time absent amendment hense the "living document" doctrine. But that doctrine basically means that the Constitution has no effective substance or weight.... which seems to be your argument. This claim has already been addressed in my posts above. I won't rehash.
I don't think it's ever been defined by statute. "Gross Income" is as close as it gets. I think the 39 code, section 22, if memory serves, is the ancestor to section 61. ....if that's the part of the ITA your refer to.
No one in their right mind could blame them for not doing better. What did they have to work with? Very little outside of academic books and their own experience in what did NOT work. Being familiar with the heavy hand of their version of King George, they clearly prided themselves in developing a system that preserves freedom, whereas today's politicians pride themselves in wielding power and reaching into the lives of every citizen. I think where they failed was in giving due consideration to the judiciary. They spent all their time on the Legislature. No army. Only the navy. States provided the armies. Somehow the phrase "no way they would accept" doesn't embody the full, complete and utter outraged contempt I would expect from them for what goes on today. Can you imagine, at the 1787 convention, the reception that would have greeted the idea of a federal tax of each person's wages, particularly to the point where each was expected to make detailed reports of their earnings to the monstrosity? And some people today champion it as very American (going well beyond believing it a necessary evil).
I think all three of my statements are adequetly supported by the Brushaber and Stanton cases which Nolu already posted in #77 above which I'm copying here. And here's Brushaber, also copied for my own convenience sake from Nolu's #77 Ok, I'll try to step us thru this: Your post #100 took exception with my post #85 and your followup post #107 cited Brushaber and Stanton as the SC rulings in support of your exception to my post#85, to wit: Obviously, Pollock ruled that taxes on income from property (rents, real estate) was in reality an unapportioned direct tax and therefor unconstitutional, whereas the 16th amendment specifically removes taxes on income from any source from the apportionment requirement regardless of being construed direct, or indirect. That's not what the SC said it did. The SC said the 16th merely qualified the income tax as an indirect tax. They were quite plain about that. I think all three of my statements are adequetly supported by the Brushaber and Stanton cases What I said was: the 16th amendment specifically removes taxes on income from any source from the apportionment requirement regardless of being construed direct, or indirect. I said the 16th amendment prevents income taxes from being subject to the apportionment requirement, regardless of being construed direct or indirect. I did not say or imply the 16th amendment moved income taxes from indirect to direct. Moreover, your statement (underline mine): 16th merely qualified the income tax as an indirect tax. is not entirely correct since obviously the purpose of the 16th Amendment as affirmed by both Brushaber and then Stanton was to prevent income taxes (whether sourced from direct ownership or from indirect events/usage) from being subject to the apportionment criteria The 16th Amendment did not merely "qualified the income tax as an indirect tax", it further changed income taxes from being subjected to the apportionment test regardless of their source. Perhaps these are distinctions without a difference, but I don't see that my statement was in error, or that your stated exception to it was entirely correct. You also excerpted the 2nd sentance from my paragraph, and then took exception to that excerpt: It did not broaden any authority whatsoever, as it conferred no new powers of taxation. The SC declared that it merely ensured that income taxation was to always be considered an indirect tax and weighed as such with the rule of uniformity, and never to be weighed as a direct tax as a tax upon property requiring apportionment. Again, the SC was plain about this. Obviously the "authority" to which I referred and to which you excepted refers to the prior sentance wherein I alluded to congress' authority to levy taxes provided they were direct and apportioned or indirect and uniform. My second sentance then said that authority was broadened to remove the apportionment test on income from any source. I will agree the 16th Amendment did not confer "new powers of taxation" as SCOTUS had by then already recognized (as per Brushaber): That the authority conferred upon Congress by 8 of article 1 'to lay and collect taxes, duties, imposts and excises' is exhaustive and embraces every conceivable power of taxation has never been questioned, or, if it has, has been so often authoritatively declared as to render it necessary only to state the doctrine. And it has also never been questioned from the foundation, without stopping presently to determine under which of the separate headings the power was properly to be classed, that there was authority given, as the part was included in the whole, to lay and collect income taxes. But the amendment clearly and indisputably broadened Congress' existing authority to remove the apportionment test on income from any source: This is the text of the Amendment: 'The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.' It is clear on the face of this text that it does not purport to confer power to levy income taxes in a generic sense,-an authority already possessed and never questioned, -or to limit and distinguish between one kind of income taxes and another, but that the whole purpose of the Amendment was to relieve all income taxes when imposed from apportionment from a consideration of the source whence the income was derived. I didn't say the 16th Amendment gave congress new taxation authority, but only the authority to broaden income taxation by removing the apportionment test. Much of this is the aftermath and debris of your arguing that the 16th Amendment did not overrule Pollock, which position you repeat in the following exchange: [...] That decision was overruled by the adoption of the SIXTEENTH AMENDMENT, which expressly permits Contress to tax incomes without apportionment. The author gave no evidence or support for this claim. The author presumed his readership would in fact compare the language of the 16th amendment text against the opinion in Pollock (granted, a lot to presume these days). A review of Brushaber and Stanton rulings (already cited above) reinforces the caselaw viewpoint that the 16th amendment overruled Pollock. It [16th Amendment] does not authorize anything. Remember it does not confer any new powers of taxation, but merely confines the power to tax income, which it always had, to the indirect class. Oh please Neil, which part of "The Congress shall have power" ... " to tax incomes, from whatever source" ... "without apportionment ... census or enumeration" do you not get? That is precisely the tax- protestor mindset that keeps shooting itself (and the rest of us) in the foot. In the above exchange you persist in arguing (your statements in italics) that somehow the author had to support or give evidence that the 16th Amendment expressly permits Congress to tax incomes without apportionment, which the language clearly does, and which SCOTUS affirmed in both Brushaber and Stanton. You said the 16th Amendment does not authorize anything (it obviously does authorize levying income taxes without regard to source and without applying the apportionment test) and that the 16th Amendment merely confines the power to tax income, which it always had, to the indirect class flies in the face of your argument that Pollock was not overruled by the 16th! If Pollock were not overruled by the16th Amendment, income taxes would be unconstitutional unapportioned direct taxes. Lastly, your 3rd exception (which you assert is supported by both Brushaber and Stanton) was: The 16th *must* be taken in context with the rest of the Constitution which prescribes that direct taxes must be apportioned, and indirect must be uniform, and it's on that basis that the SC declared that the 16th clarified the income tax falling into the indirect class and did not confer any new taxation powers, did not create an exception to the direct tax requirement, and did not create a new 3rd tax classification beyond direct and indirect. I'm not making this up, Star. That's what they said. You can't argue this both ways. You can't argue Pollock was not overruled by the 16th and simultaneously argue the 16th merely confines the power to tax income, which it always had, to the indirect class. One of these things is not the same. Ergo, the 16th conferred no new tax powers, did not broaden any taxing authority, only classified the income tax as always to be a indirect tax, and did not create any new class of taxation. I believe this covers all the points I made that you wanted SC support for. Well, that wasn't your entire argument. You seem to overlook the specifics of the language of the 16th Amendment, insofar as you invaribly decline to acknowledge that it removed the apportionment tests on income taxes regardless of their source and it doesn't specifically place income taxes into either direct or indirect classes. It is silent on the issue of in which class an income tax may be. And I've yet to see you acknowledge that Pollock was overruled by the16th Amendment. Do you agree the 16th amendment removed the requirement to test income taxes, regardless of source, by apportionment? Do you agree the 16th amendment overrulled Pollock?, If not, what provisions of Pollock are still in effect and as of what date?
(The Gospel of Jesus Christ is the only true good news)
Thanks for composing this. I think part of our difference might be just implied assumptions about verbage used, but not all. I believe I understood your statement here correctly but disagree anyway. When you say "prevents income taxes from being subject to the apportionment requirement" I take issue because it implies that there are no requirements whatsoever. The rule of uniformity has requirements/restrictions of its own. So for me it's important to be clear that the income tax is an indirect tax. True, apportionment is not a needed factor in ensuring an income tax is constitutional, but that's because income taxes are not direct taxes. It seems you've stated a belief that the 16th simply removed the apportionment requirement, but I don't think that's a correct statement. In qualifying the income tax as indirect, which the SC did, apportionment is no longer a consideration. Maybe this is semantics to you? Well, prior to the 16th, there was uncertainty whether the income tax was a direct or indirect tax. So when you say it "changed the income taxes from being sujected to the apportionment test", I think this is automatic with it being classed as indirect. But your implication, if I'm understanding you right, that it removed the apportionment requirement without replacing it with requirements that apply to all indirect taxes (i.e. uniformity) is in error. As an indirect tax, the income tax cannot be imposed on property as tax on property is characteristic of a direct tax. But what you're saying, or maybe strongly implying here, is that whereas before, the income tax as an unapportioned direct tax was unconstitutional, the 16th made the same thing constitutional. I believe that is wrong because the effect of the 16th was to force all income taxes to be construed as indirect taxes. An analogy might be all foods falling into one of two classes of perishable and nonperishable, and all perishable food must be kept in the frig, and non-perishable must be kept in the pantry. And there might be confusion as to whether, say, a poundcake falls into the perishable or nonperishable class, and therefore, whether it should be kept in the frig or pantry (we can do a christmas analogy, right?). Along comes the 16th declaring that congress shall have the power to store pound cakes without refrigeration. The SC considers the amendment in light of the current kitchen rules (constitution) and finds that the effect of the 16th is that all poundcakes are always to be considered non-perishable, and therefore subject to all the food storage/handling rules applicable to nonperishable foods. Carrying over your statement about income taxes no longer being subject to apportionment to this analogy would be a statement that pound cakes no longer need to be stored in the frig. But I take issue with that because as stated, it implies that pound cakes are both perishable and yet don't have to be stored/handled as a non-perishable food, which would make it a unique 3rd class of food. (Which as a holiday aside, many may argue about pound cakes). I mean, of course it doesn't go in the frig. In fact it's no longer permitted there since it's non-perishable. For me, the proper thing to say, in light of the Brushaber/Stanton decisions, is that pound cakes are non-perishable, and as such, are necessarily burdened with all the restrictions (and benefits) of nonperishable foods. With non-perishables, we no longer even talk about the frig. With the income tax, because of the 16th, we no longer talk about apportionment. (Watch for my upcoming book: Your Christmas Season Guide to Income Taxes"). You obviously recognize indirect taxes as subject to the rule of uniformity as you've stated plainly. Do you recognize that income taxes are indirect? Well, my understanding is that it acheived this end by being categorized as an indirect tax, not by simply removing the apportionment requirement, as that would have made no statement about whether the income tax is direct or indirect, and Staton in particular made clear that income taxes were indirect. And I think it should be recognized that "broadening authority" of a tax by removing a test would certainly be conferring additional taxing power, which the SC said the 16th did not do. I don't see how. Unless it overruled it in the sense that, whereas Pollock construed the tax before them as direct being imposed without apportionment and therefore unconstitutional, in light of the 16th the tax should have been considered as indirect and therefore constitutional. I don't have a problem with that, so long as it's not construed as overruling the notion that direct taxes must be apportioned. I believe they must have been then and still must be today. But it would have made a difference in 1895 how that tax was imposed and applied due to restrictions on indirect taxes. I think the point of contention has been addressed above in this post. Let me know otherwise. By "not authorize anything" I was echoing the SC ruling that it "conferred no new powers of taxation". I'm aware of what the plain reading of the 16th implies, but it's meaning cannot be taken in isolation apart from the taxing provisions in the Constitution. The Brushabor/Stanton decisions did this, resulting in the "conferred no new powers" finding. Okay, then my statement above may well be where we can find agreement. That is, that the 16th could be considered to overrule Pollock *insofar* as it (Pollock) held that income taxes were direct taxes, but not so far as direct taxes must be apportioned. The former overruled but the latter not. Do we agree on this? The apportionment issue is addressed above. That the 16th doesn't specifically, or I'll choose the word explicitly, ID income as either direct or indirect, I'll agree. I do believe it results in income taxes falling into the indirect class out of consideration of it's relation to the rest of the Constitution as per Brushaber. As per above, I feel a yes/no answer would not do the question justice due to implications, but would choose yes if forced to, with reservations. I think that's addressed above.
Let me preface my remarks by stating for the record my revulsion at the malignant cancer the tax code has become and the way it (in subserviance to the government's indebtness and fiscal irresponsibility) has metastisized through the law and twisted the constitution beyond recognition by the framers. I don't like it. I don't agree with it. But to prevail against it, one must recognize its strengths as well as weaknesses. It is imperative to understand what the law is as written and enforced. At this juncture, our key difference seems to be more than semantic. You seem of the opinion that the 16th Amendment did not change the law, such that an income tax may not be an unapportioned direct tax, and you assert an income tax may only be an "unapportioned" indirect tax, and you somewhat grudingly acknowledge that is "regardless of source" but you rely on an argument from silence; that being that because the 16th Amendment did not specifically move income tax from the indirect class to the direct class, you conclude from that silence that the "without apportionment and "without regard to source" language (which is clearly present - i.e. not silent) can not likewise permit a "direct" income tax on the owner ship of property. The 16th Amendment is in essence an "end-run" around the direct/indirect classifications. Such classes no longer matter for income taxing purposes because the "source" whence the income is derived no longer matters and specifically apportionment regarding said sources no longer matters, and the only remaining matters are uniformity and the meaning of "income". EISNER v. MACOMBER , 252 U.S. 189 (1920) The Sixteenth Amendment must be construed in connection with the taxing clauses of the original Constitution and the effect attributed to them before the amendment was adopted. In Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 15 Sup. Ct. 912, under the Act of August 27, 1894 (28 Stat. 509, 553, c. 349, 27), it was held that taxes upon rents and profits of real estate and upon returns from investments of personal property were in effect direct taxes upon the property from which such income arose, imposed by reason of ownership; and that Congress could not impose such taxes without apportioning them among the states according to population, as required by article 1, 2, cl. 3, and section 9, cl. 4, of the original Constitution. Afterwards, and evidently in recognition of the limitation upon the taxing power of Congress thus determined, the Sixteenth Amendment was adopted, in words lucidly expressing the object to be accomplished: 'The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.' As repeatedly held, this did not extend the taxing power to new subjects, but merely removed the necessity which otherwise might exist for an apportionment among the states of taxes laid on income. Brushaber v. Union Pacific R. R. Co., 240 U.S. 1, 17-19, 36 Sup. Ct. 236, Ann. Cas. 1917B, 713, L. R. A. 1917D, 414; Stanton v. Baltic Mining Co., 240 U.S. 103, 112 et seq., 36 Sup. Ct. 278; Peck & Co. v. Lowe, 247 U.S. 165, 172, 173 S., 38 Sup. Ct. 432. A proper regard for its genesis, as well as its very clear language, requires also that this amendment shall not be extended by loose construction, so as to repeal or modify, except as applied to income, those provisions of the Constitution that require an apportionment according to population for direct taxes upon property, real and personal. This limitation still has an appropriate and important function, and is not to be overridden by Congress or disregarded by the courts. In order, therefore, that the clauses cited from article 1 of the Constitution may have proper force and effect, save only as modified by the amendment, and that the latter also may have proper effect, it becomes essential to distinguish between what is and what is not 'income,' as the term is there used, and to apply the distinction, as cases arise, according to truth and substance, without regard to form. Congress cannot by any definition it may adopt conclude the matter, 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. [snip] After examining dictionaries in common use (Bouv. L. D.; Standard Dict.; Webster's Internat. Dict.; Century Dict.), we find little to add to the succinct definition adopted in two cases arising under the Corporation Tax Act of 1909 (Stratton's Independence v. Howbert, 231 U.S. 399, 415, 34 S. Sup. Ct. 136, 140 [58 L. Ed. 285]; Doyle v. Mitchell Bros. Co., 247 U.S. 179, 185, 38 S. Sup. Ct. 467, 469 [62 L. Ed. 1054]), 'Income may be defined as the gain derived from capital, from labor, or from both combined,' provided it be understood to include profit gained through a sale or conversion of capital assets, to which it was applied in the Doyle Case, 247 U.S. 183, 185, 38 S. Sup. Ct. 467, 469 (62 L. Ed. 1054). Brief as it is, it indicates the characteristic and distinguishing attribute of income essential for a correct solution of the present controversy. The government, although basing its argument upon the definition as quoted, placed chief emphasis upon the word 'gain,' which was extended to include a variety of meanings; while the significance of the next three words was either overlooked or misconceived. 'Derived-from- capital'; 'the gain- derived-from-capital,' etc. Here we have the essential matter: not a gain accruing to capital; not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value, proceeding from the property, severed from the capital, however invested or employed, and coming in, being 'derived'- that is, received or drawn by the recipient (the taxpayer) for his separate use, benefit and disposal- that is income derived from property. Nothing else answers the description. The same fundamental conception is clearly set forth in the Sixteenth Amendment-'incomes, from whatever source derived'-the essential thought being expressed with a conciseness and lucidity entirely in harmony with the form and style of the Constitution. Now, for the record, the Eisner opinion went on to rule that a stock dividend (receipt of additional paper stock shares as a distribution of capitalized profits, which is not the same as a cash dividend) was *not* taxable as income: We are clear that not only does a stock dividend really take nothing from the property of the corporation and add nothing to that of the shareholder, but that the antecedent accumulation of profits evidenced thereby, while indicating that the shareholder is the richer because of an increase of his capital, at the same time shows he has not realized or received any income in the transaction. [snip] Yet, without selling, the shareholder, unless possessed of other resources, has not the wherewithal to pay an income tax upon the dividend stock. Nothing could more clearly show that to tax a stock dividend is to tax a capital increase, and not income, than this demonstration that in the nature of things it requires conversion of capital in order to pay the tax. Throughout the argument of the government, in a variety of forms, runs the fundamental error already mentioned-a failure to appraise correctly the force of the term 'income' as used in the Sixteenth Amendment, or at least to give practical effect to it. Thus the government contends that the tax 'is levied on income derived from corporate earnings,' when in truth the stockholder has 'derived' nothing except paper certificates which, so far as they have any effect, deny him present participation in such earnings. It contends that the tax may be laid when earnings 'are received by the stockholder,' whereas he has received none; that the profits are 'distributed by means of a stock dividend,' although a stock dividend distributes no profits; that under the act of 1916 'the tax is on the stockholder's share in corporate earnings,' when in truth a stockholder has no such share, and receives none in a stock dividend; that 'the profits are segregated from his former capital, and he has a separate certificate representing his invested profits or gains,' whereas there has been no segregation of profits, nor has he any separate certificate representing a personal gain, since the certificates, new and old, are alike in what they represent-a capital interest in the entire concerns of the corporation. The point of Eisner in our discussion is the definition of "income" without regard to source which includes a gain on property owned, property which except for the 16th Amendment would have otherwise been exempt from direct income taxation. This is no trivial or semantic distinction. While "paper" gains such as stock dividends via stock-splits remain non-taxable (because though recognizable, absent a sale they are not realized) realized gains such as interest on bonds (property owned), rent (from property owned) are taxed as income without regard to their source (property owned is in the direct class) and without regard to apportionment. Worse, the Alternative Minimum Tax has in some instances pre-empted the "recognized but unrealized" aspect of "paper" gains, and consequently income taxes on exercise of stock options (whereby one pays money to take possession of an otherwise unsold paper asset), and other tangible assets are now also taxed as income - all by the definition of income set forth in Eisner enabled by the 16th Amendment's removal of consideration of "source" from which income is derived. Were it not for the 16th Amendment's overruling of Pollock, income or gain derived from ownership of property would not be taxable.
(The Gospel of Jesus Christ is the only true good news)
I certainly have no love for any tax that is imposed upon labor. Those who compare it to slavery are correct as it creates a "You work for me or you will die" mandate, since one must work in order to live. A tax on the efforts expended by one in order to live is slavery, albeit not 100% slavery as the person from whom tax is extracted is permitted to retain some of his labor for his own benefit. But then again, even slaves in the ordinary sense were allowed to eat some of the food they grew too and spend time providing for their own clothing and shelter needs or if they had that provided to them, compensatet for that expense from whatever labor they did expend, so even they were not 100% slaves either. The difference between that slavery and the slavery that exists today under the income tax as usually applied is only a difference in percentage with the added consideration that today's slaves are allowed to decide what labor they will do. You'll have no dispute from me that regardless of its history or how we got to where we are to today, the end result is complete disaster and something the framers, had they foreseen what would come, would have taken any steps to avoid. They may well have taken pride in seeing the USA grow to the size it has, but would nonetheless have completely disowned it for what it has become. If the intent of the law is the force of the law, then the intent of the Constitution, at least in its original form, has been completely misconstrued today. This is true. It may not be worth laboring this matter further. One problem with taxing income is defining the word "income" which neither the Constitution nor the tax code ever does. The early 1900's were not good times. I theorize that was in part due to it being run by a generation that did not know the nature of the war between the states or understand the concept of state sovereignty. They embraced a lot of things they should not have embraced, like a central bank.
Just to be clear, it is defined. See EISNER v. MACOMBER , 252 U.S. 189 (1920) in my post #110 above, definition is underlined and in boldface, and see the consequent elaboration of income definitions in Title 26 in nolu_chan's post #95. And yes, Title 26 is law. The IRS invariably attempts to expand the definitions, most recently attempting to include compensation for damage awards (05-5139 Murphy v IRS, wherein the government lost on appeal and is seeking a re-hearing and Murphy is objecting and SCOTUS has already denied cert to one other appellant based on Murphy) and these definitions do evolve, but make no mistake, they are defined. Seemingly not. I will at some point post my thoughts on Banister, as requesed.
(The Gospel of Jesus Christ is the only true good news)
A couple SC decisions do define it, including Flint, I think it is, which defines income as gains, profits and so forth (but not including wages). Title 26 does define "Gross Income" in terms of "income", and "Taxable income" in terms of "Gross Income" but does not define the single word "income" alone. In my previous claim I said the Constitution nor the IRC defined income, which excludes SC decisions, and I'll stick to that. Whether a trade of labor for something of equal value constitutes gain is one point of contention as arguably there is no profit or gain when one makes an equal value trade. Thank you. I would appreciate seeing that, as so far as I know, Banister's position largely overlaps that of SAPF. The first chapter of Banister's report, BTW, can be downloaded from his site, http://freedomabovefortune.com. He does solicit information in exchange for this download, but he says compliance is voluntary.
A couple SC decisions do define it, including Flint, I think it is, which defines income as gains, profits and so forth (but not including wages). Title 26 does define "Gross Income" in terms of "income", and "Taxable income" in terms of "Gross Income" but does not define the single word "income" alone. You are perhaps thinking of Glenshaw which affirms the Title 26 definitions: COMMISSIONER v. GLENSHAW GLASS CO., 348 U.S. 426 (1955) The sweeping scope of the controverted statute is readily apparent: "SEC. 22. GROSS INCOME. "(a) GENERAL DEFINITION. - `Gross income' includes gains, profits, and income derived from salaries, wages, or compensation for personal service . . . of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. . . ." (Emphasis added.)[Footnote 4] This Court has frequently stated that this language was used by Congress to exert in this field "the full measure of its taxing power." Helvering v. Clifford, 309 U.S. 331, 334; Helvering v. Midland Mutual Life Ins. Co., 300 U.S. 216, 223; Douglas v. Willcuts, 296 U.S. 1, 9; Irwin v. Gavit, 268 U.S. 161, 166. Respondents contend that punitive damages, characterized as "windfalls" flowing from the culpable conduct of third parties, are not within the scope of the section. But Congress applied no limitations as to the source of taxable receipts, nor restrictive labels as to their nature. And the Court has given a liberal construction to this broad phraseology in recognition of the intention of Congress to tax all gains except those specifically exempted. Commissioner v. Jacobson, 336 U.S. 28, 49; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87-91. Thus, the fortuitous gain accruing to a lessor by reason of the forfeiture of a lessee's improvements on the rented property was taxed in Helvering v. Bruun, 309 U.S. 461. Cf. Robertson v. United States, 343 U.S. 711; Rutkin v. United States, 343 U.S. 130; United States v. Kirby Lumber Co., 284 U.S. 1. Such decisions demonstrate that we cannot but ascribe content to the catchall provision of 22 (a), "gains or profits and income derived from any source whatever." The importance of that phrase has been too frequently recognized since its first appearance in the Revenue Act of 1913[Footnote 5] to say now that it adds nothing to the meaning of "gross income." [snip] It therefore cannot be said with certitude that Congress intended to carve an exception out of 22 (a)'s pervasive coverage. Nor does the 1954 Code's[Footnote 9] legislative history, with its reiteration of the proposition that statutory gross income is "all-inclusive,"[Footnote 10] give support to respondent's position. The definition of gross income has been simplified, but no effect upon its present broad scope was intended.[Footnote 11] Certainly punitive damages cannot reasonably be classified as gifts, cf. Commissioner v. Jacobson, 336 U.S. 28, 47-52, nor do they come under any other exemption provision in the Code. We would do violence to the plain meaning of the statute and restrict a clear legislative attempt to bring the taxing power to bear upon all receipts constitutionally taxable were we to say that the payments in question here are not gross income. See Helvering v. Midland Mutual Life Ins. Co., supra, at 223. Whether a trade of labor for something of equal value constitutes gain is one point of contention as arguably there is no profit or gain when one makes an equal value trade. I think your real issue is that the government, law, and courts have always held that human labor has no basis, i.e., its cost to the worker is presumed zero, and hence 100% of what the worker receives as income is not offset by any basis or cost to the worker of doing the work. If a basis were recognized for human capital, then that basis could be used to reduce the taxable portion of the wage - it wouldn't be 100% gain. The difference between the human capital basis and the wage paid would be the smaller taxable portion. But a basis in human capital is yet to be recognized, but the Murphy case I linked above may begin to open a crack in that position. In my previous claim I said the Constitution nor the IRC defined income, which excludes SC decisions, and I'll stick to that. Well, sincerely Neil, you can stick to that story but it won't change what you'll face in court. The Constitution, as meta-law, doesn't define common terms; it doesn't define "arms" or "assembly" or "press" or "freedom", or "religion", "imports", "exports", "duties"... etc. These are all terms with common law definitions. To expect or require the Constitution to define them is unrealisitic. And as mentioned and cited repeatedly above, the laws, rulings, and tax code do define income, gross income, etc. You have the last word, I'm really trying to just let this go :)
(The Gospel of Jesus Christ is the only true good news)
I got in way late in the thread, but I have to throw in my 2¢ worth. I KNOW FOR A FACT that the Social Security system is VOLUNTARY!! And I KNOW FOR A FACT that it is possible to WITHDRAW from that system. You can obtain a SS form 521 which is the form to WITHDRAW YOUR SS APPLICATION!!! And I KNOW FOR A FACT that once you are out of the "system", you are then free from the income tax. How do I know??? BECAUSE I HAVEN'T FILED A TAX RETURN OR MADE ANY TYPE OF INCOME TAX PAYMENT IN OVER 12 YEARS, AND NOT SO MUCH AS GOTTEN A LETTER FROM THEM...... And I know several people that withdrew from the SS, quit filing and paying taxes, and have not been contacted in any way by the IRS. One guy I know of has been out for over 23 years. Now if you choose to participate in commercial activities like having a SS account, a bank account, a driver's license, a business license, a stock market account, etc then YOU WILL be subject to the rules and regulations of those activities - and that includes the "income tax"... That is a CHOICE you have to make. Consider three economic sectors: public, private, and free. The public sector is the government or coercive sector - the master sector. The private sector consists of economic enterprises that obey and finance the masters and obtain "privileges" from them, like licenses, subsidies, tariff protection, government contracts, tax concessions, "supportive regulation," etc. This is the slave sector. It can also be called the victim sector. Enterprises in the victim /slave sector use "corporations" and other slave-structures. Consider a U.S. Supreme Court ruling still in effect: "There is a clear distinction in this particular case between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights. Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the State and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its charter." Hale v. Henkel, 201 U.S. 43 at 47 (1905). People who conduct their economic affairs in accordance with Hale v. Henkel operate in the free sector - the real free-enterprise sector. The modern day Social Security Act is codified at 42 U.S.C., sections 301-433. If there were a requirement that every American join the Social Security scheme, one would expect to find language in the act similar to the following: "Every American of the age of 18 years or older shall submit an application with the Social Security Administration and shall provide thereon the information required by regulations prescribed by the Secretary. Every member of Social Security shall pay the taxes imposed herein and records of such payments shall be kept by the Secretary for determining the amount of benefits to which such member is entitled hereunder." Amazingly, no such or similar language appears within the act, and particularly there is no section thereof which could remotely be considered as a mandate that anyone join Social Security. The closest section of the act which might relate to this point is the requirement that one seeking benefits under the act must apply for the same. But, this relates to an entirely different point than a requirement that one join. Since the statutory scheme fails to impose such requirement, the next question to be asked is whether perhaps the Social Security regulations themselves might impose such duty. But here, the regulations are no broader than the act itself, and the duty to apply for and obtain a Social Security card or number boils down to the following found at 20 C.F.R., section 422.103: "(b) Applying for a number. (1) Form SS-5. An individual needing a social security number may apply for one by filing a signed Form SS-5, 'Application for a Social Security Card,' at any social security office and submitting the required evidence... "(2) Birth Registration Document. The Social Security Administration (SSA) may enter into an agreement with officials of a State... to establish, as part of the official birth registration process, a procedure to assist SSA in assigning social security numbers to newborn children. Where an agreement is in effect, a parent, as part of the official birth registration process, need not complete a Form SS-5 and may request that SSA assign a social security number to the newborn child. "(c) How numbers are assigned. (1) Request on Form SS-5. If the applicant has completed a Form SS-5, the social security office... that receives the completed Form SS-5 will require the applicant to furnish documentary evidence... After review of the documentary evidence, the completed Form SS-5 is forwarded... to SSA's central office... If the electronic screening or other investigation does not disclose a previously assigned number, SSA's central office assigns a number and issues a social security number card... "(2) Request on birth registration document. Where a parent has requested a social security number for a newborn child as part of an official birth registration process described in paragraph (b)(2) of this section, the State vital statistics office will electronically transmit the request to SSA's central office... Using this information, SSA will assign a number to the child and send the social security number card to the child at the mother's address." The purported duty to apply for and obtain a Social Security number therefore boils down to this: you get it if you need it or request it. There is no legal compulsion to do so. The bottom line is if you want to be in the private sector and be involved in commercial activities - YOU DO NOT HAVE RIGHTS!!!! You give them up in favor of the "priveleges" of the commercial activities.... If General Motors has it in their corporate charter that they will not hire anyone without a Social Security number, (they have every legal right to do this) and you want to work for GM, then you'd better go sign up. Then sit down, shut up, and pay your taxes!! Now if you're willing to take some $8/hr cash-under-the-table job, and do without a driver's license, or marriage license, or ANY license, and NOT be under ANY contractual agreement with the state (even things like having a bank account) - that's a whole different deal. I get the feeling you want to find a way to legally get out of taxes, but still be able to write a check for the electric bill, and are willing to stand in line to renew your driver's license. Sorry, it don't work that way!!
No matter how noble the objectives of a government; if it blurs decency and kindness, cheapens human life, and breeds ill will and suspicion - it is an EVIL government. Eric Hoffer
It sounds like the case you cite was only challenging whether punative awards were taxable without bringing to question the issue of the nature of the income tax as direct or indirect or with it's related limitations. Yes courts will only address points of contention before them. They will rarely make rulings in favor of one party or the other that were not raised by either, such as striking down a harsh sentence as violative of the 8th amendment that bars excessive penalties when the defense didn't even think to ask for it. Brushaber/Stanton declare the income tax as indirect and as indirect it has limitations. If there are no limitations then why haven't those cases been overturned somewhere along the way? (That's a rhetorical question). Clearly the cost to provide labor is not zero. One expends calories to work which come from food we eat, and food comes at a price -- They didn't let me out of the supermarket without paying the last time I asked them. That doesn't even count the cost of cleaning work clothes and the cost of shelter within to rest in preparation for each day's work. Certainly if I were to build a robot that could do manual labor and started a business in sending it out to do work, It's recognized I would be able to deduct the full cost of maintenence needed to service the robot. Yet somehow the maintenence of natural persons that do the same thing are not deductable? No, labor clearly does not come at zero cost. No, I don't have a court case handy to back me up on that but it should instead be clear by the law of common sense. Any reprieve that can be obtained would be welcomed. Certainly anyone taking on the IRS with positions I've outlined will have an uphill battle, but even these particular arguments aside, there are plenty more procedural issues which the routinely IRS fails to comply with in their procedures. Examples: Seizing one's bank account with a notice of lien instead of a lein: Failing to sign Substitute for Return for non-filers (All tax returns must be signed by someone to be executable, but IRS personel routinely execute unsigned SFR's in order to create an assessment) -- Accusing a non filer in criminal court of violating a penalty statute rather than the statute that requires him to file (one I did mention above); Failing to issue proper delegation of authority to IRS personel who summon persons to appear before them. Those off the top of my head, and I'm not even in to it as much as some are. The things that take place in the courtroom are dubious as well. I think in Irwin Schiff's trial the jury asked the judge for a copy of the law which required him to file and the judge told them he wouldn't give it to them. For some reason they convicted him anyway. In the FtF DVD, a juror from another tax case describes the same thing happening, only they acquitted, and she described the judge as giving a rather livid reaction at the verdict. I've seen a copy of a pre-trial order denying defendants in a willfull failure to file tax case the ability to give any meaningful defense at all, including evidence related to the "willfulness" to commit a crime in not filing, which the SC has ruled must be present as one of the 3 necessary elements in sustaining a conviction. That's why I say the courts today are pretty crooked. I hear what you're staying, Star. You are basically echoing what pretty much any IRS/DOJ agent would say about income taxes, and doing so while lothing the income tax system. My take is this: If you are right and the 16th permitted congress to take a portion of any and every transaction ever made (given that every transaction at every level is income to at least one party, and since income doesn't have to be received in the form of money, argably every transaction is income to every party and if that sounds like I'm stretching things, consider what sales tax is) then this republic is already dead, and died for good in 1913. Because the power to tax is indeed, the power to destroy, and congress has it within it's legal means to destroy every person in the entire country. I'm also trying to let it go and I was going to hold you to that but then ended up ranting too long. I'll let you have the mic as long as you promise not to post any more court case opinions or IRC references. How's that sound? ;^) You are a tough guy, Star. Definitely gave me a run for my money. (No pun intended).
Dang, you are late. If Star's feeling the same way I do right now then he might just capitulate. And I'm proposing a moratorium on quoting case law on this thread.
To maintain a system of laws that are beyond the comprehension of the lawmaker, the law enforcemnt, and those allegedly subject to them is also beyond reason especially when they are described in the enforcement manual as: "a system of self-assessment and voluntary compliance".
"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. When you give up that force, you are ruined." Patrick Henry
The SSN is the binding element or anchor upon which our entire monetary fraud rests. We abolished involuntary servitude but left the option open to those wishing to volunteer. [See the 14th Amendment admonishment prohibiting citizens (of the federal U.S.) from questioning the national debt. Just shut up and pay it !!! (This is the type of conversation enjoyed by slaves). The Private (commercial) Central Banking System [Federal Reserve] has combined with the Government contrary to the original conditions set forth prohibiting the SSN's use as an identifier outside of the SS System, to coerce the populace into "volunteering". Many corporations are formed with the expectation of maximizing profits while limiting liability by people lacking knowledge of the ramifications. Corporations are a huge fraud that should be illegal for many reasons, but primarily because they are afforded opportunity to avoid strict liability for their actions. The income tax was originally known as the "CORPORATIONS" income tax and was imposed upon legal fictitions of the State for the privileges obtained. These legal fictions are duty bound to request applicants for employment to supply their SSN. [It appears that illegals are able to circumvent this notion in many cases]. It wasn't until WW II that the general populace began subjecting themselves to the income tax under the guise of a two year war tax. Finally, innieway mentioned public and private business which reminded me of the NOTICE printed on every Federal Reserve Note ... which contradicts the notion that every dollar in circulation is taxable. It states quite clearly that: This note (not money) is legal tender for all debts public and PRIVATE. This statement supports the concept of dealings outside of the public (Taxable) arena. The truth is that there isn't any way to pay for something with a debt (note). Legal tender and money are certainly not equals, especially when legal tender fails to extinguish the debt, and perpetual debt requires perpetual service of the interest on that debt. It's a criminal slave system operated against the people of the world by a criminal banking cabal (Central Banks internationally are the same) ... it's that simple. The cabal has conspired with criminals and morons within the government to establish a currency monopoly that is bankrupting the richest nation to have ever operated on planet earth. One can argue the finer points of the law until they're blue in the face, and come to any number of conclusions when the law in incomprehensible and legal precedent is artfully worded to confuse not inform, but in the end a free people cannot tolerate a system designed with the intent upon enslaving them, their children and their posterity, to an international criminal cartel of private bankers that use governments to provide cover and enforce collections.
"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. When you give up that force, you are ruined." Patrick Henry
Having reviewed again Banister's case, I'm less impressed than I was, but regardless he did set a better example than do most 'Tax Protesters'. Banister's biggest "mistake" (not entirely his fault) seems his taking on Walter Thompson as a client. Thompson is a loose cannon and it was largely Thompson's actions that dragged Banister into the gunsights of the IRS. Yes, the IRS was undoubtedly disapproving of Banister's viewpoints all along, but it was Thompson's irresponsible acting on those viewpoints that was the genesis of Banister's lawsuits. Here is my synopsis of the Banister/Thompson episode: 1993-99 Banister was IRS CID Count 1 against Thompson & Banister - Conspiracy 2000 Jan 1 - 2003 Jan 15 (Thompson & Banister acquitted) 2005 Jan Thompson convicted & sentenced to 6 years What Banister "did right" was his methodology of filing amended returns and seeking refunds based on his stated legal argument attached to those returns. Whether, in Banister/Thompson, the IRS could have been forced to prove the "861 argument" that was the basis for those returns was frivolous will never be known. Thompson shot themselves both in the foot, several times. All could be litigated, maybe even won, depending on the quality of Banister's research and preparation, but when Thompson prematurely stopped withholding employees' taxes based on that as yet unproven "861 argument", that escalated everything. Then when Thompson failed to abide by injunctions and orders, that was the last straw for the IRS & government. The criminal indictment followed and Thompson was convicted because (absent a prevailing decision on the "861 argument") he demonstrably evaded taxation. Thompson's actions were ill-advised and pre-empted getting a well- prepared "861 argument" defense presented. Banister, OTOH, was working through the legal procedures when Thompson's actions exhausted what little patience the courts have left on these matters. Banister, it seems, was properly filing amended returns based on his theories and working through the IRS processes anticipating (ultimately, I would presume) for Thompson to litigate against the IRS in District/Supreme court for refunds. Banister was following established procedure, albeit for claims the IRS and courts todate deem to be frivolous, but if one is to get a fair hearing, that is the route to take. Banister, it seems, represented himself as having 16th Amendment and "861" theories and offered his assistance and advice (and ultimately expert testimony) through the court proceedures which, given the IRS moves to disbar him, was about all he legally could do. Everything else was on Thompson (including following Banister's advice), but Thompson it seems had no grasp of how to prevail in court. In hindsight, what Banister should have done, is carefully seek out a sophisticated, wealthy and receptive client, plan a legal strategy that forces the IRS/ government to rely on legal cites that can be impeached by legal cites/evidence derived from Banister's research, and then builld a "test case" that can get to the Supreme court, assuming the IRS doesn't back out or dodge the bullet. Admittedly, Banister is not in control of his clients, but I find it hard to believe he didn't recognize the problems brewing in Walter Thompson. I gather from testimony that Banister was being careful to distance himself from Thompson's actions when Thompson decided to stop withholding his employee's payroll taxes - failure to withhold is a major, major, major no-no. Now while I agree with Banister's tactical approach to dealing with IRS procedures, I don't agree that on the merits he would likely have proven his argument and prevailed in getting the refunds. Which brings me to my last criticism of Banister. That to date, he's not made his research "Investigating The Federal Income Tax - Preliminary Report" freely available. Though I would commend him for the cites he does provide (that is the right approach to persuading people to adopt his point of view), he does not go far enough in making all of it readily available for examination. His allegations all pivot on the 16th Amendment not being ratified, which proof he withholds unless you send him $20. Now, I don't deny him the $20 so much, as I am just very suspicious of any obstacles placed in front of anything that purports to be a long-suppressed "truth" about the 16th Amendment never having been ratified, which revelation would have to be an upheaval of the IRS and government to the benefit of the common man. I'm also reluctant these days to "research" something in hardcopy print or video/audio format. I want to do computer searches for words and phases, and even copy & paste them into search engines and notes. Having seen (and wasted time on) so much crap that purports to be an exposé, I no longer have patience with anything that lacks all the earmarks of legitimate research (readily available, peer review, cites, analysis of competing theories and analysis of likely objections/arguments). Beyond Banister and his controversial subject matter, in other areas I also object when what might be otherwise legitimate research is offered only as a printed book for sale. While I admit to being spoiled by the immediacy of downloading off the internet, information as portentous as proving the 16th Amendment was not ratified ought to be freely disseminated, IMO. I can understand and am sympathetic to Banister's financial situation and his desire to recoup legal expenses. But as a Christian, I am a bit surprised that he doesn't trust God more and just give away his proof and let the chips fall where they may. Again, normally I would not expect people to give away their work product. But in this specific case I personally draw an exception regarding genuine proof that the 16th Amendment was not ratified. Consequently, I doubt it really is proof else we'd have heard the rumblings by now, and I'm not willing to waste $20 plus waste time only to find it's just another unsubstantiated claim. I'm happy to be proven wrong by someone else, I'm just unwilling to spend the time & money again myself, when it has been such a repetitively fruitless exercise to date.
(The Gospel of Jesus Christ is the only true good news)
And I'm proposing a moratorium on quoting case law on this thread. I'm happy to continue debating, or let it rest on Neil's "last word". But if we continue, I will cite law and would hope that others do as well. This is, after all, about what the law does or does not say, and which specific parts are or are not constitutionally enacted and enforced.
(The Gospel of Jesus Christ is the only true good news)
It should be remembered that the IRS has a lot of control over what tax issues get heard by higher courts. First of all, the IRS can be very choosey over who they take to court, and I understand they will decline to do so unless they think they have a 90%+ chance of conviction. Being well-known increases your chances due to the PR factor. And if the IRS loses a case, such as a trial court case, then it's usually over. If they win, then the defendants might appeal on up the ladder, but such appeals often not even heard. I think what defendants might be arguing is carefully considered prior to trial to avoid having some chink in their armor get passed up to higher courts. And then the supremes only hear 1% of the cases appealed to them and I hear that lately the percentage is droping further. One of the charges against SAPF in 93 was failure to withhold. SAPF won while admitting that no withholding was being done for the staff. I used to feel that way when I first started investigating, but there's a real compelling reason why benefit of a doubt should be granted. Simply put, the playing field is not level between the tax-honesty movement and the government. The reason is money. IRS/DOJ personnel get paid and paid well to go around raiding peoples homes, garnishing wages, cleaning out bank accounts, trying people and putting them in jail. They get paid to do all that. The tax-honesty movement, so called, on the other hand, has no such payroll. Those who research do so unpaid while doing something else for a living and it takes a *lot* of time, as this thread pretty much shows. Those who decide to get involved and exercise their rights under the law as they understand it do so at a risk, and most of those end up taking a hit financially just because it's much harder to get a job without an SSN or without withholding. So it's really an economic necessity for those people, like Bill Benson who traveled to every one of the states that supposedly approved the 16th to determine from those state records that it really wasn't passed. John Kotmair has been in court and been to jail and returned to fight another day. Banister no longer has his IRS job. These people need funds just to get by and if someone is honest enough to be researching the subjects, it's economical for them to purchase the materials rather than do all that homework on their own. My take: That's between him and God and it's not for me to be surprised. He's entitled to compensation for his work. Nothing against you if you don't want to buy it. I've not bought his either. Then again, I've been in the movement longer than he has. Bill Benson's "The Law that Never Was" also covers the ratification problem with the 16th. I don't know how much that costs. I've not read that either
I had a friend that showed me much of the "We the People" (or whatever Schultz's movement is called), and part of it was setting up offshore financial protection etc., as well as the 5th Amendment arguments and non-ratification of the 16th. I looked favorably upon their publishings in the USA Today etc., and but wondered why they would drag out arguments that had been rejected a multitude of times before. I recommended Otto Skinner's Books to him and made a point of stating that 1st there has to be a law that makes one "subject to or liable for" the tax. The Biggest "Tax Loophole" of All Provides the clearest and best explanation of the so-called "income" tax and the Sixteenth Amendment available to Americans today. This is the most comprehensive of the books covering every aspect of the "Income" tax including Supreme Court decisions as far back as 1796 and as current as today. The Best Kept Secret, "Taxpayer" v. Nontaxpayer Was originally written in 1986 and updated in 1996, with emphasis on the fact that the right to receive earnings or income is a right that cannot be taxed for revenue purposes. If You Are the Defendant Was originally written in 1989 and updated in 1996, with emphasis on defending one's self against alleged violations of the revenue laws. One cannot operate their life according to Scripture and be unequally yoked with luciferians ... it's that simple. An appropriate Federal Brief would begin with these words" Get thee hence Satan. Otto Skinner's website where you can order the books is: http://www.ottoskinner.com/about.ht ml
"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. When you give up that force, you are ruined." Patrick Henry
I may just go dig that case out and see what the rulings were. Somewhere along the way I got the impression that you were persuaded/convinced the 16th Amendment was not ratified. Not having read what is purported to be the best research on that theory, on what research do you base your belief, or do I misunderstand your belief as to 16th Amendment ratification?
(The Gospel of Jesus Christ is the only true good news)
One can argue the finer points of the law until they're blue in the face, and come to any number of conclusions when the law in incomprehensible and legal precedent is artfully worded to confuse not inform, but in the end a free people cannot tolerate a system designed with the intent upon enslaving them, their children and their posterity, to an international criminal cartel of private bankers that use governments to provide cover and enforce collections. outstanding - bump
Thank you ... I appreciate the feedback !
"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. When you give up that force, you are ruined." Patrick Henry
I was merely referring to the LEGAL question of the voluntary nature of the SS system. It would appear that in fact SS IS a voluntary system as opposed to mandatory, as the administration itself has a form for withdrawal of application. If it were a MANDATORY system, WHY would they have such a form? So this would indeed seem to suggest that the LAW says "SS is VOLUNTARY"!!! Of course, there is clever wording in the form which would at least give the appearance of a "mandatory" nature of the system, however the smallest bit of common sense clearly dictates EXACTLY what this form is for. The bottom line is: ALL of the "people" involved in all of the courts in which you are quoting "case law" HAVE a SS#(otherwise known as a Taxpayer Identification Number); and it is this that BINDS them to the income tax system, and subjects them to the "tax code"!! A TIN is MANDATORY to pay income taxes!!! As I stated earlier, Hale vs. Henkel is STILL in effect, and establishes a RIGHT to carry on as an individual. The CATCH is that the only "individuals" are the ones that are NOT IN the SS system.... Being and "individual" does have it's "drawbacks". For example, it can be very difficult to secure work - as the large majority of employers are CORPORATE employers, and they have every legal right to have in their corporate charter that all employees have a SS or TIN number. If this is indeed in their corporate charter, an individual simply can't work for them... Another is that you will not be able to get on Medicare or Medicaid, so if you're likely to need a quadruple bypass in your latter years because you couldn't push away from those pork chops or that fat on your steak was just too tasty to trim it away (both of which are in violation of The CREATOR'S LAWS, and HIS Laws were intended for OUR benefit - NOT for HIS or the corporation's - unlike most of government's laws), then perhaps you'd better not opt out - as those medical expenses could bankrupt a person in a hurry.... It's a decision you have to make. Like the old saying goes "You can't have your cake and eat it too".
No matter how noble the objectives of a government; if it blurs decency and kindness, cheapens human life, and breeds ill will and suspicion - it is an EVIL government. Eric Hoffer
One can argue the finer points of the law until they're blue in the face, and come to any number of conclusions when the law in incomprehensible and legal precedent is artfully worded to confuse not inform, but in the end a free people cannot tolerate a system designed with the intent upon enslaving them, their children and their posterity, to an international criminal cartel of private bankers that use governments to provide cover and enforce collections. It really is as simple as that. Bill and I met with attorney, John Green, of the Andrew Jackson Society (he's a friend and associate of Edwin Vieira,Jr), yesterday, and one of the things he told us is that John Snow, former Secretary of the Treasury, made the statement that the tax code is incomprehensible (I'd like to see that if anyone can find it). Think of the implications. If he or any of them can't understand it, how then can any of us be expected to? And, that being the case, that means every person now imprisoned for tax evasion etc etc should be freed.
I do have Otto Skinner's "The biggest tax loophole of them all" and found it to explain principles of the income tax in light of 16th and SC decisions very well. It came recommended years ago from many sources so I bought it then.
I've not researched the ratification of the 16th myself, and do base my comments on "hearsay". I know it was heavily researched by Benson and that it was his conclusion it was not ratified. I recall the claim being based on various criteria -- some states passed a version of the amendment that wasn't worded correctly, if only misplaced punctuation. another passed a version modified outright. In one ironic twist, one state supposedly passed it in spite of it's constitution prohibiting it from voting to approve any new federal taxing power which the 16th would not/did not do if it conferred no new taxing power. I understand it was taken to court but the court ruled it was a political matter out of their jurisdiction. So far as I know, the allegation has not been contested by pro-tax sympathizers, never been declared wrong by any court. In fact, Aaron Russo in FtF quotes a judge saying the evidence supports the notion that the 16th wasn't properly ratified, though I've not verified his claim. But yes, for me I readily admit it's hearsay. My researched position, however is that it doesn't matter since it conferred no new tax power as per Brushaber/Stanton. It remains an important matter only for the conventional income tax theory advocates.
If there was ever a candidate for a law that was ripe for being declared void for vagueness, it would have to be the Internal Revenue Code.
The wording in the "I hereby request..." says in part: That suggests that it would not cancel the number. I mentioned before this might be just to cancel an application for SS payout benefits, not one's number. So if you've used this, the million FRN question is: have you been able to verify that the SS has purged the SSN they issued you?
Under normal circumstances a person has to have knowledge or awareness of the crime and the intent to commit it before they can be convicted of it ... so I would certainly agree.
"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. When you give up that force, you are ruined." Patrick Henry
You are correct, once a number has ever been issued and so much as one red cent paid in to that "account", that number is NEVER rescinded. However, the application can be - thereby disassociating you from that that number. The number is "theirs", always was, and never was YOURS. In effect, you are withdrawn from the system. Afterwards, whenever the number is accessed, they draw up the record, but no it longer has a name associated with it. It is as if you are dead to the Social Security and tax system. My very best friend and "mentor" has indeed gone to the local SS office and had them do a search of his "number". It came back that there was no record (at least not one that associated him with that number). He IS out... He had them verify and "stamp" this confirmation for him. I take that as being good enough. TO TOMMY: I noticed you had asked very early in the thread about "can you withdraw from SS". PING back to comment #127
No matter how noble the objectives of a government; if it blurs decency and kindness, cheapens human life, and breeds ill will and suspicion - it is an EVIL government. Eric Hoffer
I'll have to try that out.
[Starwind #124] I may just go dig that case out and see what the rulings were. In the case, Save-a-Patriot Fellowship v. United States, the US had seized, for payment of taxes owed by Kotmair personally, $44,115 in U.S. currency from one location in a safe and $377 in currency from another location of the same safe. Also seized were "Various numismatic coins and items found in the safe and elsewhere in the Residence." It was also alleged that a vial of Holy Qettoret was seized. Holy Qettorett was said to be "The sacred substance used in the Temple prior to its destruction and, some believe, necessary to sanctify the Temple upon its reconstruction so that the Messiah can perform prophesied miracles upon his/her return." The Court decided that Plaintiff "had not established that the substance had been taken by the I.R.S." Court found that $384 cash, the $210 of money orders and $ 40 of Susan B. Anthony Dollars found at the Office were, when found, property of the SAP Fellowship which had not yet been mingled with Kotmair's personal assets. The Court entered a judgment in favor of Plaintiff SAPF for $634 plus interest. The Court wrote that the $44,115 was considered lost to SAPF when it was commingled with funds of Kotmair for his personal use, and that the action for recovery for these funds had been filed after the time allowed by statute had tolled. As the seizure was against Mr. Kotmair personally, and $634 was shown not to have been commingled with the personal funds of Kotmair, that $634 was returned to SAPF. SAPF did not recover the $44,115. [EXCERPT] Kotmair: That is a hard question to answer. THE COURT: That is why we ask it. Kotmair: If the energy from it goes to the Fellowship, and it does, I would say it is to the benefit of the fellowship. The Court declines to follow the "logic" of Kotmair's position or to dwell upon the point in the digestive process at which Kotmair would agree that the I.R.S. could effect collection. Rather, the Court must conclude that once Kotmair takes Fellowship funds for personal use, those funds can no longer be found to be Fellowship property immune from levy for Kotmair's tax liabilities. The Court finds from the evidence that the SAP Fellowship obtained, and had ownership of, the cash and money orders it received for memberships and the sales of goods, and, possibly services. If the Fellowship had established that Kotmair's possession of particular assets was solely as Fiduciary for the SAP Fellowship the ownership could remain in the Fellowship. However, at such point as Kotmair took the assets and did not place them in a location [n23] that was exclusively used for the maintenance of Fellowship assets, the ability of the SAP Fellowship to establish ownership in this case was lost. In the context of this case, once the cash and money orders were taken from the office and placed in something other than a Fellowship depository, the funds were available for the immediate personal use of Kotmair, mingled with his own assets, and no longer had the character of Fellowship assets sufficient to avoid levy. In this case, the cash and money orders that had been removed from the office prior to the raid were found in the Residence in various locations, none of which have been established to be exclusive association depositories. However, the Court finds that the $ 384 of cash, the $ 210 of money orders and $ 40 of Susan B. Anthony Dollars found at the Office were, when found, property of the SAP Fellowship which had not yet been mingled with Kotmair's personal assets. Accordingly, the Court concludes that the SAP Fellowship has carried its burden of proof and proven ownership with regard to these assets found in the Office, but not as to the cash and money orders found in the Residence. MEMORANDUM OF DECISION IN THE CASE COUNSEL: For SAVE-A-PATRIOT FELLOWSHIP, an unicorporated association, plaintiff: George E. Harp, Law Office, Shreveport, LA. For UNITED STATES OF AMERICA, defendant: Lynne A. Battaglia. Beverly Moses Katz, U.S. Department of Justice, Washington, Dc. JUDGES: Marvin J. Garbis, United States District Judge OPINIONBY: Marvin J. Garbis OPINION: MEMORANDUM OF DECISION This case was tried before the Court without a jury. The Court has heard the evidence, reviewed the exhibits, considered the materials submitted by the parties and had the benefit of the arguments of counsel. The Court now issues this Memorandum of Decision as its findings of fact and conclusions of law in compliance with Rule 52(a) of the Federal Rules of Civil Procedure. I. BACKGROUND At all times relevant to this case, the Save-A-Patriot Fellowship ("the SAP Fellowship") has been based in a rented facility at 12 Carroll Street ("the Office") in Westminster, Maryland. Mr. John B. Kotmair, Jr. ("Kotmair"), was the founder and is the leader (called the "Fiduciary"), of the SAP Fellowship, Kotmair resides at 2911 Groves Mill Road ("the Residence") in Westminster, Maryland. On December 10, 1993, the Internal Revenue Service ("I.R.S.") executed search warrants at the Office and the Residence in connection with an investigation of Kotmair. The execution of the search warrants resulted in litigation by Kotmair seeking the return of a vial of Holy Qettorett [n1] allegedly seized by the I.R.S. in the raid. Kotmair v. United States, MJG-94-447. The Court decided, in the Kotmair case, that the Plaintiff had not established that the substance had been taken by the I.R.S. [n2] The instant case, which involves subject matter more mundane than Holy Qettorett, is brought by the SAP Fellowship. In the December 10, 1993 raid, the I.R.S. seized at the Office various documents, computer disks, files, papers, and other materials relating to the operations of the SAP Fellowship. There was also seized at the Office $ 384 of currency, 40 Susan B. Anthony dollars, and 5 money orders valued at $ 210. [n3] At the Residence the I.R.S. seized various papers and the following items: 1. The sum of $ 44,115 of U.S. currency found in one location in the safe. 2. The sum of $ 377 of U.S. currency found in another location in the safe. 3. Various numismatic coins and items found in the safe and elsewhere in the Residence. The items seized in the raid were taken by the Criminal Investigation Division of the I.R.S. for use in a criminal investigation. On December 22, 1993, the I.R.S. Collection Division served a Notice Of Levy on the Criminal Investigation Division so as to take the $ 44,115 in currency for application to the outstanding tax liabilities of Kotmair. On September 2, 1994, the Collection Division levied upon the remainder of the above-mentioned seized property for application to the tax liabilities of Kotmair. The SAP Fellowship filed this law suit on March 29, 1995, a date beyond the nine month limitation period [n4] following the December 22, 1993, levy but within nine months of the September 2, 1994, levy. By Memorandum and Order of May 10, 1996, this Court dismissed the Plaintiff's claim as to the $ 44,115 in currency due to the expiration of limitations. There remained for trial the SAP Fellowship's claim to the assets levied upon on September 2, 1994. II. NATURE OF THE CASE As stated in Saltzman, "IRS Practice and Procedure," P 15.07[2][a] (2nd ed. 1991): HN1 In general, if a levy has been made on property . . . any person other than the taxpayer [against whose tax liability the levy was made] who claims (1) an interest in or lien on the property and (2) that the property was wrongfully levied upon by the Service may bring a civil action directly against the United States in federal district court." HN2 The statutory authority for a wrongful levy action is provided by Section 7426 of the Internal Revenue Code. See 26 U.S.C. § 7426. In a wrongful levy action the underlying assessment against the taxpayer (here Kotmair) is "conclusively presumed to be valid." § 7426(c) Hence, the only issue in the case is whether or not the subject property is the property of the wrongful levy claimant (here the SAP Fellowship). III. DISCUSSION A. The SAP Fellowship Activities The SAP Fellowship has been proven to exist, have members, and to function. The organization has assets, leases property, has a defined membership, publishes a newsletter, and has produced at least one video tape program, twelve hours of "Just The Facts." [n5] There is no doubt that Kotmair is the major figure in the SAP Fellowship. As far as the Fellowship is concerned, he is, as Theodore Roosevelt aspired to be [n6], the corpse at every funeral, the bride at every wedding and the baby at every christening." The SAP Fellowship operates without any written governance structure or financial records. Operating assets, such as files, equipment etc. are located at the Office. Money, money orders, and other valuables are received at the Office, but not kept there. Kotmair is free to, and does, take funds from the SAP Fellowship for personal use. However, the evidence does not disclose that Kotmair maintained a high standard of living or that such funds as were accumulated were necessarily his personal hoard. [n7] The SAP Fellowship describes itself [n8] in the following terms: The evidence, including testimony and a recent (Fall of 1996) membership newsletter, "Reasonable Action," establishes that the SAP Fellowship has organizational activities, including the providing of "information" regarding tax procedures [n9], views on the U.S. Constitution, and similar matters. The Fellowship offers for sale, or in its lingo "exchange for FRNs" [n10], various publications as well as video tape programs and audio recordings. The material includes its own publications, an 1828 dictionary [n11], a deposition of an F.B.I. Agent and a tape of the motion picture "Harry's War" [n12] in which a citizen victimized by unscrupulous I.R.S. employees obtains an armored vehicle and takes on, and wins over to his viewpoint, the U.S. Army. The Fellowship also offers the written works of Irwin A. Schiff who calls himself "America's leading untax expert." [n13] Schiff can be viewed as a "prophet" of the tax protester movement and a "guru" for Kotmair. Although convicted of tax felonies [n14] and out of step with legal reality (as seen by federal judges), Schiff presents a most entertaining view of the tax law. He has been described by Judge Guerfein of the Second Circuit [n15] in the following terms: [Schiff] was in the insurance business. He also fancied himself a "constitutionalist", an extremist who reserved the right to interpret the decisions of the supreme court as he read them from his layman's point of view regardless of and oblivious to interpretations of the judiciary. One can describe his attitude either as contumacious of governmental authority for the purpose of advancing the common weal, or as that of a clever faker who used his own distortions of the Constitution as a flimsy excuse for failing to pay his income taxes. In addition to affording its membership access to the philosophy of Irwin Schiff and his disciples, the Fellowship offers a program by which, supposedly [n16]: Fellowship members pledge to reimburse other members for losses of cash or property incurred from illegal confiscation by the IRS and/or their nasty little brothers in state governments. This is done by spreading the reimbursement costs to all members. Essentially, when a member suffers a "qualified" loss of property or freedom, he/she submits a claim to the SAP Fellowship which, after validation, supposedly results in reimbursement for civil losses (to a $ 150,000 maximum) and a stipend of $ 25,000 per year of incarceration. The payments are to be made by the membership directly to the validated claimant or the claimant's family. A civil claim is validated: A criminal claim is validated: The Fellowship also conducts activities for its "Independent Representatives." [n17] For example, in October of 1996, the Fellowship offered a series of seminars for members, a Saturday night meeting open to the public, a Sunday social and, as a highlight of the function, the wedding of two of the Independent Representatives. [n18] B. The SAP Fellowship Is An Unincorporated Association The Government contends, at the threshold, that the SAP Fellowship is not an organization at all, but is solely a name used by Kotmair for his own "sole proprietorship" operation. The Court does not agree, even though it is readily apparent that Kotmair is the major figure in the Fellowship. As noted above, the evidence established that there is an organization and not simply an operation by Kotmair personally. The SAP Fellowship, and not Kotmair personally, leased the Office. There are members, other than Kotmair, who engage in Fellowship activities. This Court observes, also, that the I.R.S. itself, quite appropriately, returned to the Office the operating assets seized from the Office (other than cash and numismatic items). These assets, at least some of which had more than nominal value, were simply (and correctly) assumed to be Fellowship property, as distinct from Kotmair's personal property. The Government's arguments regarding the absence of a written instrument of governance is noted but, in the context of this case, is not determinative. Moreover, the absence of records and record keeping, while significant in terms of the ability of the SAP Fellowship to carry its burden of proof does not overcome the evidence establishing that there is an actual unincorporated association distinct from its members. In sum, the Court finds as a fact that the SAP Fellowship is an unincorporated association (not just an alter ego or sole proprietorship of Kotmair), has members, and does things through persons in addition to Kotmair. C. An Unincorporated Association In Maryland Can Own Property The Government's second line of defense is that even if the evidence established that the SAP Fellowship is recognized as an unincorporated association, such an entity cannot own property as a matter of law. There is little precedent -- in Maryland law or elsewhere -- regarding property ownership by unincorporated associations. Presumably, those organizations that have significant assets find it beneficial to formalize their status, as a corporation, trust or other entity. However, the Court can take judicial notice of the fact that there are a multitude of unincorporated associations that function in spite of their informality. For example, there are many PTA's and other affiliations of persons with common interests that have not formalized their existence. Who would, sensibly, argue that a PTA treasury cannot be the property of the PTA? While the situation may be different in some other jurisdictions [n19] HN3 in Maryland the legislature has recognized that an unincorporated association can own property in its own right. [n20] The Maryland Code, HN4 Md. Cts. & Jud. Proc. Code Ann. § 6-406 provides: Moreover, HN5 Md. Cts. & Jud. Proc. Code Ann. § 11-105 provides: This Court concludes that, as a matter of law, an unincorporated association in Maryland can own property. The Government's reliance upon Bourexis v. Carroll County, 96 Md. App. 459, 625 A.2d 391 (Md. App. 1993), is misplaced. The Maryland Court of Appeals did not hold that an unincorporated association cannot own property. Rather, it held that in Bourexis, in which there was no evidence offered as to the "governance, powers, financing, or property" of the organization, there was "nothing to show it [was] an entity that may be sued. Id. At 395. For reasons stated herein, this Court concludes that the SAP Fellowship is an unincorporated association and, as such, is legally capable of owning property. It is, therefore, necessary to determine the extent to which the SAP Fellowship has carried its burden of proving that it owned the property at issue. D. What Did The Fellowship Prove It Owned? The SAP Fellowship chose not to maintain any bank accounts or even maintain records of its finances. That decision may well be consistent with the group's philosophy. [n21] The absence of bank accounts or records may also, whether as a deliberately sought "benefit" or not, make it more difficult for law enforcement to investigate its activities. Whatever the reasons for an absence of records -- be they philosophical or otherwise -- the decision has a price which goes beyond the inability to earn interest on bank deposited funds. That price certainly includes the inconvenience that results when the Fellowship finds itself involved in a legal proceeding in which it has the burden of proof. In this case, had the SAP Fellowship had its own bank account in which it maintained its funds it might have little problem in prevailing as to those funds. [n22] Similarly, although perhaps less conclusively, had the SAP Fellowship maintained records of its funds and had Kotmair as Fiduciary keep the association funds completely separate from his own, the Fellowship would have at least a possibility of carrying its burden of proof. However, the Fellowship presents no records whatsoever. Nor does the evidence establish that its funds were maintained separately from those of Kotmair. And, most significantly, there is no evidence from which the Court can determine at what point after Fellowship funds leave the Office in the possession of Kotmair that they cease to be held exclusively as the property of the SAP Fellowship. The record establishes that Kotmair was entitled to, felt free to, and did, take funds from the Fellowship and use them for his personal sustenance. Kotmair espouses a doctrine that would have funds that he takes to spend for personal use remain the property of the SAP Fellowship. Indeed, in the world according to Kotmair, if he uses Foundation funds for his food, the Foundation ownership extends to the food even as it proceeds through his digestive system. For example: THE COURT: We are trying to get an understanding of when something belongs to you and when it doesn't. When it belongs to [the SAP Fellowship], so I just want you to try and help me understand that. If you go to the grocery store and you buy Wheaties [with fellowship funds], when is it yours, after you eat it or . . . Kotmair: That is a hard question to answer. THE COURT: That is why we ask it. Kotmair: If the energy from it goes to the Fellowship, and it does, I would say it is to the benefit of the fellowship. The Court declines to follow the "logic" of Kotmair's position or to dwell upon the point in the digestive process at which Kotmair would agree that the I.R.S. could effect collection. Rather, the Court must conclude that once Kotmair takes Fellowship funds for personal use, those funds can no longer be found to be Fellowship property immune from levy for Kotmair's tax liabilities. The Court finds from the evidence that the SAP Fellowship obtained, and had ownership of, the cash and money orders it received for memberships and the sales of goods, and, possibly services. If the Fellowship had established that Kotmair's possession of particular assets was solely as Fiduciary for the SAP Fellowship the ownership could remain in the Fellowship. However, at such point as Kotmair took the assets and did not place them in a location [n23] that was exclusively used for the maintenance of Fellowship assets, the ability of the SAP Fellowship to establish ownership in this case was lost. In the context of this case, once the cash and money orders were taken from the office and placed in something other than a Fellowship depository, the funds were available for the immediate personal use of Kotmair, mingled with his own assets, and no longer had the character of Fellowship assets sufficient to avoid levy. In this case, the cash and money orders that had been removed from the office prior to the raid were found in the Residence in various locations, none of which have been established to be exclusive association depositories. However, the Court finds that the $ 384 of cash, the $ 210 of money orders and $ 40 of Susan B. Anthony Dollars found at the Office were, when found, property of the SAP Fellowship which had not yet been mingled with Kotmair's personal assets. Accordingly, the Court concludes that the SAP Fellowship has carried its burden of proof and proven ownership with regard to these assets found in the Office, but not as to the cash and money orders found in the Residence. The evidence regarding the numismatic items is not sufficient to permit any finding for the SAP Fellowship. There are references in the evidence to some association receipts of numismatic items. But, there is an absence of specific evidence relating to any particular item sufficient to carry the burden of proof. Moreover, the evidence is not adequate to establish that any of the numismatic items were maintained in a location that can be found to be a Fellowship depository. There was no record of which items belonged to the association. And, there was nothing, not even a sign, a label, a wrapping, or anything else that would indicate that the ownership of the items was other than that of Kotmair in whose home the items were found. Accordingly, the Court cannot find for the plaintiff with regard to the numismatic coins and items. IV. COSTS AND LEGAL FEES The history of this case, and the related litigation, leads the Court to address the matter of costs and legal fees at this point to avoid further proceedings. The Court has found for the plaintiff in part and the Defendant in part. Therefore, the parties shall bear their own respective costs. To the extent that the plaintiff has prevailed, the Government had a reasonably justified position. Accordingly, there shall be no award of legal fees. V. CONCLUSION For the foregoing reasons: 1. The Court determines that the Plaintiff, the SAP Fellowship, is entitled to recover the $ 384 in currency, $ 40 in Susan B. Anthony Dollars, and $ 210 in money orders seized from the Office and levied upon to satisfy the tax liabilities of Kotmair on September 2, 1994. 2. Judgment shall be entered by separate Order [**22] awarding the Plaintiff a recovery of $ 634, plus interest thereon as provided by law, the parties to bear their own respective costs. SO DECIDED this 18th day of December, 1996. Marvin J. Garbis United States District Judge JUDGMENT This action came on for trial before the Court on September 20, 1996, Honorable Marvin J. Garbis, United States District Judge presiding. On this date, the Court has issued its Memorandum of Decision in this case. In view of the foregoing, Judgment is hereby entered in favor of Plaintiff SAVE-A-PATRIOT FELLOWSHIP against Defendant United States of America in the total amount of $ 634.00 plus interest as provided by law, the parties to bear their own costs. SO ORDERED this 18th day of December, 1996. Marvin J. Garbis United States District Judge - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n1 The sacred substance used in the Temple prior to its destruction and, some believe, necessary to sanctify the Temple upon its reconstruction so that the Messiah can perform prophesied miracles upon his/her return. n2 In the Kotmair case, the Plaintiff presented the testimony of Professor Vandyl Jones who claimed to be the original for "Indiana Jones." Professor Jones, was, in fact, searching for the Ark of the Covenant and actually found the ancient "factory" at which the Israelites manufactured and stored Holy Qettorett for Temple use. He found stored there a large quantity of "Holy Qettorett mix" needing only the addition of Sodom Salt and other ingredients. Dr. Jones entrusted a small vial of the substance to a "follower" of Kotmair, Scott Hucklebee, who brought it to America. However, the Court did not find that the vial was in the Residence at the time of the raid. Also, there was a sufficient supply left in Israel for use if, and when, needed so that the loss of the Hucklebee vial would not cause irreparable harm. n3 In the search warrant return this is described as "APPLICATION & 4 MO - $ 175." The $ 210 value is found because it is used in the parties' Joint Statement of Facts. n4 26 U.S.C. § 6532(c)(1). n5 That is the "facts" according to the Fellowship as led by Kotmair. n6 As stated by Alice Roosevelt Longworth, Theodore Roosevelt's daughter. n7 The SAP Fellowship claims that the $ 44,115 "hoard" was set aside for Fellowship use, noting that it has engaged in expensive activities, such as the production of the "Just The Facts" video tape. The Court makes no finding as to this contention in view of the denial of the claim for these funds on limitations grounds. n8 See the SAP Fellowship Program Agreement. n9 For example, a "press release" stating that a Washington State attorney had concluded that the I.R.S. has no authority to seize property in that state for income tax liabilities of "most citizens." This conclusion, it is said, was presented to, and not refuted by, the Washington State Bar Association and Attorney General. n10 Presumably Federal Reserve Notes since the Fellowship has an unorthodox view of "dollars." n11 Useful, presumably, in supporting arguments as to the original meaning of words in the Constitution and related documents. n12 The Court notes that the actor Edward Herrman played the role of a grass roots tax protestor in "Harry's War" and, more recently, the role of the President of the United States in "Pandora's Clock." n13 See the dust jacket to Irwin A. Schiff How Anyone Can Stop Paying Income Taxes (Freedom Books 1982). n14 United States v. Schiff, 801 F.2d 108 (2nd Cir. 1986), cert denied. 480 U.S. 945, 94 L. Ed. 2d 789, 107 S. Ct. 1603 (1987) n15 Schiff in United States v. Schiff, 612 F.2d 73, 75 (2nd Cir. 1979) (reversing conviction of tax crimes and remanding for new trial). n16 The Court is not finding that the program operates as asserted, but only that such a program is presented to members. n17 Presumably, its membership or a class of members. n18 Kotmair's role in the nuptials is not specified. n19 For decisions holding that an unincorporated association cannot own property, see Krumbine v. Lebanon County Tax Claim Bureau, 541 Pa. 384, 663 A.2d 158, 160 (Pa. 1995) (real property); Rock Creek Gardens Tenants Assoc. v. A.M. & L.A. Ferguson, 404 A.2d 972 (D.C. App. 1970) (per curium) (real property); United States v. Thevis, 474 F. Supp. 134, 138 (N.D. Ga. 1979); Libby v. Perry, 311 A.2d 527, 531-32 (Me. 1973). But See Loving Saviour Church v. United States, 556 F. Supp. 688, 690 (D.S.D. 1983) (holding that an unincorporated association is a legal entity and therefore can own property). n20 Compare, Motta v. Samuel Weiser, Inc., 768 F.2d 481, 485-86 (1st Cir. 1985) (stating that "courts may determine that ownership vests in the individuals who comprise the organizations.") n21 The Fellowship appears to have a distrust of banks. n22 Compare Arth v. United States 735 F.2d 1190, 1193 (9th Cir. 1984), in which the claimant's funds were deposited into the taxpayer's account and were held to have properly been levied upon. n23 Be it an office, a safe, a designated part of a safe, or other container plainly labeled to show Fellowship ownership and rigorously kept as Fellowship property. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
I believe the word income was defined in the 1939 Income Tax Act (going from memory) and it was defined as a profit or gain from a capital investment. The term income has never been otherwise defined in law. It is not necessary for a statute to define every word it uses. The term "income" was defined in the 1856 edition of Bouvier's "A LAW DICTIONARY" 6th ed. Philadelphia : Childs & Peterson, 1856. 2 vols. 2. It has been holden that a devise of the income of land, is in effect the same as a devise of the land itself. 9 Mass. 372; 1 Ashm. 136. Moreover, the Supreme Court has recognized an applicable definition. U.S. Supreme Court GOODRICH v. EDWARDS, 255 U.S. 527 (1921) And the definition of 'income' approved by this Court is:
[Neil McIver #103] As I said, some are charged with violating penalty statutes, one of which you posted. It is not possible to violate a law that prescribes a penalty. ... In order to be properly penalized with 7201, the state must show the citation of the tax referred to in "tax imposed by this title or the payment thereof", but they do not. I would surmise that it is not possible to demonstrate to a court that your argument has any legal merit. The tax imposed by Title 26 is the Federal Income Tax. The reference to "tax imposed by this title" clearly identifies the tax in question. Criminal statutes routinely prescribe a penalty. How would one be sentenced for an alleged crime that FAILS to prescribe a penalty? United States Code U.S. Code as of: 01/19/04 (a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree. (b) Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. (c) For purposes of this section - (2) the term "child" means a person who has not attained the age of 18 years and is - (B) at least six years younger than the perpetrator; (3) the term "child abuse" means intentionally or knowingly causing death or serious bodily injury to a child; (4) the term "pattern or practice of assault or torture" means assault or torture engaged in on at least two occasions; (5) the term "serious bodily injury" has the meaning set forth in section 1365; and (6) the term "torture" means conduct, whether or not committed under the color of law, that otherwise satisfies the definition set forth in section 2340(1). United States Code U.S. Code as of: 01/19/04 Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution. From Idiot Legal Arguments: Disagreement with tax law is not a defense to willfulness Disagreement with tax law is not a defense to willfulness: US v. Ferguson (SD Ind 1985) 615 F.Supp 8 aff’d 793 F2d 828 cert. denied 479 US 933 (in fact, the disagreement with the tax laws or the notion that the Internal Revenue Code is invalid shows an awareness of the contents of the tax laws and helps prove the element of willfulness); US v. Kraeger (2d Cir 1983) 711 F2d 6; US v. Weninger (10th Cir 1980) 624 F2d 163 cert.den 449 US 1012; US v. Benson (5th Cir 1979) 592 F2d 257; Koar v. US (SDNY unpub 8/14/98) 82 AFTR2d 6329, 98 USTC para 50748; knowledge that these arguments have already been rejected by courts or that the people advocating these arguments have already lost in court undermines a good faith defense: Roth v. CIR (9/23/92) TC Memo 1992-563; Gajewski v. CIR (11/10/76) 67 Tax Ct 181 aff'd (8th Cir 1978) 578 F2d 1383; US v. Condo (9th Cir 1984) 741 F2d 238 cert.den 469 US 1164; (similarly when the same perp persists in putting up losing arguments) Walker alias Theonaleth v. CIR (3/12/96) TC Memo 1996-124; ditto Harrell v. CIR (6/15/98) TC Memo 1998-207; (ignoring professional advice from lawyer or accountant) Ware v. CIR (6/5/84) TC Memo 1984-295; ("It should be pointed out, however, that neither a defendant's disagreement with the law, nor his own belief that such law is unconstitutional, no matter how earnestly held, constitute a defense of good faith misunderstanding or mistake. It is clearly the duty of all citizens to obey the law whether they agree with it or not. ... The defendant contends that his personal belief in what the law is or should be supersedes the federal Constitution and statutes as construed and applied by the Supreme Court. If each citizen is a law unto himself, government will exist in name only.") US v. O.W. Ware (10th Cir 1979) 608 F2d 400; (confusion or misunderstanding of the details of tax laws or of one's obligations under them is distinct from an opinion that the tax law is unconstitutional) US v. House (WD Mich 1985) 617 F.Supp 232 aff'd 787 F2d 593(t); (it is possible that the perp's naive reliance on a taxevasion guru could be used to defend against a charge of fraudulent intent but it cannot possibly defend against the fact that the perp failed to file his tax return, which does not depend upon intent) Nilson v. CIR (10/21/85) TC Memo 1985-535; (perp cannot offer as mitigation that he relied on the advice of certain lawyers, although it appears that he had some slight contact with each of them there is no evidence of the sort of intensive relationship, including full disclosure, that would make a good faith defense) US v. Masat (5th Cir 1991) 948 F2d 923 cert.den 506 US 835; (the facts that the perp had attended tax protester gatherings and had tried to use worthless funny money to pay her debts negated a good faith defense) US v. Grosshans (6th Cir 1987) 821 F2d 1247 cert.den 484 US 987; (altho some provisions of the tax law are sufficiently murky to justify litigation, the basic requirement that everyone receiving income above a certain minimum from any source must file returns and pay taxes is clear beyond dispute) US v. Melton (4th Cir unpub 3/8/96) 86 F3d 1153(t), 77 AFTR2d 2361 cert.den 519 US 820; (filing a false W-4 and failing to file a tax return evidences not a different interpretation but a willful breach of the tax law) Rowlee v. CIR (6/15/83) 80 TC 1111; (mere omission to file, without any sign of dishonesty or concealment, is insufficient to sustain a charge of tax fraud) Kotmair v. CIR (6/19/86) 86 TC 1253; ("However, a pattern of consistent failures to file for several years is strong evidence of fraud.") Harrell v. CIR (6/15/98) TC Memo 1998-207; similarly (mere failure to file a return, without more, does not show fraud but the addition of any other hanky-panky such as offering long-discredited protester arguments or furtive financial practices will indicate fraudulent intent) Sherrer v. CIR (4/14/99) TC Memo 1999-122; (having filed returns and paid taxes in previous years, perp could not pretend that he was ignorant of the general duty of filing such returns, etc.) US v. Bowers (4th Cir 1990) 920 F2d 220; similarly US v. Ferguson (7th Cir 1985) 793 F2d 828 cert.den 479 US 933; similarly US v. Trowbridge (9th Cir unpub 3/26/97) 110 F3d 71(t) cert.den 520 US 1235; similarly US v. Hart (ND Ind 1987) 673 F.Supp 932; similarly US v. Shields (8th Cir 1981) 642 F2d 230 cert.den 454 US 848; Wilber v. CIR (8/31/87) TC Memo 1987-439 aff'd (8th Cir unpub 11/10/88) 871 F2d 1092(t); US v. Rifen (1978) 577 F2d 1111; Cavanaugh v. CIR (8/19/91) TC Memo 1991-407 aff'd (10th Cir unpub 2/9/93) 986 F2d 1426(t); Jenny v. CIR (1/3/83) TC Memo 1983-1; "We believe an ordinary person would know that attempting to avoid payment of taxes is unlawful." US v. R. Bailey (10th Cir unpub 11/22/95) 72 F3d 138(t), 79 AFTR2d 1045. Filing W-4 forms falsely claiming many imaginary dependents is sufficient evidence of fraud. Wiggins-El v. CIR (9/10/81) TC Memo 1981- 495; ditto Coulter v. CIR (4/15/92) TC Memo 1992-224; similarly supposedly divesting self of all seizable properties by fraudulent conveyance (deeding to near relative "for $1 and other considerations" after the IRS began its investigations) is a sign of fraudulent intent. Cavanaugh v. CIR (8/19/91) TC Memo 1991- 407 aff'd (10th Cir unpub 2/9/93) 986 F2d 1426(t); similarly going to considerable lengths to conceal transactions and assets. Harrell v. CIR (6/15/98) TC Memo 1998-207; Wilber v. CIR (8/31/87) TC Memo 1987-439 aff'd (8th Cir unpub 11/10/88) 871 F2d 1092(t); Cupp v. CIR (10/14/75) 65 Tax Ct 68 aff'd (3d Cir 1977) 559 F2d 1207; having received a letter from the IRS assuring the perp that the tax is valid and constitutional and a letter from his employer that the weight of authority requires withholding taxes from his paycheck negates the defense of honestly not believing that the tax applied to him. Coulter v. CIR (4/15/92) TC Memo 1992-224; ditto US v. Rifen (1978) 577 F2d 1111; similarly having been notified by letter from the IRS that he is liable for taxes negates "good faith" defense that he thought maybe he wasn't. US v. Willie (10th Cir 1991) 941 F2d 1384 cert.den 502 US 1106; having previously lost a tax case on similar arguments negates good faith defense. Graber v. US (SD Iowa 1997) 993 F.Supp 685; being aware that his anti-tax gurus had been convicted of tax evasion negates good faith defense. US v. Crosson (ED Penn unpub 12/20/95); "The fact that the plaintiffs proceeded in this action without the assistance of an attorney does not insulate them from the [good faith] requirements of [FRCP] Rule 11. Any research on the part of the plaintiffs would have clearly shown that it has no chance of success in arguing that they were not subject to the federal income tax laws." Pottorf v. Bryan (D Kan unpub 5/18/87); perp’s failure to keep appointments for IRS interviews negates good faith defense. US v. Crosson (ED Penn unpub 12/20/95); similarly perp's refusal to allow IRS to examine his business ledgers on the pretext that because he refused to regard paper money as real money his ledgers did not show any dollar amounts. Wilber v. CIR (8/31/87) TC Memo 1987-439 aff'd (8th Cir unpub 11/10/88) 871 F2d 1092(t); perp’s refusal to file tax returns or pay taxes for several years, which persists because of his harebrained arguments, is a sufficient reason for the bankruptcy court to dismiss his petition and refuse him the protection of the bankruptcy law, since his available assets to pay his creditors cannot possibly be evaluated until his tax liability can be known. In re Shugrue (Bankr., ND Tex 1998) 221 Bankr.Rptr 394; ditto In re Cobb (Bankr. MD Fla 1998) 216 Bankr.Rptr 676; claim of innocent ignorance of the law is negated by the fact that the mountebank had been ordered by courts and by govt agencies to cease his scam, and that he even boasted that he was ignoring these orders. US v. Hildebrand (8th Cir 1998) 152 F3d 756; similarly such pretense is negated by the mountebank's own claim to have done legal research and his obvious usage of Black's Law Dictionary. US v. Fulbright (9th Cir 1997) 105 F3d 443 cert.den 520 US 1236; similarly when the tax evader "purports to be familiar with the tax laws". Blaty v. CIR (10/1/84) TC Memo 1984-518; [in one instance of imposing a fine under Rule 11, the court said, "An example of the frivolity of these filings is illustrated by the frequent bald citations to the Constutition of the US, the UCC, and any nearby Legal Dictionary." Stoecklin v. US (MD Fla unpub 11/7/97) 80 AFTR2d 8207]; even though perp is pro se, the court cases he misapplies clearly show that his position is wrong. Tornichio v. US (ND Ohio unpub 3/12/98) 81 AFTR2d 1377, 98 USTC para 50299; similarly tax evader's very convoluted research into ancient coinage laws evidenced his wrongful intent. US v. Shields (8th Cir 1981) 642 F2d 230 cert.den 454 US 848; fact that tax evader had advanced degrees with Phi Beta Kappa honors negated his good faith defense that he didn't understand simple IRS instructions and words like dollars. Stout v. CIR (3/3/86) TC Memo 1986-80; similarly tax evader's own testimony that he had first "conducted a very careful study" of reading several tax protester manuals (but evidently not a single conventional lawbook on taxation) effectively established that his tax evasion was willful and deliberate. US v. O.W. Ware (10th Cir 1979) 608 F2d 400; the courts have noticed when a litigant was using canned pleadings. US v. Schiefen (D SoDak 1995) 926 F.Supp 877 aff'd (8th Cir 1996) 81 F3d 166 mand.denied 522 US 1074; (and using canned pleadings so mindlessly that the defendant has not altered papers that speak of him as the plaintiff and ask for summary judgment against the defendant) Langseth v. CIR (9/19/83) TC Memo 1983-576; ("The Court suspects that the debtor has been overly active in searching the Internet for the latest batch of crazy and absurd pleadings created by the latest inventive tax protester group.... His pleadings look like they came off the latest web page for tax protesters and, as the Court has stated more than once, they make No Sense.") In re Shugrue (Bankr., ND Tex 1998) 221 Bankr.Rptr 394; "It is apparent that these cases are not mere isolated incidents with a peculiar coincidental similarity .... These tax protesters with their mass-produced attachments, complaints, motions and memoranda, all march to a common drummer." Vaughn v. US (WD La 1984) 589 F.Supp 1528; ditto In re Busby (MD Fla unpub 10/2/98) 82 AFTR2d 6924; ditto US v. Schiefen (D SD 1995) 926 F.Supp 877 aff’d 81 F3d 166 mand.denied 522 US 1074; "The language used by Plaintiff in this case is very similar to the language used by other persons ... not only in this district but throughout the US. It is not difficult, based upon this widespread use of the terms and the similarity of the pleadings, to conclude that there is ongoing communications among persons espousing these theories." R. Jones v. T.G. Watson (ND Ohio unpub 9/29/97); "The filing of frivolous lawsuits merely to protest the assessment of federal income tax has become a new and unpleasant indoor sport, particularly at a time when court dockets are crowded with cases of merit. The issues raised by the plaintiff in this action have been raised and adversely decided many times before. While consideration is given to the fact that the plaintiff is representing himself, the filing of a suit pro se does not give the plaintiff the right to proceed frivolously. Parties may be assessed reasonable expenses and attorney's fees under FRCP rule 11 and 28 USC sec. 2412 and the court finds that such an award is appropriate in this case. ... Would that law, common or otherwise, also authorize assessment of a penalty upon plaintiff for the time and trouble to which his frivolous action has subjected the court." McKinney v. Regan (MD La 1994) 599 F.Supp 126, 55 AFTR2d 1509, 85 USTC para 9479. Where tax protester's pleadings, submitted by their lawyer, claimed that their arguments had never been addressed by any federal court, the court quoted at length from an opinion of a circuit court of another circuit in a case involving the same arguments and the same lawyer. Charczuk v. CIR (10th Cir 1985) 771 F2d 471; Some of this argument arises from a serious misunderstanding of the Cheek decision, which misunderstanding has been widely repeated throughout tax scofflaw propaganda: In 1980, John L. Cheek, an airline pilot who had previously paid his income taxes, abruptly stopped filing tax returns and even filed a very unsuccessful challenge to the entire notion of income tax; Cheek v. Doe (ND IL 1986) 110 FRD 420 aff'd in part (7th Cir 1987) 828 F2d 395 cert.den 484 US 955; therafter he was convicted for numerous tax violations, and appealed on the grounds that the trial court should have not have instructed the jury to disregard his opinion that the income tax law was invalid as might relate to the willfulness of violating the tax law. The Circuit Court rejected that argument, US v. Cheek (7th Cir 1989) 882 F2d 1263, but the US Supreme Court held that the jury could at least hear the defendant explain how he thought the tax laws were invalid and then decide for themselves the issue of willfulness (and it ordered a new trial), Cheek v. US (1991) 498 US 192, 112 L.Ed.2d 617, 111 S.Ct 604. However, the Circuit Court, in transmitting the case back to the trial court for a new trial, emphasized some points made by the Supreme Court: "Tax evaders who persist in their frivolous beliefs, such as that wages are not income or that FRNs do not constitute cash or income, should not be encouraged by the [Supreme] Court's decision in Cheek or our decision today. While a defendant is now permitted to argue that his failure to file tax returns and to pay his income taxes was the result of his incredible misunderstanding of the tax law's applicability, the govt remains free to present evidence demonstrating that he knew what the law required but simply chose to disregard those duties.." US v. Cheek (7th Cir 1991) 931 F2d 1206; in the new trial the jury was not as gullible as Cheek had hoped and he was sentenced to a year and a day in prison and a fine of $62G, and his attempt to appeal this new conviction was very unsuccessful. US v. Cheek (7th Cir 1993) 3 F3d 1057 cert.den 510 US 1112; as a result of his imprisonment his career as an airline pilot was terminated. Cheek v. American Airlines Inc. (7th Cir unpub 6/25/96) 89 F3d 838(t) cert.denied 519 US 993. A court was permitted to tell the jury that the perp's opinion that tax laws are unconstitutional cannot constitute a good faith defense, and the resulting conviction for multiple counts of tax evasion upheld. US v. M.L. Lindsay (10th Cir 7/1/99) _F3d_, 99 USTC para 50648, 84 AFTR2d 5102 ; court can instruct jury that they can consider whether the defendant's notions about tax laws are reasonable as a factor in evaluating whether he held those opinions in good faith. US v. D.D. Murphy (7th Cir unpub 6/10/99); but there is a difference between a plausible misunderstanding of the meaning of the tax law and the willful failure to comply with it as a challenge to its validity, as the defendant's previous filing of tax returns demonstrates that he was aware that the law required the filing of tax returns then his subsequent deliberate non-filing demonstrated the willfulness and his theories about the law's constitutionality were immaterial. US v. Masat (5th Cir 1991) 948 F2d 923 cert.den 506 US 835;
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Top • Page Up • Full Thread • Page Down • Bottom/LatestThe courts have stated a million times that even if the 16th wasn't properly ratified, we've operated under it for so long it doesn't matter. (Cute huh) !
#99. To: Neil McIver (#98)
(Edited)
#100. To: Starwind (#85)
Obviously, Pollock ruled that taxes on income from property (rents, real estate) was in reality an unapportioned direct tax and therefor unconstitutional, whereas the 16th amendment specifically removes taxes on income from any source from the apportionment requirement regardless of being construed direct, or indirect.
But the 16th amendment broadened that authority to remove the apportionment test on income from any source.
The author presumed his readership would in fact compare the language of the 16th amendment text against the opinion in Pollock (granted, a lot to presume these days). A review of Brushaber and Stanton rulings (already cited above) reinforces the caselaw viewpoint that the 16th amendment overruled Pollock.
Oh please Neil, which part of "The Congress shall have power" ... " to tax incomes, from whatever source" ... "without apportionment ... census or enumeration" do you not get?
#101. To: Neil McIver (#100)
That's not what the SC said it did. The SC said the 16th merely qualified the income tax as an indirect tax. They were quite plain about that.
It did not broaden any authority whatsoever, as it conferred no new powers of taxation. The SC declared that it merely ensured that income taxation was to always be considered an indirect tax and weighed as such with the rule of uniformity, and never to be weighed as a direct tax as a tax upon property requiring apportionment. Again, the SC was plain about this.
The 16th *must* be taken in context with the rest of the Constitution which prescribes that direct taxes must be apportioned, and indirect must be uniform, and it's on that basis that the SC declared that the 16th clarified the income tax falling into the indirect class and did not confer any new taxation powers, did not create an exception to the direct tax requirement, and did not create a new 3rd tax classification beyond direct and indirect. I'm not making this up, Star. That's what they said.
#102. To: nolu_chan (#89)
See if you can find what was left of Pollack overturned by South Carolina v. Baker.
The bill charged that the provisions in respect of said alleged income tax incorporated in the act of congress were unconstututional, null, and void, in that the tax was a direct tax in respect of the real estate held and owned by the company in its own right and in its fiduciary capacity as aforesaid, by being imposed upon the rents, issues, and profits os said real estate, and was likewise a direct tax .....
The bill further charged that the income-tax provisions of the act were likewise unconstitutional, in that they imposed a tax on incomes not taxable ud er the constitution, and likewise income derived from the stocks and bonds of the states of the United States, and counties and municipalities therein, ...
We thus confirm that subsequent case law has overruled the holding in Pollock
that state bond interest is immune from a nondiscriminatory federal tax.
#103. To: nolu_chan (#90)
#104. To: nolu_chan (#92)
But the question is, do those sources really stand up to Constitutional Law and current SC precedent, or do they simply rewrite them by obfuscation as though the Constitution was a "living document" that can mutate over time?
The Constitution most certainly changes when it is amended.
Regarding the income tax, the Sixteenth Amendment changed the Constitution to have it allow taxation upon income from any source without regard to apportionment.
#105. To: noone222 (#97)
I believe the word income was defined in the 1939 Income Tax Act (going from memory) and it was defined as a profit or gain from a capital investment. The term income has never been otherwise defined in law.
#106. To: noone222 (#99)
I'm of the opinion that the framers did the best job they could to guard against a slave system.
They gave us the basis for taxation that would support a relatively small government, adequate (Army/Navy), and even allowed a couple of years for oppressive taxes under war conditions.
There's no way they would accept what D.C. is extorting today through weasel worded legaleze.
#107. To: Starwind (#101)
That's not what the SC said it did. The SC said the 16th merely qualified the income tax as an indirect tax. They were quite plain about that.
Ok, then, please cite the specific ruling wherein SCOTUS so states. I'd appreciate both the case, and a direct quote on which I can search.
http://laws.findlaw.com/us/240/103.html
STANTON v. BALTIC MINING CO, 240 U.S. 103 (1916)
The contention is that as the tax here imposed is not on the net product, but in a sense somewhat equivalent to a tax on the gross product of the working of the mine by the corporation, therefore the tax is not within the purview of the 16th Amendment, and consequently it must be treated as a direct tax on property because of its ownership, and as such void for want of apportionment. But, aside from the obvious error of the proposition, intrinsically considered, it manifestly disregards the fact that by the previous ruling it was settled that the provisions of the 16th Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged, and being placed in the category of direct taxation subject to apportionment by a consideration of the sources from which the income was derived,-that is, by testing the tax not by what it was, a tax on income, but by a mistaken theory deduced from the origin or source of the income taxed.
http://laws.findlaw.com/us/240/1.html
BRUSHABER v. UNION PACIFIC R. CO., 240 U.S. 1 (1916)
[T]he contention that the Amendment treats a tax on income as a direct tax although it is relieved from apportionment and is necessarily therefore not subject to the rule of uniformity as such rule only applies to taxes which are not direct, thus destroying the two great classifications which have been recognized and enforced from the beginning, is also wholly without foundation ...
Ergo, the 16th conferred no new tax powers, did not broaden any taxing authority, only classified the income tax as always to be a indirect tax, and did not create any new class of taxation. I believe this covers all the points I made that you wanted SC support for.
#108. To: Neil McIver (#107)
Note further that Pollock was a narrow ruling to begin with and reinforced congress' authroity to levy taxes provided they were direct and apportioned or indirect and uniform. But the 16th amendment broadened that authority to remove the apportionment test on income from any source.
#109. To: Starwind (#108)
I said the 16th amendment prevents income taxes from being subject to the apportionment requirement, regardless of being construed direct or indirect. I did not say or imply the 16th amendment moved income taxes from indirect to direct.
Moreover, your statement (underline mine):
16th merely qualified the income tax as an indirect tax.
is not entirely correct since obviously the purpose of the 16th Amendment as affirmed by both Brushaber and then Stanton was to prevent income taxes (whether sourced from direct ownership or from indirect events/usage) from being subject to the apportionment criteria The 16th Amendment did not merely "qualified the income tax as an indirect tax", it further changed income taxes from being subjected to the apportionment test regardless of their source.
You also excerpted the 2nd sentance from my paragraph, and then took exception to that excerpt:
Note further that Pollock was a narrow ruling to begin with and reinforced congress' authroity to levy taxes provided they were direct and apportioned or indirect and uniform. But the 16th amendment broadened that authority to remove the apportionment test on income from any source.
It did not broaden any authority whatsoever, as it conferred no new powers of taxation. The SC declared that it merely ensured that income taxation was to always be considered an indirect tax and weighed as such with the rule of uniformity, and never to be weighed as a direct tax as a tax upon property requiring apportionment. Again, the SC was plain about this.
Obviously the "authority" to which I referred and to which you excepted refers to the prior sentance wherein I alluded to congress' authority to levy taxes provided they were direct and apportioned or indirect and uniform. My second sentance then said that authority was broadened to remove the apportionment test on income from any source.
But the amendment clearly and indisputably broadened Congress' existing authority to remove the apportionment test on income from any source:
'The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.'
It is clear on the face of this text that it does not purport to confer power to levy income taxes in a generic sense,-an authority already possessed and never questioned, -or to limit and distinguish between one kind of income taxes and another, but that the whole purpose of the Amendment was to relieve all income taxes when imposed from apportionment from a consideration of the source whence the income was derived.
I didn't say the 16th Amendment gave congress new taxation authority, but only the authority to broaden income taxation by removing the apportionment test.
Much of this is the aftermath and debris of your arguing that the 16th Amendment did not overrule Pollock, which position you repeat ...
The author presumed his readership would in fact compare the language of the 16th amendment text against the opinion in Pollock (granted, a lot to presume these days). A review of Brushaber and Stanton rulings (already cited above) reinforces the caselaw viewpoint that the 16th amendment overruled Pollock.
In the above exchange you persist in arguing (your statements in italics) that somehow the author had to support or give evidence that the 16th Amendment expressly permits Congress to tax incomes without apportionment, which the language clearly does, and which SCOTUS affirmed in both Brushaber and Stanton.
You said the 16th Amendment does not authorize anything (it obviously does authorize levying income taxes without regard to source and without applying the apportionment test) and that the 16th Amendment merely confines the power to tax income, which it always had, to the indirect class flies in the face of your argument that Pollock was not overruled by the 16th!
If Pollock were not overruled by the16th Amendment, income taxes would be unconstitutional unapportioned direct taxes.
Well, that wasn't your entire argument. You seem to overlook the specifics of the language of the 16th Amendment, insofar as you invaribly decline to acknowledge that it removed the apportionment tests on income taxes regardless of their source and it doesn't specifically place income taxes into either direct or indirect classes.
Do you agree the 16th amendment removed the requirement to test income taxes, regardless of source, by apportionment?
Do you agree the 16th amendment overrulled Pollock?, If not, what provisions of Pollock are still in effect and as of what date?
#110. To: Neil McIver (#109)
#111. To: Starwind (#110)
Let me preface my remarks by stating for the record my revulsion at the malignant cancer the tax code has become and the way it (in subserviance to the government's indebtness and fiscal irresponsibility) has metastisized through the law and twisted the constitution beyond recognition by the framers. I don't like it. I don't agree with it.
But to prevail against it, one must recognize its strengths as well as weaknesses. It is imperative to understand what the law is as written and enforced.
#112. To: Neil McIver (#111)
One problem with taxing income is defining the word "income" which neither the Constitution nor the tax code ever does.
It may not be worth laboring this matter further.
#113. To: Starwind (#112)
Just to be clear, it is defined.
I will at some point post my thoughts on Banister, as requesed.
#114. To: Neil McIver (#113)
#115. To: Starwind (#114)
You have the last word, I'm really trying to just let this go :)
#116. To: Starwind (#114)
I think your real issue is that the government, law, and courts have always held that human labor has no basis, i.e., its cost to the worker is presumed zero, and hence 100% of what the worker receives as income is not offset by any basis or cost to the worker of doing the work.
But a basis in human capital is yet to be recognized, but the Murphy case I linked above may begin to open a crack in that position.
Well, sincerely Neil, you can stick to that story but it won't change what you'll face in court.
You have the last word, I'm really trying to just let this go :)
#117. To: innieway (#115)
I got in way late in the thread, but I have to throw in my 2¢ worth.
#118. To: Neil McIver (#116)
No, I don't have a court case handy to back me up on that but it should instead be clear by the law of common sense.
#119. To: innieway, Neil McIver, Starwind, all (#115)
#120. To: Neil McIver (#116)
(Edited)
1999 Feb - Banister resigns from IRS
2000 Jan 11 Thompson send copies of prepared '96 '97 '98 returns to Banister
2000 Feb - Mar Thompson/Banister file Thompson's "861" amended returns for '96, '97, '98
2000 April 30 Banister letter to IRS re Disallowance of Thompson '98 amended return
2000 May 25 Banister letter to IRS re Disallowance of Thompson '96 amended return
2000 May 25 Banister letter to IRS re Disallowance of Thompson '98 [sic] amended return
2000 July 21 "all hands" meeting Thompson notifies not withholding payroll taxes
2000 Aug 22-27 Banister/Thompson emails re 1997 disallowance
2000 Aug 27 Banister letter to IRS for due process hearing
2000 Sep 7 Thompson email to Banister re memo for "all hands" meeting
2000 Oct 11 "all hands" meeting Thompson says he'll not withhold, Banister presents his research about not withholding
2000 Sep-Dec Thompson fails to withhold payroll taxes
2001 Thompson fails to withhold payroll taxes
2002 Thompson fails to withhold payroll taxes
2003 Mar 19 IRS begins disbarrment of Banister
2003 Jul 21 Complaint to enjoin Thompson
2003 Sep 12 Thompson enjoined & sanctioned
2004 Aug 11 Thompson previously had violated injunction and orders after being jailed & released twice
2004 Nov 18 Indicted
Count 2 against Thompson - Dec 31, 1996 false return, claimed refund $28,161 (Thompson convicted)
Count 3 against Thompson - DEC 31, 1997 false return claimed refund $39,711 (Thompson convicted)
Count 4 against Thompson - DEC 31, 1998 false return, $0 AGI & $0 due (Thompson convicted)
Count 5 against Banister - DEC 31, 1996 false Thompson return, $0 AGI & $0 due (Banister acquitted)
Count 6 against Banister - DEC 31, 1997 false Thompson return, $0 AGI & $0 due (Banister acquitted)
Count 7 against Banister - DEC 31, 1998 false Thompson return, $0 AGI & $0 due (Banister acquitted)
Count 8 against Thompson - 2000 Sep 30 taxes of $14,965.90 (Thompson convicted)
Count 9 against Thompson - 2000 DEC 31 taxes of $20,930.77 (Thompson convicted)
Count 10 against Thompson - 2001 Mar 31 taxes of $20,378.04 (Thompson convicted)
Count 11 against Thompson - 2001 Jun 30 taxes of $16,724.61 (Thompson convicted)
Count 12 against Thompson - 2001 Sep 30 taxes of $17,898.96 (Thompson convicted)
Count 13 against Thompson - 2001 DEC 31 taxes of $12,857.95 (Thompson convicted)
Count 14 against Thompson - 2002 Mar 31 taxes of $16,788.30 (Thompson convicted)
Count 15 against Thompson - 2002 Jun 30 taxes of $16,902.17 (Thompson convicted)
Count 16 against Thompson - 2002 Sep 30 taxes of $16,890.52 (Thompson convicted)
Count 17 against Thompson - 2002 DEC 31 taxes of $21, 883.06 (Thompson convicted)
2005 Jun 23 Banister acquitted
#121. To: Neil McIver, innieway (#117)
If Star's feeling the same way I do right now then he might just capitulate.
#122. To: Starwind (#120)
In hindsight, what Banister should have done, is carefully seek out a sophisticated, wealthy and receptive client, plan a legal strategy that forces the IRS/ government to rely on legal cites that can be impeached by legal cites/evidence derived from Banister's research, and then builld a "test case" that can get to the Supreme court, assuming the IRS doesn't back out or dodge the bullet.
Thompson's actions when Thompson decided to stop withholding his employee's payroll taxes - failure to withhold is a major, major, major no-no.
Which brings me to my last criticism of Banister. That to date, he's not made his research "Investigating The Federal Income Tax - Preliminary Report" freely available.
I can understand and am sympathetic to Banister's financial situation and his desire to recoup legal expenses. But as a Christian, I am a bit surprised that he doesn't trust God more and just give away his proof and let the chips fall where they may.
#123. To: Neil McIver (#122)
(Edited)
#124. To: Neil McIver (#122)
(Edited)
One of the charges against SAPF in 93 was failure to withhold. SAPF won while admitting that no withholding was being done for the staff.
I've not bought ["Investigating The Federal Income Tax - Preliminary Report"] either. Bill Benson's "The Law that Never Was" also covers the ratification problem with the 16th. ... I've not read that either.
#125. To: noone222 (#119)
-Thomas Paine
#126. To: lodwick (#125)
#127. To: Starwind, Neil McIver (#121)
This is, after all, about what the law does or does not say, and which specific parts are or are not constitutionally enacted and enforced.
#128. To: noone222, Neil McIver, Starwind, innieway, nolu_chan (#119)
(Edited)
The truth is that there isn't any way to pay for something with a debt (note). Legal tender and money are certainly not equals, especially when legal tender fails to extinguish the debt, and perpetual debt requires perpetual service of the interest on that debt. It's a criminal slave system operated against the people of the world by a criminal banking cabal (Central Banks internationally are the same) ... it's that simple. The cabal has conspired with criminals and morons within the government to establish a currency monopoly that is bankrupting the richest nation to have ever operated on planet earth.
#129. To: noone222 (#123)
#130. To: Starwind (#124)
Somewhere along the way I got the impression that you were persuaded/convinced the 16th Amendment was not ratified. Not having read what is purported to be the best research on that theory, on what research do you base your belief, or do I misunderstand your belief as to 16th Amendment ratification?
#131. To: lodwick (#125)
One can argue the finer points of the law until they're blue in the face, and come to any number of conclusions when the law in incomprehensible and legal precedent is artfully worded to confuse not inform,
#132. To: innieway (#127)
"I futher understand that the application withdrawn and all related material will remain part of the records of the Social Security Administration and that this withdrawal will not affect the proper crediting of wages..."
#133. To: christine (#128)
It really is as simple as that. Bill and I met with attorney, John Green, of the Andrew Jackson Society (he's a friend and associate of Edwin Vieira,Jr), yesterday, and one of the things he told us is that John Snow, former Secretary of the Treasury, made the statement that the tax code is incomprehensible (I'd like to see that if anyone can find it). Think of the implications. If he or any of them can't understand it, how then can any of us be expected to? And, that being the case, that means every person now imprisoned for tax evasion etc etc should be freed.
#134. To: Neil McIver, Starwind, TommyTheMadArtist (#132)
(Edited)
That suggests that it would not cancel the number. I mentioned before this might be just to cancel an application for SS payout benefits, not one's number.
So if you've used this, the million FRN question is: have you been able to verify that the SS has purged the SSN they issued you?
#135. To: innieway (#134)
#136. To: Starwind, Neil McIver (#124)
[Neil McIver #122 to Starwind] One of the charges against SAPF in 93 was failure to withhold. SAPF won while admitting that no withholding was being done for the staff.
THE COURT: We are trying to get an understanding of when something belongs to you and when it doesn't. When it belongs to [the SAP Fellowship], so I just want you to try and help me understand that. If you go to the grocery store and you buy Wheaties [with fellowship funds], when is it yours, after you eat it or . . .
The SAP Fellowship is a national organization of American patriots who have joined together to resist the illegal actions of the IRS and other government agencies who would attempt to deceive the public.
. . . only after S.A.P. has determined that a judgment [**11] does exist and that the claimant, to the best of his ability, dragged the plunderers through every agency and court proceedings feasibly possible, using delaying tactics in each and everyone.
. . . only after S.A.P. has determined that the claimant member is actually incarcerated and is given physical proof that said member, to the best of his/her ability, resisted and delayed the tyrants at every step through the criminal investigation and all other agency and court proceedings feasibly possible.
An unincorporated association . . . or other group which has a group name may sue or be sued in the group name on any cause of action affecting the common property, rights and liabilities of the group.
In any cause of action affecting the common property, rights and liabilities of an unincorporated association, or other group which has a recognized group name, a money judgment against the group is enforceable against the assets of the group as an entity, but not against the assets of any member.
#137. To: noone222 (#97)
Nolu ... it's impossible to define the word income with the word income. This phraseology doesn't define income.
INCOME. The gain which proceeds from property, labor, or business; it is applied particularly to individuals; the income of the government is usually called revenue.
http://laws.findlaw.com/us/255/527.html
"The gain derived from capital, from labor, or from both combined,' provided it be understood to include profits gained through sale or conversion of capital assets.' Eisner v. Macomber, 252 U.S. 189, 207 , 40 S. Sup. Ct. 189, 193 (64 L. Ed. 521, 9 A. L. R. 1570).
#138. To: Neil McIver (#103)
http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/51/sections/section%5F1111.html
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 51 - HOMICIDE
Section 1111. Murder Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;
(1) the term "assault" has the same meaning as given that term in section 113;
(A) under the perpetrator's care or control; or
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=26&sec=7201
TITLE 26 - INTERNAL REVENUE CODE
SUBTITLE F - PROCEDURE AND ADMINISTRATION
CHAPTER 75 - CRIMES, OTHER OFFENSES, AND FORFEITURES
SUBCHAPTER A - CRIMES
PART I - GENERAL PROVISIONS
Section 7201. Attempt to evade or defeat tax Link
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