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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
Ping List: *unUsual Suspects*     Subscribe to *unUsual Suspects*
Keywords: Kotmair, Save-A-Patriot Fellowship
Views: 3081
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. Subscribe to *unUsual Suspects*

Post Comment   Private Reply   Ignore Thread  

Begin Trace Mode for Comment # 91.

#2. To: Starwind (#0) (Edited)

Stupid tax-protestors and their schemes

Many of these "stupid tax protestors" are correct in their assertions. They have researched extensively and know the law. That matters not to the government. They can't let this information become known, let them win, and, of course, are going to make examples of them to scare anyone who may be considering not filing. In the courtroom, the judge's totally ignore the law and, worse, insure that the jury never knows it either. Their job is to protect the corrupt system. See Aaron Russo's Freedom To Fascism to see it in practice. Joe Banister and several other former IRS Agents and many in the Tax Honesty Movement are featured in the film.

christine  posted on  2006-12-04   18:53:17 ET  Reply   Untrace   Trace   Private Reply  

Many of these "stupid tax protestors" are correct in their assertions. They have researched extensively and know the law.

The ones I've listed do not. They haven't a clue. They think they do, but they seemingly can not (or will not) read what the law or code says, or understand court procedures, or how tax accounting is done and how accountants are limited and what lawful means are available to reduce tax liabilities. The "stuff" posted on most tax-protestor websites is some of the most assinine "legal" tripe I've read in years.

That matters not to the government. They can't let this information become known, let them win, and, of course, are going to make examples of them to scare anyone who may be considering not filing. In the courtroom, the judge's totally ignore the law.

Judges can be forced to address the law, but defendants have *no* leverage if their own arguments are incorrect or unsubstantiated on the law. Yes, the system is unfair and the government will indeed pull every trick possible. Yes, the government is trying to supress much of the so-called "information" proclaimed by tax-protestors, but not because the government is afraid of it, no. The government is trying to supress it because most of it is just plain wrong and many naive people are being hurt by it as well as tax revenues potentially taking a big hit if some of these illegal schemes were adopted en- mass, and the resulting prosecutions would further clog up the courts, to no good outcome.

There is a reason most tax-protestors represent themselves. They don't listen to their lawyers or accountants and end up postitioning themselves behind a legal eightball which has no legitimate defense, and most competent lawyers won't touch the tax-protestors "arguments" with a ten-foot pole.

It is said don't go into a gunfight armed with a pocket knife. The mistakes happen long before that. If all one understands is pocket knives, one would do well to listen to the advice of professional gunfighters.

Starwind  posted on  2006-12-04   19:10:01 ET  Reply   Untrace   Trace   Private Reply  

the IRS code is not the law.

watch Freedom To Fascism. it addresses everything i said above much better. listen in particular to the testimony of the several former IRS agents and the one female juror of the case featured in the film. btw, you wanna see stupid? look at the former IRS commissioner, whose name escapes me at the moment, Russo interviews.

christine  posted on  2006-12-04   19:21:38 ET  Reply   Untrace   Trace   Private Reply  

the IRS code is not the law.

Laws as passed by Congress are published as Statutes at Large.

The phrasing used by Congress is codified and becomes part of the United States Code. At this stage, it is a positive law as specifically contained in the Statutes at Large. It is Non-Positive law as it is contained in the United States Code. What is in the United States Code should be an accurate reflection of the positive law contained in the Statutes at Large. If there is any variance between the two, the text in the Statutes at Large is the controlling language.

The codified version of the law includes all amendments and revisions. Sometimes Congress acts to adopt the codified version and make it the positive law.

While Title 26 of the United States Code is "non-positive law," that designation does not effect the "legality" of the provision except that any variance with the text appearing in the Statutes at Large would be controlling.

The Internal Revenue Code of 1954 was passed by both houses of Congress as House Resolution 8300, and was signed by President Eisenhower on August 16, 1954, at about 9:45 a.m., becoming Public Law 83-591. The Internal Revenue Code is now known as the "Internal Revenue Code of 1986" as a result of changes made by Public Law 99-514.

The imposition of the Income Tax appears at Title 26, United States Code, Section 1.

Link

--------------------------------------------------------------------------------

United States Code
TITLE 26 - INTERNAL REVENUE CODE
SUBTITLE A - INCOME TAXES
CHAPTER 1 - NORMAL TAXES AND SURTAXES
SUBCHAPTER A - DETERMINATION OF TAX LIABILITY
PART I - TAX ON INDIVIDUALS

--------------------------------------------------------------------------------

U.S. Code as of: 01/22/02
Section 1. Tax imposed

(a) Married individuals filing joint returns and surviving spouses

There is hereby imposed on the taxable income of -

(1) every married individual (as defined in section 7703) who makes a single return jointly with his spouse under section 6013, and

(2) every surviving spouse (as defined in section 2(a)), a tax determined in accordance with the following table:

[snip]

The legislative history of this income tax law is provided below:

Link

Section 1 - Notes

SOURCE

(Aug. 16, 1954, ch. 736, 68A Stat. 5; Pub. L. 88-272, title I, Sec. 111, Feb. 26, 1964, 78 Stat. 19; Pub. L. 89-809, title I, Sec. 103(a)(2), Nov. 13, 1966, 80 Stat. 1550; Pub. L. 91-172, title VIII, Sec. 803(a), Dec. 30, 1969, 83 Stat. 678; Pub. L. 95-30, title I, Sec. 101(a), May 23, 1977, 91 Stat. 127; Pub. L. 95-600, title I, Sec. 101(a), Nov. 6, 1978, 92 Stat. 2767; Pub. L. 97-34, title I, Secs. 101(a), 104(a), Aug. 13, 1981, 95 Stat. 176, 188; Pub. L. 97-448, title I, Sec. 101(a)(3), Jan. 12, 1983, 96 Stat. 2366; Pub. L. 99-514, title I, Sec. 101(a), title III, Sec. 302(a), title XIV, Sec. 1411(a), Oct. 22, 1986, 100 Stat. 2096, 2218, 2714; Pub. L. 100-647, title I, Secs. 1001(a)(3), 1014(e)(1)-(3), (6), (7), title VI, Sec. 6006(a), Nov. 10, 1988, 102 Stat. 3349, 3561, 3562, 3686; Pub. L. 101-239, title VII, Secs. 7811(j)(1), 7816(b), 7831(a), Dec. 19, 1989, 103 Stat. 2411, 2420, 2425; Pub. L. 101-508, title XI, Secs. 11101(a)-(c), (d)(1)(A), (2), 11103(c), 11104(b), Nov. 5, 1990, 104 Stat. 1388-403 to 1388-406, 1388-408; Pub. L. 103-66, title XIII, Secs. 13201(a), (b)(3)(A), (B), 13202(a), 13206(d)(2), Aug. 10, 1993, 107 Stat. 457, 459, 461, 467; Pub. L. 104-188, title I, Sec. 1704(m)(1), (2), Aug. 20, 1996, 110 Stat. 1882, 1883; Pub. L. 105-34, title III, Sec. 311(a), Aug. 5, 1997, 111 Stat. 831; Pub. L. 105-206, title V, Sec. 5001(a)(1)-(4), title VI, Secs. 6005(d)(1), 6007(f)(1), July 22, 1998, 112 Stat. 787, 788, 800, 810; Pub. L. 105-277, div. J, title IV, Sec. 4002(i)(1), (3), Oct. 21, 1998, 112 Stat. 2681-907, 2681-908; Pub. L. 106-554, Sec. 1(a)(7) [title I, Sec. 117(b)(1)], Dec. 21, 2000, 114 Stat. 2763, 2763A-604; Pub. L. 107-16, title I, Sec. 101(a), (c)(1), (2), title III, Secs. 301(c)(1), 302(a), (b), June 7, 2001, 115 Stat. 41, 43, 54; Pub. L. 108-27, title I, Secs. 102(a), (b)(1), 104(a), (b), 105(a), title III, Secs. 301(a)(1), (2)(A), (b)(1), 302(a), (e)(1), May 28, 2003, 117 Stat. 754, 755, 758, 760, 763.)

AMENDMENT OF SECTION

For termination of amendment by sections 107 and 303 of Pub. L. 108-27, see Effective and Termination Dates of 2003 Amendment note below.

For termination of amendment by section 901 of Pub. L. 107-16, see Effective and Termination Dates of 2001 Amendment note below.

REFERENCES IN TEXT

The enactment of this clause, referred to in subsec. (h)(13)(A)(iii), means the date of enactment of Pub. L. 105-206, which was approved July 22, 1998.

AMENDMENTS

2003 - Subsec. (f)(8)(A). Pub. L. 108-27, Secs. 102(b)(1), 107, temporarily substituted "2002" for "2004". See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (f)(8)(B). Pub. L. 108-27, Secs. 102(a), 107, temporarily inserted table item relating to years 2003 and 2004. See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (h)(1)(B). Pub. L. 108-27, Secs. 301(a)(1), 303, temporarily substituted "5 percent (0 percent in the case of taxable years beginning after 2007)" for "10 percent". See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (h)(1)(C). Pub. L. 108-27, Secs. 301(a)(2)(A), 303, temporarily substituted "15 percent" for "20 percent". See Effective and Termination Dates of 2003 Amendment note below. Subsec. (h)(2). Pub. L. 108-27, Secs. 301(b)(1)(A), (B), 303, temporarily redesignated par. (3) as (2) and struck out heading and text of former par. (2). Text read as follows:

"(A) Reduction in 10-percent rate. - In the case of any taxable year beginning after December 31, 2000, the rate under paragraph (1)(B) shall be 8 percent with respect to so much of the amount to which the 10-percent rate would otherwise apply as does not exceed qualified 5-year gain, and 10 percent with respect to the remainder of such amount.

"(B) Reduction in 20-percent rate. - The rate under paragraph (1)(C) shall be 18 percent with respect to so much of the amount to which the 20-percent rate would otherwise apply as does not exceed the lesser of -

"(i) the excess of qualified 5-year gain over the amount of such gain taken into account under subparagraph (A) of this paragraph; or

"(ii) the amount of qualified 5-year gain (determined by taking into account only property the holding period for which begins after December 31, 2000),

and 20 percent with respect to the remainder of such amount. For purposes of determining under the preceding sentence whether the holding period of property begins after December 31, 2000, the holding period of property acquired pursuant to the exercise of an option (or other right or obligation to acquire property) shall include the period such option (or other right or obligation) was held." See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (h)(3). Pub. L. 108-27, Secs. 302(e)(1), 303, temporarily amended heading and text of par. (3) generally. Prior to amendment, text read as follows: "For purposes of this subsection, the term 'adjusted net capital gain' means net capital gain reduced (but not below zero) by the sum of -

"(A) unrecaptured section 1250 gain; and

"(B) 28-percent rate gain." See Effective and Termination Dates of 2003 Amendment note below.

Pub. L. 108-27, Secs. 301(b)(1)(B), 303, temporarily redesignated par. (4) as (3). Former par. (3) temporarily redesignated (2). See Effective and Termination Dates of 2003 Amendment note below. Subsec. (h)(4) to (7). Pub. L. 108-27, Secs. 301(b)(1)(B), 303, temporarily redesignated pars. (5) to (8) as (4) to (7), respectively. Former par. (4) temporarily redesignated (3). See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (h)(8). Pub. L. 108-27, Secs. 301(b)(1)(C), 303, temporarily redesignated par. (10) as (8). Former par. (8) temporarily redesignated (7). See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (h)(9). Pub. L. 108-27, Secs. 301(b)(1)(A), (C), 303, temporarily redesignated par. (11) as (9) and struck out heading and text of former par. (9). Text read as follows: "For purposes of this subsection, the term 'qualified 5-year gain' means the aggregate long-term capital gain from property held for more than 5 years. The determination under the preceding sentence shall be made without regard to collectibles gain, gain described in paragraph (7)(A)(i), and section 1202 gain." See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (h)(10). Pub. L. 108-27, Secs. 301(b)(1)(C), 303, temporarily redesignated par. (12) as (10). Former par. (10) temporarily redesignated (8). See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (h)(11). Pub. L. 108-27, Secs. 302(a), 303, temporarily added par. (11). See Effective and Termination Dates of 2003 Amendment note below.

Pub. L. 108-27, Secs. 301(b)(1)(C), 303, temporarily redesignated par. (11) as (9). See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (h)(12). Pub. L. 108-27, Secs. 301(b)(1)(C), 303, temporarily redesignated par. (12) as (10). See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (i)(1)(B)(i). Pub. L. 108-27, Secs. 104(a), 107, temporarily substituted "($12,000 in the case of taxable years beginning after December 31, 2004, and before January 1, 2008)" for "($12,000 in the case of taxable years beginning before January 1, 2008)". See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (i)(1)(C). Pub. L. 108-27, Secs. 104(b), 107, temporarily amended heading and text of subpar. (C) generally. Text read as follows: "In prescribing the tables under subsection (f) which apply with respect to taxable years beginning in calendar years after 2000 -

"(i) the Secretary shall make no adjustment to the initial bracket amount for any taxable year beginning before January 1, 2009,

"(ii) the cost-of-living adjustment used in making adjustments to the initial bracket amount for any taxable year beginning after December 31, 2008, shall be determined under subsection (f)(3) by substituting '2007' for '1992' in subparagraph (B) thereof, and

"(iii) such adjustment shall not apply to the amount referred to in subparagraph (B)(iii).

If any amount after adjustment under the preceding sentence is not a multiple of $50, such amount shall be rounded to the next lowest multiple of $50." See Effective and Termination Dates of 2003 Amendment note below.

Subsec. (i)(2). Pub. L. 108-27, Secs. 105(a), 107, temporarily amended table generally. Prior to amendment, table read as follows:

DEFINITIONS

Pub. L. 105-277, div. J, title IV, Sec. 4001(a), Oct. 21, 1998, 112 Stat. 2681-906, provided that: "For purposes of this title [amending this section, sections 51, 56, 67, 68, 86, 135, 137, 163, 172, 219, 221, 264, 351, 368, 408A, 469, 873, 954, 2001, 2031, 6015, 6103, 6159, 6311, 6404, 6693, 7421, 7443A, 7491, 9503, and 9510 of this title, and sections 401 and 407 of Title 42, The Public Health and Welfare, enacting provisions set out as notes under this section, sections 51, 67, 68, 86, 172, 833, 6103, and 9503 of this title, and section 401 of Title 42, and amending provisions set out as notes under sections 6601 and 7508A of this title] -

"(1) 1986 code. - The term '1986 Code' means the Internal Revenue Code of 1986.

"(2) 1998 act. - The term '1998 Act' means the Internal Revenue Service Restructuring and Reform Act of 1998 (Public Law 105-206) [see Tables for classification].

"(3) 1997 act. - The term '1997 Act' means the Taxpayer Relief Act of 1997 (Public Law 105-34) [see Tables for classification]."

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2, 3, 15, 23, 24, 25A, 32, 41, 42, 55, 59, 63, 68, 132, 135, 137, 146, 162, 163, 179, 213, 219, 220, 221, 223, 301, 306, 453A, 460, 468B, 511, 512, 513, 584, 641, 646, 685, 691, 702, 774, 854, 857, 871, 876, 877, 891, 904, 911, 936, 962, 1022, 1260, 1291, 1301, 1398, 1446, 2032A, 2503, 2631, 3402, 3406, 4001, 4261, 6014, 6015, 6039F, 6103, 6242, 6323, 6334, 6428, 6601, 6652, 6655, 6867, 7430, 7518, 7519 of this title; title 7 section 940d; title 46 App. section 1177.

Public Law 108-27 of 2003 is linked and quoted in part below:

Link [PDF]

Link [TEXT]

[DOCID: f:publ027.108]

[[Page 751]]

JOBS AND GROWTH TAX RELIEF RECONCILIATION ACT OF 2003

[[Page 117 STAT. 752]]

Public Law 108-27

108th Congress

An Act

To provide for reconciliation pursuant to section 201 of the concurrent resolution on the budget for fiscal year 2004. <>

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, <>

SECTION 1. SHORT TITLE; REFERENCES; TABLE OF CONTENTS.

(a) Short Title.--This <> Act may be cited as the ``Jobs and Growth Tax Relief Reconciliation Act of 2003''.

(b) Amendment of 1986 Code.--Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Internal Revenue Code of 1986.

[snip]

SEC. 102. ACCELERATION OF 15-PERCENT INDIVIDUAL INCOME TAX RATE BRACKET EXPANSION FOR MARRIED TAXPAYERS FILING JOINT RETURNS.

(a) In General.--The table contained in subparagraph (B) of section 1(f )(8) (relating to applicable percentage) <> is amended by inserting before the item relating to 2005 the following new item:

"2003 and 2004............................. 200''.

(b) Conforming Amendments.--

(1) Section 1(f)(8)(A) is amended by striking ``2004'' and inserting ``2002''.

(2) Section 302(c) of the Economic Growth and Tax Relief Reconciliation Act of 2001 <> is amended by striking ``2004'' and inserting ``2002''.

(c) Effective Date.--The <> amendments made by this section shall apply to taxable years beginning after December 31, 2002.

As reflected in the United States Code, 26 USC 1, subparagraph (B) of section 1(f)(8):

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=26&sec=1

(B) Applicable percentage

For purposes of subparagraph (A), the applicable percentage shall be determined in accordance with the following table:
For taxable years beginning..... The applicable
in calendar year - ............. percentage is -
2003 and 2004 .................. 200
2005 ........................... 180
2006 ........................... 187
2007 ........................... 193
2008 and thereafter ............ 200.

The codified version is non-positive law. However, this does not mean that the provision is not positive law. Public Law 108-27 of 2003 IS positive law. All of the other listed Public Laws from which the codified version is derived are equally POSITIVE LAW.

The codified law is a more readable version of the text passed by Congress, with amendments incorporated into the text rather than existing as separate documents. The only time the content of the U.S. Code is not reflective of positive law is when it fails to accurately reflect the text authorized by the original positive law published in the Statutes at Large.

The Tax Law and the Amendments thereto were passed by Congress and enacted as positive law.

The courts have said this:

"Indeed, as we have repeatedly held, the entire Internal Revenue Code was validly enacted by Congress and is fully enforceable." United States v. McDonald, 919 F.2d 146 (10th Cir. 1990); [United States v.] Studley, 783 F.2d [934] at 940 [9th Cir. 1986].

"Congress's failure to enact a title into positive law has only evidentiary significance and does not render the underlying enactment invalid or unenforceable. See 1 U.S.C. § 204(a) (1982), (the text of titles not enacted into positive law is only prima facie evidence of the law itself). Like it or not, the Internal Revenue Code is the law, and the defendants did not violate Ryan's rights by enforcing it." Ryan v. Bilby, 764 F2d 1325, 1328 (9th Cir. 1985).

"The petitioner's argument that the Internal Revenue Code was not enacted by Congress is equally meritless. The Internal Revenue Code of 1954 was enacted by the 83rd Congress on August 16, 1954 (ch. 736, 68A Stat. 3) and has been amended by Congress with some frequency since that time." Urban v. Commissioner, T.C. Memo. 1991-220, affd. per curiam, 964 F.2d 888 (9th Cir. 1992).

The claim that "Title 26 was not enacted into 'positive law,' has been rejected as 'frivolous,' 'baseless,' 'specious,' and 'preposterous.' See United States v. Hooper, No. 93-35565, 1995 WL 792039, at *1 (9th Cir. Dec. 11, 1995) ('frivolous'); United States v. Zuger, 602 F.Supp. 889, 891-92 (D.C.Conn.1984), aff'd, 755 F.2d 915 (2d Cir.) (table), 'specious'); accord, Young v. Internal Revenue Service, 596 F.Supp. 141, 149 (N.D.Ind.1984) ('preposterous'); Sloan v. United States, 621 F.Supp. 1072, 1076 (N.D.Ind.1985), aff'd in part and appeal dismissed, 812 F.2d 1410 (7th Cir.1987) (table) (litigants advancing 'frivolous' arguments such as assertions that the Internal Revenue Code is not positive law subjected to sanctions under Rule 11, FED. R. CIV. P.); Hackett v. Commissioner of Internal Revenue, No. 85-1558, 1986 WL 16862, at *1 (6th Cir. April 21, 1986) (appeal of dismissal of petition challenging tax deficiency assessment describing 'positive law' argument as 'frivolous')." United States v. Maczka, 957 F.Supp. 988, 991 (W.D.Mich. 1996).

"In his opposition, Plaintiff asserts that 'Title 26 U.S.C. (including section 6321) has not been enacted into positive law, and is not the law, but is only prima facie evidence of the law.' ... Congress' failure to enact a title into positive law has only evidentiary significance and does not render the underlying enactment invalid or unenforceable. See 1 U.S.C. section 204(a). 'Like it or not, the Internal Revenue Code is the law'. Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir. 1985); see also United States v. Zuger, 602 F.Supp. 889, 891-92 (D. Conn. 1984)

('holding that the failure of Congress to enact a title as such and in such form into positive law . . . in no way impugns the validity, effect, enforceability, or constitutionality of the laws as contained and set forth in the title'), aff'd. without op., 755 F.2d 915 (2d Cir.), cert. denied, 474 U.S. 805 (1985); Young v. IRS, 596 F.Supp. 141, 149 (N.D.Ind. 1984) (asserting that 'even if Title 26 was not itself enacted into positive law, that does not mean that the laws under the title are null and void'). Plaintiff's positive law argument is without merit." Bilger v. United States, 87 AFTR2d Par. 2001-468, No. CIV F 00-6486 OWW JLO (U.S.D.C. E.D.Ca. 1/9/2001).

nolu_chan  posted on  2006-12-05   5:22:23 ET  Reply   Untrace   Trace   Private Reply  

The claim that "Title 26 was not enacted into 'positive law,' has been rejected as 'frivolous,' 'baseless,' 'specious,' and 'preposterous.'

Clearly, the claim that Title 26 has not been enacted into "positive law" is true. The claim is, therefore, neither frivolous, baseless, specious or preposterous. Whoever composed the annotations should be more accurate in summations.

Neil McIver  posted on  2006-12-05   13:09:19 ET  Reply   Untrace   Trace   Private Reply  

Clearly, the claim that Title 26 has not been enacted into "positive law" is true. The claim is, therefore, neither frivolous, baseless, specious or preposterous. Whoever composed the annotations should be more accurate in summations.

(litigants advancing 'frivolous' arguments such as assertions that the Internal Revenue Code is not positive law subjected to sanctions under Rule 11, FED. R. CIV. P.); Hackett v. Commissioner of Internal Revenue, No. 85-1558, 1986 WL 16862, at *1 (6th Cir. April 21, 1986) (appeal of dismissal of petition challenging tax deficiency assessment describing 'positive law' argument as 'frivolous')." United States v. Maczka, 957 F.Supp. 988, 991 (W.D.Mich. 1996).

Unless the litigant provides a showing that the United States Code is inaccurate in its presentation of the underlying positive law, assertions that the U.S. Code is not positive law are rightfully considered a frivolous waste of the court's time.

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=1&sec=204

United States Code
TITLE 1 - GENERAL PROVISIONS
CHAPTER 3 - CODE OF LAWS OF UNITED STATES AND SUPPLEMENTS; DISTRICT OF COLUMBIA CODE AND SUPPLEMENTS

U.S. Code as of: 01/3/05

Section 204. Codes and Supplements as evidence of the laws of United States and District of Columbia; citation of Codes and Supplements

In all courts, tribunals, and public offices of the United States, at home or abroad, of the District of Columbia, and of each State, Territory, or insular possession of the United States -

(a) United States Code. - The matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and permanent in their nature, in force on the day preceding the commencement of the session following the last session the legislation of which is included: Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.

(b) District of Columbia Code. - The matter set forth in the edition of the Code of the District of Columbia current at any time shall, together with the then current supplement, if any, establish prima facie the laws, general and permanent in their nature, relating to or in force in the District of Columbia on the day preceding the commencement of the session following the last session the legislation of which is included, except such laws as are of application in the District of Columbia by reason of being laws of the United States general and permanent in their nature.

(c) District of Columbia Code; citation. - The Code of the District of Columbia may be cited as "D.C. Code".

(d) Supplements to Codes; citation. - Supplements to the Code of Laws of the United States and to the Code of the District of Columbia may be cited, respectively, as "U.S.C., Sup. ", and "D.C. Code, Sup. ", the blank in each case being filled with Roman figures denoting the number of the supplement.

(e) New edition of Codes; citation. - New editions of each of such codes may be cited, respectively, as "U.S.C., ed.", and "D.C. Code, ed.", the blank in each case being filled with figures denoting the last year the legislation of which is included in whole or in part.

nolu_chan  posted on  2006-12-05   14:03:02 ET  Reply   Untrace   Trace   Private Reply  

Good posts, nolu_chan.

Neil, I alluded somewhere up thread that the purpose of courts was to adjudicate disputes at law between two or more parties.

Aside from constitutional issues, the courts are generally not the place to argue what the law ought to be. They are generally the place to argue whether the law "as-is" was in fact followed or not.

If one does not like the law as-is, one needs to work through congress and elections, constitutional conventions to get the law changed so as to read and mean what one might like it to be. In which case you and Kotmair, et.al. would be appreciative (I assume) that the same court procedures that today weigh the evidence against the law as-is would in the future weigh that evidence against the new law as-is and not as-was or as-might-be.

The point being, ignoring what the law actually is, or imagining one can waltz into court and argue the position that the established law isn't really established, had better be armed to the teeth with substantive filings and proof, to show major errors in how the law was written or enacted, and not mere wishful reinterpretations based on cherry-picking from Black's Law Dictionary and ignoring caselaw, court procedures, regulations and law.

nolu_chan's posts demonstrate the legislative and case history of the tax code and the basis on which courts have previously, ad-nauseum, weighed arguments against the law as-is and found repeatedly that it has the weight of law, and tax-protestors ought simply to get over it and move on to more productive avenues of change.

Kotmair's strategic error was to dismiss that the law as written wasn't applicable to him or his fellowhsip. His tactical error was to go into court ill prepared to argue his strategy.

By ignoring or arguing that somehow Title 26 isn't really law, or to think that courts will continue to entertain such arguments, is to repeat Kotmair's mistakes.

The point of establishing law (what the congress and executive do) is to make known rules by which we all live, whether we agree or not. If we disagree, take it up with the congress. If we don't abide by established law, then expect the courts to narrowly focus on what the law is and what the evidence is compared to the law.

The courts will not (forever) entertain arguments that the law isn't really what the law is, and they will quickly move on to trying the evidence and granting summary judgement.

Starwind  posted on  2006-12-05   14:56:54 ET  Reply   Untrace   Trace   Private Reply  

This page gives a pretty good historical summary of federal taxation.

http://civil-liberties.com/pages/taxationtale.htm

For authoritative law on the subject, the US Constitution is the supreme law of the land and provides for all taxes to be either direct or indirect, each of which comes with its own requirements and restrictions. Case "law" or case "history" as I choose to call it, under the Supreme Court cases of Brushaber vs Union Pacific RR and Stanton vs Baltic Mining, provided that the 16th amendment did not confer upon congress any new power of taxation, but merely qualified the answer to the question of the nature of the income tax as falling into the indirect category. It is not an exception to the direct tax that can be imposed without apportionment, it's instead an indirect tax, an excise to be precise. These cases have never been overturned, but are indeed ignored by today's lower courts.

If you do decide to watch FtF, you'll see an interview with former IRS Comissioner Rosotti who is asked about these SC decisions. I don't recall his exact words, but he says that they simply don't apply anymore, and it's not because they've been overturned because they haven't. It is that particular attitude which the tax-honesty movement encounters both within the courts and in the mainstream. We've all been brought up, myself included, believing that income taxation, as commonly applied, is necessary and essential to preserving freedom and our countries infrastructure, but most of us have never challenged that notion. I no longer believe either to be the case.

nolu_chan's posts demonstrate the legislative and case history of the tax code and the basis on which courts have previously, ad-nauseum, weighed arguments against the law as-is, and found repeatedly that it has the weight of law and tax-protestors ought simply to get over it and move on to more productive avenues of change.

If you are suggesting that we should just forget about the Constitutional provisions re: taxes and the current SC rulings in the Brushaber & Stanton decisions and pretend they don't exist because that is what the lower courts do, then on a pragmatic level, you may be right. But it is not SAPF or Kotmair that is ignoring these precedents. It is the lower courts. If there is a mistake being made by SAPF/Kotmair, it is the notion that meaning of the Constitution cannot change without an amendment, or at the very least, an SC ruling on what it means. And that's a mistake I would stand with him in making.

Neil McIver  posted on  2006-12-05   16:08:39 ET  Reply   Untrace   Trace   Private Reply  

This page gives a pretty good historical summary of federal taxation.

http://civil-liberties.com/pages/taxationtale.htm

From the cited/linked A Fairy Tale of Taxation

1895: In Pollock vs Farmers’ Loan & Trust Co, the Supreme Court rules that general income taxes are unconstitutional because they are unapportioned direct taxes. To this day, the ruling has not been over-turned.

Pollack was nullified by the Sixteenth Amendment to the Constitution.

The matter went back and forth until it was resolved by the Sixteenth Amendment.

Amendment XVI

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.

From American Constitutional Law, Third Edition, Volume One, by Laurence H. Tribe, at page 843:

Article I, § 9, also states that "[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census." Article I, § 2, provides that "direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Num­bers." A direct tax is one imposed upon property as such, rather than on the performance of an act. Because of the impractical apportionment requirement attaching to direct taxes, the fate of federal income taxation in the nineteenth century turned on the content the Supreme Court gave to the distinction between direct and indirect taxes. In Springer v. United States, the Court held a Civil War income tax to be an indirect excise tax. But in Pollock v. Farmers' Loan & Trust Co., a majority of the Justices ruled that, insofar as the source of income is property, an income tax is a direct tax, and is therefore invalid unless apportioned. By 1911, however, the Supreme Court had again reversed direction, holding in Flint v. Stone Tracy Co. that a tax on corporations measured by income was not a direct tax but an excise tax on the privilege of doing business in the corporate form. The confusion was put to an end in 1913 with the ratification of the Sixteenth Amendment, which pro­vides: "Congress shall have power to lay and to collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

[boldface added, footnotes deleted]

From A Practical Companion to the Constitution, by Jethro K. Lieberman, at page 55:

APPORTIONMENT OF TAXES.

* * *

Very early on, the Supreme Court indicated that it would read the clause narrowly. In 1796 the Court sustained a tax on carriages without regard to the census or apportionment, holding that such a tax is an "excise" or "duty," not a direct tax. [1115] But nearly a century later the Supreme Court, against the weight of its precedents, declared that a federal tax on income derived from real estate and personal property was a direct tax, and that the Income Tax Act of 1894 was unconstitutional because it did not apportion. [1887] That decision was overruled by the adoption of the SIXTEENTH AMENDMENT, which expressly permits Contress to tax incomes without apportionment. Since then the Court has not struck down any federal tax as violating the apportionment clause and has upheld several taxes against such a challenge, including the federal estate tax [1687] and the federal gift tax. [284]

[FOOTNOTES abbreviated to show case citation only]

[1115] Hylton v. U.S., 3 U.S. (3 Dall.) 171 (1796)

[1887] Pollack v. Farmer's Loan & Trust Co., 157 U.S. 429 (1895), 158 U.S. 601 (rehearing) (1895).

[1687] New York Trust Co. v. Eisner, 256 U.S. 345 (1921)

[284] Bromley v. McCaughn, 280 U.S. 27 (1928)

From Constitutional Law, Principles and Policies, Second Edition, by Erwin Chemerinsky, at page 270-1:

Direct and Indirect Taxes

Article I, §2, of the Constitution states that "direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers." Article I, §9, provides that "[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census." In its initial cases considering these provisions, the Court narrowly defined what is a direct tax and thus accorded Congress broad authority to impose various kinds of taxes. Under the earlier cases, direct taxes seemed limited to taxes on real property; therefore, all other taxes could be imposed by Congress without concern about apportion­ment among the states. For example, in Hylton v. United States, in 1796, the Court held that a federal tax on carriages was indirect and therefore did not need to be apportioned among the states. [12]

In Veazie Bank v. Fenno, in 1869, the Court upheld the constitutionality of a federal tax on state bank notes. [13] The Court concluded that this was an indirect tax and declared that "direct taxes have been limited to taxes on land and appur­tenances, and taxes on polls, or capitation taxes." [14] The Court repeated this view in Springer v. United States, where the Court upheld the constitutionality of the Civil War Income Tax. [15]

However, in Pollock v. Farmer's Loan & Trust Co., the Court, by a 5 to 4 margin, declared unconstitutional the federal income tax. [16] The Court explained that be­cause the income tax collected revenue gained from property, among other sources, it was a direct tax and had to be apportioned among the states. In 1913, eighteen years after Pollock, the Sixteenth Amendment was ratified to overturn that decision and to allow a federal income tax. The Sixteenth Amendment pro­vides: "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."

The Court eventually abandoned the distinction between direct and indirect taxes. [17] In Flint v. Stone Tracy Co., the Court upheld the Corporation Excise Tax of 1909, which imposed a tax on corporations doing business in states or territories. [18] Similarly, the Court upheld taxes such as those on estates [19] and gifts. [20] The constitutional provisions quoted above, requiring apportionment of direct taxes, seem limited, at most, to taxes on real property. In other words, unless Congress were to create a national property tax, all other taxes are very lokely to be deemed indirect and threfore are constitutional even without apportionment among the states.

[12] 3 U.S. (3Dall.) 171 (1796).

[13] 75 U.S. (8 Wall.) 533 (1869).

[14] Id. at 544.

[15] 102 U.S. (12 Otto) 586, 602 (1880).

[16] 157 U.S. 429 (1895).

[17] But see Eisner v. Macomber, 252 U.S. 189 (1920) (stock dividents are not income prior to their sale or conversion and therefore are not taxable without apportionment).

[18] 220 U.S. 107 (1911)

[19] Bank & Trust Co. of New York v. Eisner, 256 U.S. 345 (1921)

[20] Bromley v. McCaughn, 280 U.S. 124 (1929)

From Constitutional Law, Fourth Edition, by John E. Nowak and Ronald D. Rotunda, at page 188-9:

The sixteenth amendment, which permits imposition of a federal income tax without apportionment among the states, was necessitated by the five to four decision in Pollack v. Farmer's Loan & Trust Co. [2] Forty-two years later, with its decision in New York ex rel. Cohn v. Graves, [3] the Court in effect overruled Pollack and in so doing rendered the sixteenth amendment redundant.

[2] 157 U.S. 429, 15 S.Ct. 673, 39 L.Ed. 759 (initial decision), 158 U.S. 601, 15 S.Ct. 192, 39 L.Ed. 1108 (decision on rehearing) (1895)(t5ax upon income from real and personal property held invalid in the absence of apportionment.)

[3] 300 U.S. 308, 57 C.Ct. 466, 81 L.Ed. 666 (1937) (sustaining New York income tax on income derived by New York resident from New Jersey real estate).

From Constitutional Law, National Power and Federalism, Second Edition, by Christopher N. May and Allan Ides, at page 29:

First, the people may register their disagreement with the Court by amending the Constitution. While this is a difficult feat to accomplish, it has occurred four times in our history. The Eleventh Amendment overturned Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which had allowed a state to be sued in federal court without its consent. The Fourteenth Amendment reversed Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) and its holding that former slaves and their descendants could not be citizens of the United States. The Sixteenth Amendment overturned Pollock v. Farmers' Loan & Trust Co., 157 U.S. 601 (1895), which had barred the federal government from collecting an income tax that was not apportioned among the states. And the Twenty-Sixth Amendment rejected Oregon v. Mitchell, 400 U.S. 112 (1970), which had held that states could deny persons 18 to 21 years old the right to vote in state elections.

From Pollack (rehearing) at 635:

We have considered the act only in respect of the tax on income derived from real estate, and from invested personal property, and have not commented on so much of it as bears on gains or profits from business, privileges, or employments, in view of the instances in which taxation on business, privileges, or employments has assumed the guise of an excise tax and been sustained as such.

From the cited/linked A Fairy Tale of Taxation

January 24, 1916: In Brushaber vs. Union Pacific Railroad, the Supreme Court ruled: that the 16th Amendment doesn’t over-rule the Court’s ruling in the Pollock case which declared general income taxes unconstitutional; The 16th Amendment applies only to gains and profits from commercial and investment activities: The 16th Amendment only applies to excises taxes; The 16th Amendment did not Amend the U.S. Constitution; The 16th Amendment only clarified the federal governments existing authority to create excise taxes without apportionment.

January 24, 1916: In Brushaber vs. Union Pacific Railroad, the Supreme Court ruled: that the 16th Amendment doesn’t over-rule the Court’s ruling in the Pollock case which declared general income taxes unconstitutional;

Pollack did NOT declare general income taxes unconstitutional. Explicitly, Pollack did not even consider anything but tax on income derived from real estate and from invested personal property and explicitly said it did not comment on income from gains or profits from business, privileges, or employments.

From Pollack (rehearing) at 635:

We have considered the act only in respect of the tax on income derived from real estate, and from invested personal property, and have not commented on so much of it as bears on gains or profits from business, privileges, or employments, in view of the instances in which taxation on business, privileges, or employments has assumed the guise of an excise tax and been sustained as such.

The 16th Amendment applies only to gains and profits from commercial and investment activities: The 16th Amendment only applies to excises taxes;

[Sixteenth 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.

The Sixteenth Amendment explicitly authorizes taxes, without apportionment, upon incomes from whatever source derived.

The 16th Amendment did not Amend the U.S. Constitution; The 16th Amendment only clarified the federal governments existing authority to create excise taxes without apportionment.

This author seriously (?) purports that an Amendment to the Constitution did not amend the Constitution. Froot Loops.

From the cited/linked A Fairy Tale of Taxation

1913: With the ratification of the 16th Amendment, Congress creates the federal internal income tax

Brushaber states that the 16th Amendment returned the income tax to an "indirect tax."

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 since the command of the Amendment that all income taxes shall not be subject to apportionment by a consideration of the sources from which the taxed income may be derived forbids the application to such taxes of the rule applied in the Pollock Case by which alone such taxes were removed from the great class of excises, duties, and imposts subject to the rule of uniformity, and were placed under the other or direct class. This must be unless it can be said that although the Constitution, as a result of the Amendment, in express terms excludes the criterion of source of income, that criterion yet remains for the purpose of destroying the classifications of the Constitution by taking an excise out of the class to which it belongs and transferring it to a class in which it cannot be placed consistently with the requirements of the Constitution. Indeed, from another point of view, the Amendment demonstrates that no such purpose was intended, and on the contrary shows that it was drawn with the object of maintaining the limitations of the Constitution and harmonizing their operation. We say this because it is to be observed that although from the date of the Hylton Case, because of statements made in the opinions in that case, it had come to be accepted that direct taxes in the constitutional sense were confined to taxes levied directly on real estate because of its ownership, the Amendment contains nothing repudiation or challenging the ruling in the Pollock Case that the word 'direct' had a broader significance, since it embraced also taxes levied directly on personal property because of its ownership, and therefore the Amendment at least impliedly makes such wider significance a part of the Constitution, - a condition which clearly demonstrates that the purpose was not to change the existing interpretation except to the extent necessary to accomplish the result intended; that is, the prevention of the resort to the sources from which a taxed income was derived in order to cause a direct tax on the income to be a direct tax on the source itself, and thereby to take an income tax out of the class of excises, duties, and imposts, and place it in the class of direct taxes.

Stanton states that the 16th Amendment returned the income tax to an "indirect tax" where it inherently belonged.

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.

nolu_chan  posted on  2006-12-06   7:04:46 ET  Reply   Untrace   Trace   Private Reply  

Pollack was nullified by the Sixteenth Amendment to the Constitution.

I've looked through your cites but found no evidence to support this claim.

From American Constitutional Law, Third Edition, Volume One, by Laurence H. Tribe, at page 843:

In response, there was indeed confusion as to whether the income tax should be considered a direct or indirect tax. The Pollack and Flint cases were in regard to two separate taxes and they came to separate conclusions. There is no dispute here that the 16th amendment clarified that a tax on income was an indirect tax, but that does not mean that the Pollack case was overturned. Independent, non-judicial authors merely claiming such does not carry legal weight and certainly are not up to the standard of SC precedent.

From A Practical Companion to the Constitution, by Jethro K. Lieberman, at page 55:

[...] 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.

Since then the Court has not struck down any federal tax as violating the apportionment clause and has upheld several taxes against such a challenge, including the federal estate tax [1687] and the federal gift tax. [284]

That's perfectly understandable, as the income tax is indirect required to follow the rule of uniformity, and not direct, requiring apportionment. The 16th amendment would have blocked any such challenges.

From Constitutional Law, Principles and Policies, Second Edition, by Erwin Chemerinsky, at page 270-1:

[...] In 1913, eighteen years after Pollock, the Sixteenth Amendment was ratified to overturn that decision and to allow a federal income tax.

This is bunk as, again, there's no support for the claim that the 16th overturned Pollack.

The Court eventually abandoned the distinction between direct and indirect taxes.

This is serious bunk. The Constitution has never lost that distinction, and there's no SC case that supports the claim.

In other words, unless Congress were to create a national property tax, all other taxes are very lokely to be deemed indirect and threfore are constitutional even without apportionment among the states.

Correct, but as an indirect tax, the tax is not upon money, which would be direct, but upon certain activities that might generate the income, as Flint makes clear: "In other words, the tax is imposed upon the doing of business of the character described, and the measure of the tax is to be income..." The money generated is merely the measure by which the tax is computed, and not the subject of the tax itself. The same applies today, such that any income generated outside of a taxable activity is not income taxable. (That is, within the states of the union).

From Constitutional Law, Fourth Edition, by John E. Nowak and Ronald D. Rotunda, at page 188-9:

The sixteenth amendment, which permits imposition of a federal income tax without apportionment among the states,

No, it does not. At least not in the conventional definition of the word "permits". The 16th qualifies the income tax as indirect, and as an indirect, shows that congress always had that power.

...was necessitated by the five to four decision in Pollack v. Farmer's Loan & Trust Co. [2] Forty-two years later, with its decision in New York ex rel. Cohn v. Graves, [3] the Court in effect overruled Pollack and in so doing rendered the sixteenth amendment redundant.

Here's a link to the Graves case: http://supreme.justia.com/u s/300/308/case.html

It had nothing to do with federal taxation. It addressed the question of whether NY could tax someone on income derived from property in NJ. Obviously federal constitutional restrictions on direct/indirect taxation do not apply to states, so the entire case is completely removed from the issue of federal taxation. I challenge you to read it and show me where it says Pollack was overturned.

From Constitutional Law, National Power and Federalism, Second Edition, by Christopher N. May and Allan Ides, at page 29:

The Sixteenth Amendment overturned Pollock v. Farmers' Loan & Trust Co., 157 U.S. 601 (1895), which had barred the federal government from collecting an income tax that was not apportioned among the states.

Bunk. The SC stated that congress always had the power to tax incomes based on the rule of uniformity. The 16th merely clarified that income taxes would always be considered indirect.

[From the tax tale site] January 24, 1916: In Brushaber vs. Union Pacific Railroad, the Supreme Court ruled: that the 16th Amendment doesn’t over-rule the Court’s ruling in the Pollock case which declared general income taxes unconstitutional;

Pollack did NOT declare general income taxes unconstitutional.

On this I'll agree, though it was considered unconstitutional insofar as it was construed as a direct tax without apportionment. I'll take this moment to say that I did not pen the site and do take certain exception to wordings. I offered it as a general summary on the history of income taxation.

The Sixteenth Amendment explicitly authorizes taxes, without apportionment, upon incomes from whatever source derived.

Not true. It 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.

The 16th Amendment did not Amend the U.S. Constitution; The 16th Amendment only clarified the federal governments existing authority to create excise taxes without apportionment.

I agree this is penned incorrectly. Yes it amended the Constitution. Of course it did. What it did not do is grant any new taxing power to congress.

In summary, I don't think any of your numerous citations support the claims that Pollack was overturned or that there is no longer any Constitutional distinction between direct and indirect taxes.

Care to try again?

Neil McIver  posted on  2006-12-06   9:11:55 ET  Reply   Untrace   Trace   Private Reply  

Pollack was nullified by the Sixteenth Amendment to the Constitution.

I've looked through your cites but found no evidence to support this claim.

POLLOCK v. FARMERS' LOAN & TRUST CO., 157 U.S. 429 (1895)

But the acceptance of the rule of apportionment was one of the compromises which made the adoption of the constitution possible, and secured the creation of that dual form of government, so elastic and so strong, which has thus far survived in unabated vigor. If, by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property.

We are of opinion that the law in question, so far as it levies a tax on the rents or income of real estate, is in violation of the constitution, and is invalid.

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.

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.

It is on that basis that the 16th amendment overruled Pollock.

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.

[...] 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.

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.

By the way, I'm sure the preponderance of this kind of literature about the income tax is what plagues the current judicial mindset and goes a long way to explaining why lower court cases go the way they often do. Most have, of course been schooled with such literature.

Oh, I assure you the preponderance of established case law "plagues" the current judicial mindset, and absolutely do lower courts anticipate Appellate and Supreme reviews, as do lawyers and litigants. That is the way the system is supposed to work. The system is not supposed to just keep circling endlessly and repetitously re-arguing established facts anew everytime someone reasserts a discredited belief. It isn't an internet discussion forum.

Our mindsets are supposed to be "plagued" by what has been legislated, ajudicated, written down for all to read. Why, they even go so far as to teach that in law school and drive it home in internships. The hubris.

Would that such an understanding likewise "plague" the tax-protestor mindset, in futile hope they'd do their homework better and stop mucking it up for the rest of us.

Starwind  posted on  2006-12-06   13:18:07 ET  Reply   Untrace   Trace   Private Reply  

Oh, I assure you the preponderance of established case law "plagues" the current judicial mindset, and absolutely do lower courts anticipate Appellate and Supreme reviews, as do lawyers and litigants.

Lower courts rule in error quite often, forcing litigants to feed lawyers whether they win or lose through every appellate level necessary to get it overturned ... usually wearing a defendant out or bankrupting him/her.

Congress doesn't have plenary authority to enslave the populace, but to listen to your arguments one might think so. If congress said tomorrow that they could take every penny you made, would that be Law ?

The term "income" is where the confusion begins because people think their earnings from labor are income and they're not.

noone222  posted on  2006-12-06   13:33:12 ET  Reply   Untrace   Trace   Private Reply  

If congress said tomorrow that they could take every penny you made, would that be Law ?

If they enacated it as law and the Supreme court upheld it, yes it would be Law, wouldn't it. Or did you think it's only Law when you say it is?

The term "income" is where the confusion begins because people think their earnings from labor are income and they're not.

And which part of "The Congress shall have power" ... " to tax incomes, from whatever source" ... "without apportionment ... census or enumeration" do you not get?

Starwind  posted on  2006-12-06   13:44:51 ET  Reply   Untrace   Trace   Private Reply  

(1). If they enacated it as law and the Supreme court upheld it, yes it would be Law, wouldn't it. Or did you think it's only Law when you say it is?

And which part of "The Congress shall have power" ... " to tax incomes, from whatever source" ... "without apportionment ... census or enumeration" do you not get?

(1). If they enacted it, it would be law until the Supreme Court struck it down, which is quite different from your statement because someone negatively impacted by the law would have to have standing and then fight their way through a corrupt court system to the Supreme Court in order to have it heard.

(2). Yes, they can Tax incomes [profit or gain from capital investments] from whatever (taxable) source without apportionment ... the source must be a taxable source, not everything under the sun is a taxable source ... it's like I said earlier, our tax system has never intended to tax every dollar in circulation 20 times ...

Yes, of course, it's only law when I say it is !

I think I asked you earlier if you could state what three things taxes are "imposed" upon, I don't think you responded. If you did I missed it but would be interested to know.

On a different note I'd like for you to express your opinion regarding the 14th Amendment admonishment against the citizens questioning the national debt.

noone222  posted on  2006-12-06   14:10:49 ET  Reply   Untrace   Trace   Private Reply  

If they enacted it, it would be law until the Supreme Court struck it down, which is quite different from your statement

Not all that different. In fact highly controversial laws often sit unenforced because prosecutors know/suspect it may be struck down, and they wait until a test case comes along. But I would have to operate on the presumption it would be upheld, and then if a case could be made for an error, I'd have to litigate.

If for example SCOTUS ruled "Congress shall the right to take every penny made by Starwind" and did not address the uniformity requirement or ruled contra to uniformity, on that basis I might prevail.

Yes, they can Tax incomes [profit or gain from capital investments] from whatever (taxable) source without apportionment ... the source must be a taxable source, not everything under the sun is a taxable source ...

But now you're arguing provisions/deductions of the tax code and you can't very well agree that Amendment 16 can tax your labor-based income, and then proffer a P/L or investment argument that it can't, while simultaneously dismissing Title 26 as law (which law provides the basis for your P/L argument).

I think I asked you earlier if you could state what three things taxes are "imposed" upon, I don't think you responded. If you did I missed it but would be interested to know.

You did ask, I opted not to answer. I see little point in my trying to shoe-horn the entirety of tax law into your expectations.

On a different note I'd like for you to express your opinion regarding the 14th Amendment admonishment against the citizens questioning the national debt.

Similarly, I don't care to reiterate what constitutional scholars have already written which you already have chosen to ignore.

I responded to your post #86, as I had just made the point in my post #85 of the tax-protestor mindset repeatedly ignoring the obvious, which your questions overlooked. It seemed a illustrative opportunity; I was mistaken; it wasn't.

I'm not big on repetition, being misquoted, or ad-hominem inuendo, as that seems to have escaped your notice.

Starwind  posted on  2006-12-06   14:47:15 ET  Reply   Untrace   Trace   Private Reply  

#93. To: Starwind (#91)

You did ask, I opted not to answer. I see little point in my trying to shoe-horn the entirety of tax law into your expectations.

I think you have a gift for sounding intelligent while knowing nothing.

The Income tax is a complex subject and even Judges have difficulty with it.

In an article called Thomas Walter Swan, 57 Yale Law Journal No. 2, 167, 169 (December 1947), Judge Hand wrote:

In my own case the words of such an act as the Income Tax . . . merely dance before my eyes in a meaningless procession: cross-reference to cross-reference, exception upon exception — couched in abstract terms that offer [me] no handle to seize hold of [and that] leave in my mind only a confused sense of some vitally important, but successfully concealed, purport, which it is my duty to extract, but which is within my power, if at all, only after the most inordinate expenditure of time. I know that these monsters are the result of fabulous industry and ingenuity, plugging up this hole and casting out that net, against all possible evasion; yet at times I cannot help recalling a saying of William James about certain passages of Hegel: that they were no doubt written with a passion of rationality; but that one cannot help wondering whether to the reader they have any significance save that the words are strung together with syntactical correctness.

noone222  posted on  2006-12-06 15:04:23 ET  Reply   Untrace   Trace   Private Reply  

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