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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: 3037
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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#1. To: Neil McIver, BTP Holdings, noone222, innieway, wake up, HOUNDDAWG, bluegrass (#0)
(Edited)
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.
Can one legally bail out of the Social Security program?
#2. To: Starwind (#0)
(Edited)
Stupid tax-protestors and their schemes
#3. To: Starwind (#0)
 | This country's priorities are all fucked up. |
#4. To: christine, Starwind (#2)
You can watch the whole thing now on google. http://video.google.com/videoplay?docid=-4312730277175242198&q=Freedom+To+Fascism
See Aaron Russo's Freedom To Fascism
The Subversive Firearms Forums
#5. To: christine (#2)
Wow, check this out woman: America Freedom to Fascism Authorized version All Your Freedoms LLC Over half a million viewings since Oct 20. :)
6547 ratings
All time views: 547,253
1 hr 49 min 28 sec - Oct 20, 2006
http://www.freedomtofascism.com
The Subversive Firearms Forums
#6. To: Starwind (#0) (Edited)
I'd venture to guess that most of these people under estimate the negative impact of having "any" contractual agreement, whether implicit or explicit with "any" legal fiction whether corporate or governmental ... as I notice that most if not all still accept credit cards when transacting business, pay by check, maintain a SSN etc., Most of those mentioned above are also very vocal and provide instruction to others publicly. The most vocal become immediate targets, and like Christine stated ... the courts don't give a shit about the law ... because the Law has no application to slaves that lack "standing" !
Stupid tax-protestors and their schemes just muddy the water for legitimate tax-protest arguments.
"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
#7. To: christine (#2)
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. 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.
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.
(The Gospel of Jesus Christ is the only true good news)
#8. To: Starwind (#0) (Edited)
Actually, Banister's arguments related to the 16th Amendment not being ratified and 5th Amendment prohibition against self-incrimination are weak, if not already struck down in prior cases. He had a good attorney and a jury that was convinced the IRS was lying. Many of these cases are lost because the defendant's are flat broke after the IRS impounds their property and bank accounts. To be honest, cases like Banister's actually muddy the waters ... there is NO LAW that makes one liable for or subject to the tax is the proper argument; however contractual adhesions do make people liable for and subject to the taxes. Edited Note: I think the number of applications to the Postal Service would increase exponentially to the number of IRS Agents shot dead attempting to extort funds.
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.
"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
#9. To: Starwind (#7)
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.
#10. To: TommyTheMadArtist (#3)
Its a grey area. Organizations can setup alternate retirement plans in which one can enroll instead of social security, but the contribution to the alternate plan is still mandatory for all practical purposes, and one is still "in" the social security system, just not contributing to it for the duration of that particular employment (having the optional retirement plan). Some arguments have been proposed (and rejected as I recall) for individuals essentially seeking to "self-insure" on a similar basis as an alternate retirement plan, but because the plans must be federally approved, the requirements mandate more than just one individual squirreling away his own savings. The fool-proof way is to relinquish US citizenship and residency and move to some other country (tax haven), and start over. But upon doing that, there are no easy, approved ways to transfer untaxed earnings or assets out of the US to said tax haven. One must "start over" for all practical purposes. In short there are no legal ways I know of to be a US citizen with US-based assets and income and not pay taxes, and if an individual, not pay some kind of "retirement" setaside (pay-roll tax). But just because I don't know of one, doesn't mean it might not exist. Hence the reason I investigate what I learn about, and my opinion that what I've seen to date is illegal, some of it wildly illegal.
Can one legally bail out of the Social Security program?
(The Gospel of Jesus Christ is the only true good news)
#11. To: christine (#9)
It is a body of regulations and procedures intended by congress to have the weight of law and be construed as law when courts deem it necessary to review. Same as SEC regulations are "law" for how companies do their bookkeeping and stock transactions. I won't argue with you that it is an arcane labrynth in which accountability for enactment and empowerment of the IRS (via the Treasury) is difficult to trace. But that doesn't change the reality of what the tax code is and that it has the weight of law. If it were as simple as tax-protestors delude themselves, companies, accountants, and tax lawyers would be using it like they use every other "loophole". The only way I know to lawfully reduce tax liabilities is through common law establishment of trusts and foundations, but they have to be setup and correctly operated similar to a corporation's transactions being at "arms length" from its CEO and shareholders' personal finances. But the benefits to the individual (grantor) are one-time and the distributions to beneficiaries are taxable, as is any investment income the trust or foundation might subsequently have. I've seen numerous tax-protestors who claim to be able to prove the law isn't the law, and every single one of them is grossly ignorant of how courts understand the law. Reading a law dictionary and arguing specious definitions of legal terms of art, or arguing non-existant precedents, and ignoring opposing motions and court orders is the pocket knife in the gun fight.
the IRS code is not the law.
(The Gospel of Jesus Christ is the only true good news)
#12. To: Starwind (#11)
Have you watched Freedom To Fascism? If not, will you?
#13. To: Dempsy (#12)
No. No. But I will read and study any written legal argument that it purports to make, provided it cites the statutes and laws it deems unapplicable and makes the legal arguments one would use in court and the accounting principals to be used in any filings.... ie, a legal brief of any length I would gladly read, but no I won't expend the time taking notes from a movie or video. If it is as legitimate and portentious as a lawful invalidation of the tax code, it's authors need to simply state it in plain writing, as do most scholars when they document some finding (in law, science, archeology, etc...). Some of us still read and prefer the certainty and clarity of a well composed legal argument.
Have you watched Freedom To Fascism?
If not, will you?
(The Gospel of Jesus Christ is the only true good news)
#14. To: Starwind (#11)
Here's the link to Bannister's site where he's posted all the information - especially interesting is one juror's summation of why he was acquitted of all charges - apologizes for not being able to link directly to that page.
-Thomas Paine
#15. To: Starwind (#13)
Have you watched Freedom To Fascism? No. If not, will you? No. Exhibit A, your honor. A closed mind.
#16. To: Starwind (#11)
you make some good points, but here is where you and i differ. you seem to think that an individual will get a fair shake, whereas, i don't believe for one moment that this is an issue where those "protesting" will ever be allowed a level playing field. the courts are not Article III courts. they are not for we the people. it's the job of the judges to protect the system and not our rights.
#17. To: Dempsy (#15)
No. Exhibit B your honor. Deliberate and willful ignoring what was written in a self-serving intellectually dishonest argument. Classic tax-protestor argumentation - get out the round-end scissors and snip away any inconvenient words.
But I will read and study any written legal argument that it purports to make, provided it cites the statutes and laws it deems unapplicable and makes the legal arguments one would use in court and the accounting principals to be used in any filings.... ie, a legal brief of any length I would gladly read, but no I won't expend the time taking notes from a movie or video. If it is as legitimate and portentious as a lawful invalidation of the tax code, it's authors need to simply state it in plain writing, as do most scholars when they document some finding (in law, science, archeology, etc...). Exhibit A, your honor. A closed mind.
(The Gospel of Jesus Christ is the only true good news)
#18. To: lodwick (#14) (Edited)
I've periodically been to Banister's site, and I followed his case. He was aquitted not because the law was invalid but because he never violated the law. He didn't do what he was accused of doing. He never gave advice to not pay taxes or file improperly. He was unjustly accused because of his association with Larken Rose (IIRC). Correction: not Rose, but Walter Thompson. His case was not about tax law, but about what Banister actually *never* said. I don't know that anything new has happened but I'll look again.
(The Gospel of Jesus Christ is the only true good news)
#19. To: Starwind (#13)
IIRC, you dismissed Mearsheimer and Walt's scholarly work because it didn't comport with your religious beliefs, so really, what would you know?
as do most scholars when they document some finding
#20. To: Dempsy (#19)
Exhibit C, your honor. Faulty memory, and unsubstantiated claims. Move for summary judgement.
IIRC, you dismissed Mearsheimer and Walt's scholarly work because it didn't comport with your religious beliefs, so really, what would you know?
(The Gospel of Jesus Christ is the only true good news)
#21. To: Starwind (#18)
Look for the part where any goob document is supposed to have some sort of filing(?) number on it, and none of the IRS documents have this number - that was the key to this case.
I don't that anything new has happened but I'll look again.
-Thomas Paine
#22. To: TommyTheMadArtist (#3)
1st ... can one be expected to subject their children to a lifetime of feudal serfdom in an allegedly free country ? I say no, but that's exactly what we do when we sign them up at the hospital. The IRS readily admits that they cannot collect the income tax from people without SSN's ... and one must ask why ? It's because you haven't accepted the "promised" benefits of SSN (retirement/medical) nor have you volunteered into their "INSURANCE" program. You asked if one could "bail out" of SS. I have, and I have a SS-521 form that is Stamped by the SS Administration, Dated, and signed by the SS Administrator that states I have no record with the SS Administration even though I had received a SSN as a child. I formally expatriated from the Federal Government, and made numerous Constructive Notices to all federal agancies concerned with my withdrawal from SS. I rescinded, canceled, terminated and removed all signatures on all documentation that bound me contractually with any legal fiction such as government entities, banks, and other corporations. These entities were all properly noticed as well. I placed Notices in Newspapers for the appropriate amount of time required for legal notice, on top of the written Constructive Notices sent to all State and Federal Agencies. I made it very certain and obvious that I wouldn't associate with murdering scum for the conveniences provided by them. I also forfeited the many years of funds that I had "contributed". [They use this term (Contributions) so you know it's voluntary. I do no business other than that which is private. And even though I have this documentation I don't trust the government. I loathe the U.S. government, and have done just fine without them for almost 20 years now. I did it for Biblical reasons, not the money. And even though I'm not a holy roller, there isn't anything more prohibited by scripture in my opinion than worshipping the State through its MARK. Many people find it too difficult to cut the umbilical cord and for good reasons too. I just got to the point where I couldn't take anymore of their fraud, and made every attempt to state my position openly. I think I have been protected by the true authority of this universe because I have operated in good faith for the right reasons. If it's just about the money ... you'll have a hard time sticking with it.
Can one legally bail out of the Social Security program?
"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
#23. To: Starwind (#13)
Oh, you mean lawyers and accountants?
Some of us still read and prefer the certainty and clarity of a well composed legal argument.
The Subversive Firearms Forums
#24. To: Critter (#23)
Well, them and we litigants who pay them for their advice. I like to understand on what legal basis I'm betting my ass(ets).
Oh, you mean lawyers and accountants?
(The Gospel of Jesus Christ is the only true good news)
#25. To: Starwind (#17)
I noticed your tagline and thought you should be more aware of the number one tax protester to ever walk the earth ! (Of course they crucified him ... and they're still at it 2000 years later. What did Jesus tell Peter at the house after they had passed through the gate at Capernum. [You'll recall he had Peter go get a coin out of a fishes mouth to pay the "tribute" collector, so as not to piss him off. But when Peter and Jesus arrived at the house, Jesus prevented Peter at the door, and asked him "Peter, from whom do the kings of nations collect tribute, the "children" or the "STRANGER" ... to which Peter replied, ahh yes Lord the stranger.] Taxes are in fact a penalty applied to those receiving a government "PRIVILEGE" , and the reason for Jesus admonition to Peter was to remind him that the birthright of the children wasn't taxable while the privilege of citizenship to the stranger subjected them to taxation. When people get a SSN they are "swearing under oath" that they are FEDERAL CITIZENS ... A Viet Cong or Iraqi Expatriat is a FEDERAL CITIZEN, not someone born in America. It's a fucking fraud from A-Z ... Check out Luke 22:25 where Jesus states that you shouldn't be obligated to a benefactor ... exactly what SS does to you ... it makes the govt. your benefactor ... so who you gonna believe, Jesus or Uncle Sambo ???
(The Gospel of Jesus Christ is the only true good news)
"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
#26. To: christine, Starwind (#9)
Title 26 has never been passed into positive law ... you are correct. It is nothing more than prima facia law. I'm mystified when someone has a tagline that implies faith in Christ's truth but when it comes down to the nut cuttin that person shit cans Christ and resorts to lawyers and weasel worded statutory fraud. Hypocrisy !
the IRS code is not the law.
"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
#27. To: Starwind (#20)
Speaking of unsubstantiated claims ... Provide the Law that makes anyone liable for or subject to this thing called the income tax. then if you can answer the above ... Name the 3 things taxes are imposed upon and how the tax is to be collected ... legally. [Hint: Direct taxes are apportioned and indirect taxes must be uniform]. C'mon let's play !
unsubstantiated claims.
"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
#28. To: Starwind (#0)
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. I knew there was some reason I liked you. Well-reasoned as always.
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.
The national nightmare has ended... Now begins two years of watching the Congress play "Kick the Gimp".
#29. To: Starwind (#11)
(2). The only way I know to lawfully reduce tax liabilities is through common law establishment of trusts and foundations, but they have to be setup and correctly operated similar to a corporation's transactions being at "arms length" from its CEO and shareholders' personal finances. But the benefits to the individual (grantor) are one-time and the distributions to beneficiaries are taxable, as is any investment income the trust or foundation might subsequently have. (3). I've seen numerous tax-protestors who claim to be able to prove the law isn't the law, and every single one of them is grossly ignorant of how courts understand the law. (4). Reading a law dictionary and arguing specious definitions of legal terms of art, or arguing non-existant precedents, and ignoring opposing motions and court orders is the pocket knife in the gun fight. (5). (The Gospel of Jesus Christ is the only true good news) (1). Corporations are liable for the tax as they are creations of the State and operate under authorization of their creator, accountants and lawyers are lying thieves that profit from their complicity. The labyrinth is the "code", a weasel worded secret code only meant to be understood by the clapping seals employed for that purpose by the government. Truly the American way. (2). Common Law Trusts that invite a lawyer into their presence become statutory trusts and are worthless. Common Law Trusts have a "Creator" not a "Grantor" ... Grantor's are statutory entities. (3). The Law is for the people to understand that's why there are laws regulating statutory construction and ambiguous statutes are ruled unconstitutional. (b). Show me the law that you say tax protestors claim doesn't exist ... (4). When the courts are unable to address the legal definitions as stated in their own laws we have tyranny of the judiciary, not ignorant protestors that only wish the law to be defined and not re-interpreted case by case. When Jesus said "render unto Caesar what is Caesar's" ... Most people thought "EVERYTHING" belonged to him, and Jesus was disputing that notion, much like today, when the government would have us believe that every dollar and every transaction is to be taxed.
(1). I won't argue with you that it is an arcane labrynth in which accountability for enactment and empowerment of the IRS (via the Treasury) is difficult to trace. But that doesn't change the reality of what the tax code is and that it has the weight of law. If it were as simple as tax-protestors delude themselves, companies, accountants, and tax lawyers would be using it like they use every other "loophole".
"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
#30. To: Starwind, All (#0)
First and foremost, to the best of my knowledge, as of this writing, neither John Kotmair nor SAPF's attorney have been served notice of any order. Until we are served, there's not much we can say about it. I think it's quite interesting that the DOJ might have made such an annoucement prior to SAPF being served. I can state that neither John Kotmair nor SAPF has ever "advised" people of what they can and cannot do with regard to taxes. It is perfectly legal to tell others what the law says so long as any listeners make their own decisions as to how the law applies to them and what it requires them to do. It's long known that congress has made dispensing such advice about what the law requires specific people to do a licensable privilege, just as they've made many other things into privileges. The caution against giving advice has been prominent for the entire time I've been with SAPF, and it is simply not done. If the legal action referred to is the civil suit instigated by the DOJ, I fail to see why SAPF should not have continued activities it's conducted since 1984 prior to a resolution in the suit. Starwind, I'm surprised to hear you claim this. You are aware, aren't you, that John Kotmair/SAPF defeated the IRS in their criminal case in 1993-96? The IRS raided the fellowship headquarters in full military/swat-team style and took everything that wasn't nailed down. They were subsequently ordered to bring it all back, which they did. Because they lost that case -- with prejudice, and that at their own motion -- they could not take any criminal action against the fellowship. That is why this time it was a civil case. I will say that I agree that false arguments do muddy waters for those arguing legitimately, and that has been lamented with regard to others in the past. But please share what legitimate tax-protest argument it is you subscribe to. For the record, there is a framed sign hanging in the lobby of SAPF's office which informs the reader that SAPF's interest is not in protesting any tax, but only insists on proper application of the current tax law. Becaues it does not protest any tax, lawful or otherwise and it is not a tax-protest organization and does not advance any tax protest arguments. Yes, Joe Banister won his case but I'm not even sure how his position in taxes is that much different from SAPF's. He does emphasize the fact that the 16th wasn't properly radified which SAPF doesn't care about but beyond that??? The courts pretty much claimed the matter was out of their jurisdiction.
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.
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.
#31. To: christine (#2)
So it would seem. This particular case does not even involve a jury.
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.
#32. To: Starwind (#7) (Edited)
That's got nothing to do with whether the argument is sound or not. It has to do with how the court will receive it. Attorneys are beholden to the courts. Judges can revoke their license to represent clients if they get out of line, so yes, you're correct that many won't touch them with a 10 foot pole. Can you name any other reason why they wouldn't touch it? So what if it's a kooky argument. If I'm an attorney and my client wants to argue that the sky is green, why would/should I run away from doing what he's paying me to do? Answer: Judges will get mad at me if I do. Now how legitimate is that? Sure they won't touch it with a 10-foot pole, which is a strong enough case itself that the judicial system is busted. Isn't it?
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.
#33. To: christine (#9)
Well, it's not been enacted into "positive law" but that's not very significant. At least in my book. It is a compilation of segments of public laws that reference taxation. Enacting into Positive law would mean piking up the IRS code and running it through congress as a bill. Only about about half of the 50 titles that make up the US Code have been enacted into positive law. If one wanted to, one could object to the IRS Code, at which they would be tasked with referencing all the public laws that make up the code. That would be like referencing all the nations papers for the sports sections of each instead of just picking up a single 2006 sports almanac at the local bookstore.
the IRS code is not the law.
#34. To: Neil McIver (#32)
not to mention they themselves are likely to be targeted/audited by the IRS. the IRS strikes fear into the heart of every man. only the most courageous, those like John Kotmair and all those featured in Freedom To Fascism, dare to fight them.
Attorneys
#35. To: Starwind (#11)
There's definitely truth here. Courts will "understand" law in very strange ways.
I've seen numerous tax-protestors who claim to be able to prove the law isn't the law, and every single one of them is grossly ignorant of how courts understand the law.
#36. To: Neil McIver (#32)
I am not aware of judges having the power to revoke the license of an attorney appearing before them. Judges can certainly file complaints with the ethics tribunal.
Judges can revoke their license to represent clients if they get out of line, so yes, you're correct that many won't touch them with a 10 foot pole.
#37. To: Starwind (#13)
I gotta agree this is disingenuous, Star. It costs you nothing as it's on the net and might explain why it's not a matter of shouting "Eureka" and announcing your find to the world. Galileo learned the earth wasn't the center of the universe, declared it and was ostricized for it and waited 300 years until well after our first moon landing for an apology from the church. It's a similar thing with the nature of the income tax. Please watch FtF and you'll find it revealing. No need for that.
No.
but no I won't expend the time taking notes from a movie or video.
#38. To: Starwind (#11)
Just asking: Could you point me in some direction concerning this, ie, "proper setup?" Thanks.
The only way I know to lawfully reduce tax liabilities is through common law establishment of trusts and foundations, but they have to be setup and correctly...
I just want you to know that, when we talk about war, we're really talking about peace. — George W. Bush, June 18, 2002, 10:30 A.M. EDT
#39. To: Neil McIver, Starwind (#35)
mmmmhmmmm. the law is what that particular judge says it is....and don't dare question it, boy. (i been in texas too long ;)
Courts will "understand" law in very strange ways.
#40. To: noone222 (#22)
Good rant, noone. How did you get the 521 form?
#41. To: Neil McIver, Starwindbag (#32)
Most people that enter upon the tax issue and investiagte it don't trust lawyers and are willing to defend themselves rather than be sold out by a crooked pettifogger. Some of these people are more informed than the lawyers and accountants that have been trained to grease the wheels of justice, regardless of the law. Usually, the lawyer's and accountant's concern is their license to steal from the public, and the Judge's ass they must kiss to keep it. While I don't agree with Schiff, I do admire his intestinal fortitude and relentless pursuit of truth ... which is the last thing that can be extracted from our courts.
There is a reason most tax-protestors represent themselves.
"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
#42. To: Neil McIver (#40)
I printed it out off of the internet and filled it out. (I had already filed voluminous Notices etc., years before, but I wanted to be certain that I was out). The form I filled out asked for my reasons to terminate SS. My reasons were (1) Deceptive Trade Practices, (2). Commercial Fraud, and (3). Mark of the Beast. I submitted it to SS to be filed in my record ... but I didn't have a record anymore. I did the Phil Marsh program and then some. Marsh was later attacked and they confiscated all of his computers etc., and I got a call from the U.S. Atty asking me to snitch Marsh off. The U.S. Atty told me how bad I'd been fucked by Marsh and that he'd get me some of my money back if I'd turn State's witness against Marsh. I told that scumbag that even if Marsh was wrong, he was right as far as I was concerned, and it sounded to me like he was fishing. I hung up and never heard from him again. Marsh ended up being convicted on one of 47 counts against him ... mail fraud. Nothing to do with taxes.
How did you get the 521 form?
"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
#43. To: Neil McIver, noone222 (#40) (Edited)
I've got one here myself. I have yet to fill it out and send it in. Waiting for the opportune moment I suppose. BTW, I will send a copy of it to anyone who wants one. Send a PM and I will send my mailing address. All I ask for is a stamped, self-addressed #10 envelope to save me postage. I got this copy simply by walking into the SS office and asking for one. The kind fellow at the counter went and got it for me from the back room. Later, I had thought I lost it and figured I would go and get another. It was a totally different story this time around. When I asked for a 521 form, the woman at the counter went to the same back room and got one. She made a stop on the walk back up front and got her stupidvisor to come with her. When they got up to the counter, the woman asked my what I wanted with this form (all the while clutching it tightly to her bosom). I told her (with about 20 sheeple sitting out in the lobby listening) I wanted it so I could opt out of the system. She said (still clutching the form tightly), "Sir, do you know what this form is?" I told her I sure did and let me have it since I wanted to get out of the system and did not want benefits. She refused outright, "You can't have this." I told her, "I know what I want so give that to me now." She refused again. I said aloud at the point, "Well, I guess we all know you've got something to hide from people." I turned and walked out and not a word was uttered from anyone who witnessed the exchange. If I did something like this today with these rent-a-cops for homeland security sitting in every one of these joints they would have me under the gun as a t'rrist, no doubt about it. And I would tell them go ahead and shoot. Better to die on my feet than live on my knees. ;0)
How did you get the 521 form?
"It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages." Thomas Jefferson to John Taylor, 1798
#44. To: BTP Holdings (#43)
That's funny ... the forms are on the internet in pdf form and you can print them out.
"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
#45. To: Neil McIver (#30)
I'm puzzled to see you write "we", as if you are a party to the action against Kotmair and SAPF, and as if you yourself expect to be served???? As for the facts of the injunction, it's over, stick a fork in it. The order, injunction and opinion were all filed by Judge Nickerson 11/29/06 (I've read them - they're available on the court website https:// ecf.mdd.uscourts.gov/cgi-bin/iqquerymenu.pl?130431 select History/ Documents... then select doc #s 68, 69 & 70 - you'll need a pacer account which anyone can register and receive, these are public records) with instructions to the clerk to transmit copies to all counsel of record. I'm sure Kotmair knew this on the 29th and has received the clerks transmitted copies as of today. I'm a bit skeptical that his website doesn't show any of the 37 filings that have been made since 5/16/06. I don't actually know what the facts are. I'd have to go pull the docs on that case as well (perhaps I might). But what Kotmair has posted and referred to as: is disingenuous as the posted signature pages of two filings from that case don't show any such declaration or finding of legality. Just that the case is being dismissed with prejudice - that is not a finding on the merits. The case it seems was withdrawn by the government as the IRS (in a botched raid) botched the case. But the tax issues themselves were not litigated or adjudicated. And obviously, even if they were dispensing valid legal tax advice or operating legally as of 1995, that doesn't mean that they remained so in the last 10 years. Well Kotmair (and SAPF) failed to dispute the government's case and it seems was non-responsive and frivolous to the discovery filings, on which basis the judge granted summary judgment to the government. Avoiding summary judgement is lawyering 101 - there is no excuse (assuming Kotmair had a case to make). Though I've not read all 70 documents, it appears Kotmair/SAPF failed to comply with the trial judges rulings on discovery and was uncooperative in general, and the case then reverted from the assigned trial judge back to district court to Nickerson for disposition, where again Kotmair seems to have lost every motion and appeal, I would assume, for continuing to be non-responsive (or frivolous) to discovery and motions. I might be more sympathetic to Kotmair's side of the debacle if he were more forthcoming in presenting his refutation of the judges rulings, but he stopped posting filings with doc #33 on 5/16/06. The record was not sealed and they are public findings. While Kotmair is not obligated to post them, one has to wonder why he stopped posting them as his defense was disintegrating. In view of what I have read (and past observations of similar fiascos), I'm inclined to accept the judges viewpoint at face value.
First and foremost, to the best of my knowledge, as of this writing, neither John Kotmair nor SAPF's attorney have been served notice of any order. Until we are served, there's not much we can say about it. I think it's quite interesting that the DOJ might have made such an annoucement prior to SAPF being served.
You are aware, aren't you, that John Kotmair/SAPF defeated the IRS in their criminal case in 1993-96? The IRS raided the fellowship headquarters in full military/swat-team style and took everything that wasn't nailed down. They were subsequently ordered to bring it all back, which they did. Because they lost that case -- with prejudice, and that at their own motion -- they could not take any criminal action against the fellowship.
"If the court declared the Fellowship's operation legal in 1996, it must certainly be legal in 2005. If the IRS could not find any criminal activity in 1993 and 1994, while they had all of our computers and paper files, surely they would not find any today."
For the record, there is a framed sign hanging in the lobby of SAPF's office which informs the reader that SAPF's interest is not in protesting any tax, but only insists on proper application of the current tax law. Becaues it does not protest any tax, lawful or otherwise and it is not a tax-protest organization and does not advance any tax protest arguments.
(The Gospel of Jesus Christ is the only true good news)
#46. To: Neil McIver (#32)
Firstly, because, there are many other litigants waiting in line to get their day in court with legitimate complaints against insurance companies, wall- street robber barrons, check bouncers, dead-beat dads, etc, and you think they should cool their heels while some moron fritters away everyones' time, and taxpayers foot the bill for expanding/juggling the court system?. Secondly, the purpose of courts is to adjudicate points or interpretations of *established* law between two or more parties. It is *not* a sandbox for contentious/litiguous people to invent new "law". Nor do you get to "filibuster" or hold your breath and stamp your feet in a courtroom. Time is of the essence. Justice delayed is justice denied.
So what if it's a kooky argument. If I'm an attorney and my client wants to argue that the sky is green, why would/should I run away from doing what he's paying me to do? Answer: Judges will get mad at me if I do. Now how legitimate is that?
(The Gospel of Jesus Christ is the only true good news)
#47. To: Neil McIver (#37)
This isn't like WTC collapses or 747's (or lack thereof) flying into the Pentagon where visual evidence is pivotal. No, this is simple, straight forward legal argumentation, best proffered in writing with cites. If the key points are there to be viewed, why haven't they been made in court? If they've been made in court, I've likley read them already and they've not been upheld. You know perfectly well, I'm open to considering a new argument, I'm just not opne to wasting time "watching" someone talk about it. If an agrument can be made, then make it and shut me up. I don't care to spend time viewing and re-viewing a video searching for some nugget of legal tax argument that I've not heard yet. I said I'd gladly read a written brief. Anyone who is serious about prevailing over the IRS writes and vets their argument. A written argument is not too much to expect in litigation - but then maybe that's why most (except Banister) keep getting their asses handed to them. Now if they could just get the judge to watch youtube instead.
I gotta agree this is disingenuous, Star. It costs you nothing as it's on the net and might explain why it's not a matter of shouting "Eureka" and announcing your find to the world.
(The Gospel of Jesus Christ is the only true good news)
#48. To: rack42 (#38)
You want to investigate irrevocable pure-equity holder trusts or charitable foundations. Circumstances dictate which to choose (and how many). I don't know any website or lawfirm to recommend. The trust library at BYU is very useful. You'll need very competant accounting and legal advice as well as careful selection of trustees and trust/foundation managers. You are essentially giving your money away to someone else to manage for the benefit of your chosen beneficaries. The key to the one-time tax benefit is that trust is funded via an exchange of "shares" for whatever asset it is given. The shares then have a recognized but unrealized value equal to the corpus, hence the transaction is at arms length and no taxable benefit was transferred. The shares entitle the holder to receive distributions from the trust's corpus, *if* the trustees so vote. But you can't be one of the trustees. The trustees shouldbe 50% blood related (who ostensibly look out for your interests) and 50% independent (or adverse) to maintain the trusts impartiality from you. Charitable foundations are less complicated to fund, but you must give away 5% of its assets each year for the foundations charitable purpose to eliminate tax liability. Again, you can't be the charitable purpose, but you can be the paid manager who oversees the giving. Setting up trusts or foundations is similar to setting up a C-corp, in that "articles" are drawn up that describe the trusts purpose and management. These articles provide for replacement of trustees, listings of beneficiaries, and the wishes of the founder. But unlike corporations, th etrust is essentially a contract under common law between the founder and the trustees to operate the trust and invest and distribute the trusts assests among the beneficiaries from time to time as the trustees deem appropriate. It is irrevocable and the founder has no control other than the provisions of the trust articles and selection of trustworthy and competant trustees. With both, the transactions of the trust or foundation must not be intermingled with your own finances (must be kept separate at arms length, like a corporation) and any payments to you as manager or consultant will be scrutinized and must be reasonable. For example a trust can't pay you 50% of its assets as a "managment fee" - that will invite IRS scrutiny and invalidation. The above is essentially the kind of trusts/foundations setup by the Rockefellers, Carnegies, Morgans, etc and Hewletts & Packards, Bill & Melinda Gates foundations. They do it as a means to lawfully reduce tax liabilities on their "extra" cash and provide support to their respective heirs, or "give back to the community" (lol). They don't do it to keep their money for themselves and avoid taxes.
Just asking: Could you point me in some direction concerning this, ie, "proper setup?"
(The Gospel of Jesus Christ is the only true good news)
#49. To: christine (#34)
not to mention they themselves are likely to be targeted/audited by the IRS. the IRS strikes fear into the heart of every man. only the most courageous, those like John Kotmair and all those featured in Freedom To Fascism, dare to fight them. It is undeniable that a general fear of the IRS blankets the entire country. That's because it's the one entity above all others that has such unfettered access to our personal lives, even beyond no-fly lists and driver licenses. Why it is that in a so-called free country, we are expected to share something so intimate as our own personal finances -- things we would never dream of sharing with even our own siblings -- with the US Government bohemoth is beyond me.
#50. To: DeaconBenjamin (#36)
That's my understanding, though I'll admit to not having proof of that. I've heard it said before and never challenged. I'm open to correction.
I am not aware of judges having the power to revoke the license of an attorney appearing before them. Judges can certainly file complaints with the ethics tribunal.
#51. To: noone222 (#42)
I thought the 521 was for terminating SS "benefits", which might be (are?) referring to payouts, as in, if you want to stop getting SS checks, you filled it out and they stopped sending it to you. It really calls for an OMB number check against the regs to see why the form was created.
#52. To: Starwind (#45)
I am a member of SAPF, as as a member, I believe I'm technically party to the suit even though I've not be served so much as a scribbled-upon napkin. I'm sure you're conveying what the web site says, but the fact remains that it's required that we be served and my latest info is we have not. I'm sure there will be an appeal and, if rumors are true as to its content, maybe some clarification on the order as well. I'll ask the webmaster about that, though the front page says it was last update on 9/12/06. Might be a case of them being posted but missing links on the page. There was a formal decision by a judge (Garbis) and SAPF won. The IRS appealed that decision but then moved to dismiss the appeal with prejudice, which was granted. So there was a judicial decision favoring SAPF. This is not a case of them getting off to a bad start and aborting prior to any ruling. And yes, they really mishandled things, as the plan was for a grand jury to indict Kotmair in South Dakota or some state up that way. They summoned him up there on false pretenses of being a witness and then faced the GJ that just got an earful from the DOJ. He spent 45 minutes with them and walked out unindicted. Apparently the IRS didn't get the memo as they proceeded to raid SAPF the following AM. Do you know this to be true? I have it that there were plenty of arguments made. The ball was not dropped by SAPF, Star. If you are basing your comments solely on what the judge wrote, then I'm afraid you're not getting the facts. This is a very deep case in which the IRS didn't even want to offer their witnesses for deposition. It was pulling teeth with them all the way. I will admit I've not been involved with the details of the case, but I converse with those who have been on a very regular basis so I'm quite confident that your impressions on SAPF's handling of the case are very, very wrong.
I'm puzzled to see you write "we", as if you are a party to the action against Kotmair and SAPF, and as if you yourself expect to be served????
As for the facts of the injunction, it's over, stick a fork in it. The order, injunction and opinion were all filed by Judge Nickerson 11/29/06
I'm a bit skeptical that his website doesn't show any of the 37 filings that have been made since 5/16/06.
is disingenuous as the posted signature pages of two filings from that case don't show any such declaration or finding of legality. .... Just that the case is being dismissed with prejudice - that is not a finding on the merits.
Well Kotmair (and SAPF) failed to dispute the government's case and it seems was non-responsive and frivolous to the discovery filings, on which basis the judge granted summary judgment to the government. Avoiding summary judgement is lawyering 101 - there is no excuse (assuming Kotmair had a case to make).
#53. To: Starwind (#46)
A jury trial is a right. It's not a privilege. A Right. You can't sacrifice someone's right out of expediency. And maybe if the government wasn't so busy carrying on it's illegal drug war they'd have more time to afford the rest their Right to a trial. Nor should you. There can be adequate safeguards for that while still affording the accused their right to a trial. There is no shortage of court rules in existance now. A no-filbuster rule can be one of them, if needed. In fact, there's nothing stoping someone from filbustering under the present system, is there? Better delayed that denied outright.
Firstly, because, there are many other litigants waiting in line to get their day in court with legitimate complaints against insurance companies, wall- street robber barrons, check bouncers, dead-beat dads, etc, and you think they should cool their heels while some moron fritters away everyones' time, and taxpayers foot the bill for expanding/juggling the court system?.
Nor do you get to "filibuster" or hold your breath and stamp your feet in a courtroom.
Justice delayed is justice denied.
#54. To: Starwind (#47)
If you are refusing to watch FtF, then that's your decision.
#55. To: Starwind (#52)
This link to the SAPF site does indeed have documents as recent as 9/11/06. http://www.save-a-patriot.org/doj/docket/docket.html There are 67 PDF documents listed there. You can say a lot of things, but to say we were non-responsive in the suit is flat out wrong. This link is on the same page that also shows the listing that stops at 5/12/06. It's labeled "Complete Docket" above the listing. I guess our webmaster got tired of updating the list.
#56. To: christine, Starwind (#9)
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. -------------------------------------------------------------------------------- United States Code -------------------------------------------------------------------------------- U.S. Code as of: 01/22/02 (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: 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] [[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: 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).
the IRS code is not the law.
Link
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
Section 1. Tax imposed
Link
[DOCID: f:publ027.108]
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.
#57. To: Neil McIver (#51)
OMB NO. 0960-0015 My intent was to publish / give Notice of my refusal to participate in any way with the Feds at any level or with any legal fiction, damn the consequences. Mine is not simply a matter of financial concern. I'm of the opinion that the number is the Mark of the Beast or its precursor. I determined that I could not participate in the system as it has been altered mid-stream to facilitate an evil agenda that would have prevented its passage in the initial stages, but has been slipped in over time. I won't support the murder of innocent people to facilitate elitists economic goals or to stay out of jail. At some point in the not to distant future it won't matter what attempts have been made to be up front with Uncle Sambo because the goons will have no respect for any law. Some might say we are at that point already. The real problem is that the weakness and apathetic ignorance of the masses is what forbids change.
It really calls for an OMB number check against the regs to see why the form was created.
"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
#58. To: Neil McIver (#52)
Just to be clear, I'm not reading some paraphrased summary, I'm reading the judge's filed order, opinion, and injunction. The exact same documents as were distributed to the parties. And your understanding of a need to be served in this instance is incorrect. This is a trial matter. When the suit started, attornies of notice and record were identified with addresses for the specific purpose of designating to whom and where documents are to be sent. There is no need for a process server to track down and "serve" parties to a suit with court documents filed pursuant to that suit. This is not like process serving. The attorney of record for Kotmair/ SAPF is George E Harp Attorney at Law LEAD ATTORNEY, ATTORNEY TO BE NOTICED (I've withheld his address from this post, but it is a matter of public record), and he most likely received a 1-2 day courier delivery of the judge's rulings. Not quite. The Seventh Amendment provides for jury trials in federal civil cases at common law or monetary damages, but not for injunctions. Read more at Juries In-depth: Right to a jury trial. That docket is a list of filings, within which the substantive filings (which complied with court procedure) were mostly made by the government. The Kotmair filings were often (not always) frivolous in their argument and non-responsive in their content and/or violation of rules. The judge overruled Kotmair's objections and denied his motions generally, and the US occasionally. The bottom line is Kotmair represented himself poorly and it shows in his pleadings. The case never got out of discovery phase because Kotmair did not supply what he was asked to supply - that is the sense in which he was non- responsive, and further invented novel and frivolous interpretations of established law, and consequently failed to dispute the government's showing of no genuine issue of material fact on which to deny the injunction, and so on that basis the judge awarded summary judgement to the government. And I doubt there will be an appeal because Kotmair failed to enter into the court record any basis on which an appellate court could find the trial court erred. ie, because Kotmair was mainly non-responsive and frivolous, there is very little of substance for an appellate court to reconsider.
I'm sure you're conveying what the web site says, but the fact remains that it's required that we be served and my latest info is we have not.
A jury trial is a right. It's not a privilege. A Right. You can't sacrifice someone's right out of expediency. And maybe if the government wasn't so busy carrying on it's illegal drug war they'd have more time to afford the rest their Right to a trial.
There are 67 PDF documents listed there. You can say a lot of things, but to say we were non-responsive in the suit is flat out wrong.
(The Gospel of Jesus Christ is the only true good news)
#59. To: nolu_chan (#56)
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.
The claim that "Title 26 was not enacted into 'positive law,' has been rejected as 'frivolous,' 'baseless,' 'specious,' and 'preposterous.'
#60. To: Starwind (#7)
I think we can pretty much discount the first motivation.
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
Those who are tardy do not get fruit cup.
#61. To: Starwind (#7)
Knives are harder to trace than bullets though. Don't agree to a gunfight.
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.
Those who are tardy do not get fruit cup.
#62. To: Starwind (#58)
Yes. Perhaps by now he has received it, but the latest word I have is he has not received it. Neither he nor SAPF. When I said we'd not been served, I meant neither SAPF nor Harp. I believe you were arguing against allowing people the defense of their choice because the halls of our courts our quite crowded. My point is that crowded halls are no excuse for depriving people of due process. I'll amend my statement from "jury trial" to "due process". If you feel that due process should rightly be curtailed such that people are not permitted a defense not approved by the bench, simply because the courts are crowded, fine. But that's clearly wrong on a moral, if not legal, basis. I'm sure the effort will be made. Maybe the appeal will be tossed, but the appeal will be made. Since you apparently hold no validity in the arguments of the "tax honesty" movement, so called, I'm curious as to what it was about Banister that you consider applaudable.
The attorney of record for Kotmair/ SAPF is George E Harp Attorney at Law LEAD ATTORNEY, ATTORNEY TO BE NOTICED (I've withheld his address from this post, but it is a matter of public record), and he most likely received a 1-2 day courier delivery of the judge's rulings.
Not quite. The Seventh Amendment provides for jury trials in federal civil cases at common law or monetary damages, but not for injunctions. Read more at Juries In-depth: Right to a jury trial.
And I doubt there will be an appeal ...
#63. To: Neil McIver (#62) (Edited)
Due process is not any process. "Due" as in to what one is entitled. There is no right to frivolous process, non-responsive process, or just plain stupid process. One is entitled to due process in accordance with laws, regulations, statutes, and court procedures. And my argument was that the rest of the litigants awaiting their day in court, waiting for their right to due process, should not be unduely delayed or if already at trial have their expenses and damages unduely increased because of someone elses imagined right to any process. The same rules that apply to insurance companies seeking to avoid paying off a dying accident victim are the same rules that apply to Kotmair or the government. That's what due process looks like. Trial attornies know these rules, they know how due process works and where its boundaries are. This is the stuff of law schools and internships. These rules weren't just invented to thwart Kotmair. He represented himself and he alone is responsible for knowing and abiding by trial procedures. If you feel that due process should rightly be curtailed such that people are not permitted a defense not approved by the bench, simply because the courts are crowded, fine.
I'm curious as to what it was about Banister that you consider applaudable.
Sure, a bit on that later.
(The Gospel of Jesus Christ is the only true good news)
#64. To: Neil McIver (#59)
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. United States Code 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. 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).
While it is true that Title 26 has not been enacted into "positive law," the meritless claim that this affords some legal basis to ignore the positive law which is merely restated by Title 26 is frivolous, baseless, specious and/or preposterous. As one case notes, the Courts have grown weary of hearing this frivolous argument and have imposed sanctions against those proffering such nonsense. http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=1&sec=204
TITLE 1 - GENERAL PROVISIONS
CHAPTER 3 - CODE OF LAWS OF UNITED STATES AND SUPPLEMENTS; DISTRICT OF COLUMBIA CODE AND SUPPLEMENTS
#65. To: Starwind (#63)
That is hardly an argument against allowing people the defense of their choice. And I'm not talking about a filbuster defense. I'm talking abuot the right to tell a jury that one smoked marijuana out of medical need because he is seriously ill with cancer or something, or the right to tell a jury that one honestly believed there was no duty to file a tax return. Both of these defenses are routinely denied by judges, and they have absolutely *nothing* to do with a heavy docket. They have to do with suppression. In the latter case, just as a footnote, it is established by the supremes that *willful* failure to file is not applicable in cases where people have a good faith belief that there is not duty to file, regardless of the stated reason for the belief. I have seen court orders that bar defendents the defense of, among other things, telling the jury what the defendents believed the law to say or what the law required of them. If you are of the position that there is justice in today's courts, then I suspect you just haven't been in many at all.
And my argument was that the rest of the litigants awaiting their day in court, waiting for their right to due process, should not be unduely delayed or if already at trial have their expenses and damages increased because of someone elses imagined right to any process.
#66. To: nolu_chan (#64)
All I was saying is that the claim that title 26 has not been enacted into positive law is factual, and that, therefore, the annotation claiming otherwise was incorrect. I know it's likely the annotation is not accurately conveying the finding in those cases. Yes, I agree that using that as a basis to say the laws listed in title 26 are not legally binding carries no weight.
#67. To: Starwind, Neil McIver (#63)
I agree, many of the so-called "rules" were invented to thwart (manage) justice in general, and are violated by the courts themselves when the situation arises wherein the court feels justified or compelled. I disagree that lawyers and internships have much to do with understanding the rules ... reading comprehension above a 3rd grade level is sufficient. I had an action against my father's Estate summarily dismissed by brief that had been sued out by a Probate Attorney (thug), that was also a Law Professor at Indiana University, and the Judge laughed him out of court. Incompetence is rampant in the legal profession.
These rules weren't just invented to thwart Kotmair.
"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
#68. To: Neil McIver (#66)
Yes, I agree that using that as a basis to say the laws listed in title 26 are not legally binding carries no weight. This information is correct. I think I started this aggravating and unimportant series of irrelevant posts. I apologize !
All I was saying is that the claim that title 26 has not been enacted into positive law is factual, and that, therefore, the annotation claiming otherwise was incorrect. I know it's likely the annotation is not accurately conveying the finding in those cases.
"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
#69. To: Neil McIver (#65) (Edited)
When the "defense of their choice" is merely a euphemism for a novel, fabricated reading of otherwise established case law and ignoring standard procedures, then yes I would disallow that defense. In Kotmair's case, the judge allowed it, and ultimately ruled on its failure to be an adequate defense and granted summary judgement. If you are of the position that the meaning of justice in todays courts can be made up by you as you go along, then I likwise suspect you just haven't been in many at all.
That is hardly an argument against allowing people the defense of their choice.
If you are of the position that there is justice in today's courts, then I suspect you just haven't been in many at all.
(The Gospel of Jesus Christ is the only true good news)
#70. To: Starwind, Neil McIver (#69) (Edited)
The Supreme Court ruled in favor of slavery ... was that Justice or was that an expedient decision given by the whores in black robes for their masters And, is it even thinkable that the Kelo Case represents the intent of the writers of the Constitution, or is it more likely that it supports the necessary theft to build the Trans-Texas Corridor ? Only someone with a horse in the race could look at our current legal system and condone its outrages.
"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
#71. To: Starwind, Neil McIver (#58)
it's attorneys, not attornies. /spelling nazi ;)
attornies
#72. To: noone222 (#57)
i am of that opinion and not for lack of evidence. i've been witness to far too many courtroom atrocities to think otherwise.
At some point in the not to distant future it won't matter what attempts have been made to be up front with Uncle Sambo because the goons will have no respect for any law. Some might say we are at that point already.
#73. To: nolu_chan, Neil McIver (#64) (Edited)
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.
(The Gospel of Jesus Christ is the only true good news)
#74. To: christine (#72)
i am of that opinion and not for lack of evidence. i've been witness to far too many courtroom atrocities to think otherwise. It's assholes ... not attorneys !!! Me too, and I've witnessed a plethora of incompetent or indifferent lawyers, that become incompetent and indifferent Judges. Aside from kicking the Law Professor's ass in court, I also won a Judgment of 100K by whipping a scum bag divorce lawyer that frequently acted as a Judge Pro- Tem in California. They're a collection of super-scum that manages to ooze its way through law school, buy a cheap suit and kiss Judicial ass for the next 20 years to earn a living by stealing it from others.
it's attorneys, not attornies. /spelling nazi
"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
#75. To: christine (#71)
I do have a mental block about that word. I seldom spell it correctly out of the gate, and sometimes catch and correct it on a proof read. God bless spelling nazis, apostrophe nazis, comma nazis, punctuation nazis, grammar nazis, et. al. :)
it's attorneys, not attornies. /spelling nazi
(The Gospel of Jesus Christ is the only true good news)
#76. To: Starwind (#73)
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. 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.
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.
#77. To: Neil McIver, Starwind (#76)
From the cited/linked A Fairy Tale of Taxation Pollack was nullified by the Sixteenth Amendment to the Constitution. The matter went back and forth until it was resolved by the 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. From American Constitutional Law, Third Edition, Volume One, by Laurence H. Tribe, at page 843: [boldface added, footnotes deleted] From A Practical Companion to the Constitution, by Jethro K. Lieberman, at page 55: * * * 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: 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: [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: From Pollack (rehearing) at 635: 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; 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: 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 Brushaber states that the 16th Amendment returned the income tax to an "indirect tax." 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. 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. This page gives a pretty good historical summary of federal 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.
Amendment XVI
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."
APPORTIONMENT OF TAXES.
Direct and Indirect Taxes
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.
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.
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.
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.
This whole paragraph is complete, utter, total bullcrap. 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.
1913: With the ratification of the 16th Amendment, Congress creates the federal internal income tax
The Federal Income Tax and the Internal Revenue Bureau were created during the Lincoln administration. http://laws.findlaw.com/us/240/1.html
http://laws.findlaw.com/us/240/103.html
#78. To: nolu_chan (#77) (Edited)
Many confuse "income" with anything (money) coming in ... this leads to people paying tax on non-taxable funds. Less than 3% of all Americans paid an income tax prior to WW II (which was after the 16th Amendment was passed). Define this term "income" ... if the term is defined as a profit or gain from a capital investment ... then: If a guy earns $500.00 working and invests it in the market and makes $100.00 profit or gain, the $100.00 is taxable while his labor is non-taxable. If one is involved in a taxable activity (cigarette manufacturing for example) the tax is on the event, not upon the money. The money is merely the measurement used to determine the amount owed.
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."
"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
#79. To: nolu_chan (#77)
I've looked through your cites but found
no evidence to support this claim. 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.
The author gave no evidence or support
for this claim. 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. This is bunk as, again,
there's no support for the claim that the 16th overturned Pollack.
This is serious bunk. The
Constitution has never lost that distinction, and there's no SC case that
supports the claim. 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).
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. 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.
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.
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. 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. 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?
Pollack was nullified by the Sixteenth Amendment to the
Constitution.
From American
Constitutional Law, Third Edition, Volume One, by Laurence H. Tribe, at page
843:
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.
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]
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.
The Court eventually abandoned the distinction between direct
and indirect taxes.
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.
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.
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.
[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.
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.
#80. To: noone222 (#78)
Great minds....
If one is involved in a taxable activity (cigarette manufacturing for example) the tax is on the event, not upon the money. The money is merely the measurement used to determine the amount owed.
#81. To: Neil McIver, Nolu Chan (#80)
Taxation as envisioned by the framers was to share the nations wealth by paying for the necessary government requirements through taxing those entities privileged to benefit from the collective resources owned by the nation in general. (Not to tax every dollar in circulation 20 times over). An example would be a coal mining operation owned by John Doe that extracts the nations natural resources while benefitting only Mr. Doe. The tax is imposed on the fact that the nations ore is only making Mr. Doe rich and it's not all his, so a tax makes it possible for the entire nation to benefit indirectly when the money serves to support the government we all need. The same holds true for the nations air-waves. We all own them, but we all can't extract individual profits from them, so a certain amount is taxed into the general fund. To think for an instant that this country's taxing formula was ever meant to tax everything is ludicrous especially considering the people's immediate history. Today, Americans are so willing to be taxed on every-frickin-breath of air they breathe it causes those with a brain to suffer the ravages of the morons ! I'd have to admit I was one of those morons for a long time too ... but it was investigation of sub-section 6331(a) of the IR Code that pursuaded me to investigate further. Especially after the schemers at the IRS had left that section off of a form wherein every other clause they quoted had A, B, C, and D printed. So why did they leave off (a) ? Because there it explains who is and who ain't subject to their B.S. ... and they leave it off so you can subject yourself to their crap if you so choose. Thanks !
"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
#82. To: nolu_chan, Starwind (#77)
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. Though it doesn't explain why judges do stuff like allow someone to be charged for violating the law that merely prescribes the penalty to be imposed upon someone for evasion or failure to file. 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?
#83. To: noone222 (#81)
Taxation is necessary. I'm no anarchist, which is the only alternative to a zero tax society. I've not really appreciated the community property aspect of mining and drilling operations until recently due to my time in Ecuador. There, as in Venezuela, oil is considered the property of the people and stories of corruption in which senior officials are paid off in the back room for bargain drilling rights is a serious problem. The winners are the oil companies, pretty much all foreign, and the bribed officials. The loosers are the people deprived of their birthright, which is the equal right of access to their own country's resources. The fact that many in Ecuador are poor reinforces the sentiment, and is also probably one of the main the source of communist sympathies since such corruption is viewed as an trademark of capitalism. So yes, mining and drilling rights are morally taxable activities as is any activity that takes away worth from society. Well, that's how it is in a pure democracy. Whatever the majority wants taxed is taxed, and many Americans love taxes. I'm thinking that's the "who can be levied" section, if I'm not mistaken. Yes, it's peculiar that they jumped right to subsection 'b' in their quotation.
Today, Americans are so willing to be taxed on every-frickin-breath of air they breathe it causes those with a brain to suffer the ravages of the morons !
investigation of sub-section 6331(a) of the IR Code that pursuaded me to investigate further. Especially after the schemers at the IRS had left that
#84. To: Neil McIver (#83)
I'm thinking that's the "who can be levied" section, if I'm not mistaken. Yes, it's peculiar that they jumped right to subsection 'b' in their quotation. Here's my theory: If one participates in the Socialist Security Insurance Scheme that person has opted out of the Representative Republic founded and operated under Constitutional restraints, having entered into a contract for "expected" benefits and volunteered into the Socialist Democracy. I contacted the IRS after researching the 6331(a) portion of the Lien, Levy and Distraint clause only to find that it applies to Federal Officers of Federal Corporations, and people living on federal land, enclaves and some Islands like Guam and the Mauanna Islands ... but that ain't me ! Upon contacting a bozo at the number provided on the form and inquiring about the code, he stated that "there are a lot codes and I don't know them all" ... I asked him to get a supervisor and he told me no one else was there and hung up on me !!! Starwind seems to suffer prosecutorial prejudice while ignoring the Constitution, precedent, history and common sense. As far as I could tell Joe Banister's arguments were Bill Bentson's non-ratification of the 16th Amendment, and a recently devised 5th Amendment claim against filing a 1040 based upon self-incrimination, ignoring the fact that you swear under penalty of perjury to be a Federal U.S. Citizen ... just like an immigrant from Vietnam, China or Russia. The 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) ! Birthright isn't free, one has a duty to protect the country which is something foreigners granted the "privilege" of citizenship generally avoid. I don't know how others approach problems like the tax code, but as soon as I have enough info to see a fraud ... I'm out !
Well, that's how it is in a pure democracy. Whatever the majority wants taxed is taxed, and many Americans love taxes.
"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
#85. To: Neil McIver, nolu_chan (#79) (Edited)
POLLOCK v. FARMERS' LOAN & TRUST CO., 157 U.S. 429 (1895) 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. 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. 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. 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.
Pollack was nullified by the Sixteenth Amendment to the Constitution.
I've looked through your cites but found no evidence to support this claim.
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.
16th AmendmentThe 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.
[...] 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.
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.
(The Gospel of Jesus Christ is the only true good news)
#86. To: Starwind (#85)
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.
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.
"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
#87. To: noone222 (#86) (Edited)
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?
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.
(The Gospel of Jesus Christ is the only true good news)
#88. To: Starwind (#87)
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.
(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?
"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
#89. To: Neil McIver, Starwind (#79)
Let me help. 16TH 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." See if you can find what was left of Pollack overturned by South Carolina v. Baker. U.S. Supreme Court SOUTH CAROLINA v. BAKER, 485 U.S. 505 (1988) * * * BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and in which SCALIA, J., joined except for Part II. STEVENS, J., filed a concurring opinion, post, p. 527. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 528. REHNQUIST, C. J., filed an opinion concurring in the judgment, post, p. 528. O'CONNOR, J., filed a dissenting opinion, post, p. 530. KENNEDY, J., took no part in the consideration or decision of the case. * * * III South Carolina contends that even if a statute banning state bearer bonds entirely would be constitutional, 310 unconstitutionally violates the doctrine of intergovernmental tax immunity because it imposes a tax on the interest earned on a state bond. We agree with South Carolina that 310 is [485 U.S. 505, 516] inconsistent with Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), which held that any interest earned on a state bond was immune from federal taxation. The Secretary and the Master, however, suggest that we should uphold the constitutionality of 310 without explicitly overruling Pollock because 310 does not abolish the tax exemption for state bond interest entirely but rather taxes the interest on state bonds only if the bonds are not issued in the form Congress requires. In our view, however, this suggestion implicitly rests on a rather mischievous proposition of law. If, for example, Congress imposed a tax that applied exclusively to South Carolina and levied the tax directly on the South Carolina treasury, we would be obligated to adjudicate the constitutionality of that tax even if Congress allowed South Carolina to escape the tax by restructuring its state government in a way Congress found more to its liking. The United States cannot convert an unconstitutional tax into a constitutional one simply by making the tax conditional. Whether Congress could have imposed the condition by direct regulation is irrelevant; Congress cannot employ unconstitutional means to reach a constitutional end. Under Pollock, a tax on the interest income derived from any state bond was considered a direct tax on the State and thus unconstitutional. 157 U.S., at 585 -586. If this constitutional rule still applies, Congress cannot threaten to tax the interest on state bonds that do not conform to congressional dictates. We thus decline to follow a suggestion that would force us to embrace implicitly a proposition of law far more controversial than the current validity of Pollock's ban on taxing state bond interest, and proceed to address whether Pollock should be explicitly overruled. Under the intergovernmental tax immunity jurisprudence prevailing at the time, Pollock did not represent a unique immunity limited to income derived from state bonds. Rather, Pollock merely represented one application of the more general rule that neither the Federal nor the State Governments could tax income an individual directly derived from any contract with another government. Not only was it unconstitutional for the Federal Government to tax a bondowner on the interest he or she received on any state bond, but it was also unconstitutional to tax a state employee on the income earned from his employment contract, Collector v. Day, 11 Wall. 113 (1871), to tax a lessee on income derived from lands leased from a State, Burnet v. Coronado Oil, 285 U.S. 393 (1932), or to impose a sales tax on proceeds a vendor derived from selling a product to a state agency, Indian Motocycle Co. v. United States, 283 U.S. 570 (1931). Income derived from the same kinds of contracts with the Federal Government were likewise immune from taxation by the States. See Weston v. City Council of Charleston, 2 Pet. 449 (1829) (federal bond interest immune from state taxation); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842) (federal employee immune from state tax on salary); Gillespie v. Oklahoma, 257 U.S. 501 (1922) (income derived from federal lease immune from state tax); Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928) (vendor immune from sales tax on vendor's proceeds from sale to the United States). Cases concerning the tax immunity of income derived from state contracts freely cited principles established in federal tax immunity cases, and vice versa. See, e. g., Coronado Oil, supra, at 398; Indian Motocycle, supra, at 575-579; Pollock, supra, at 586. See generally Indian Motocycle, supra, at 575 (immunity of States from federal tax equal to immunity of Federal Government from state tax); Metcalf & Eddy v. Mitchell, 269 U.S. 514, 521 -522 (1926); Collector v. Day, supra, at 127. This general rule was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax "on" the government because it burdened the government's power to enter into the contract. The Court in Pollock borrowed its reasoning directly from the decision in Weston exempting federal bond interest from state taxation: The rationale underlying Pollock and the general immunity for government contract income has been thoroughly repudiated by modern intergovernmental immunity case law. In Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939), the Court announced: "The theory . . . that a tax on income is legally or economically a tax on its source, is no longer tenable." Id., at 480. The Court explained: With the rationale for conferring a tax immunity on parties dealing with another government rejected, the government contract immunities recognized under prior doctrine were, one by one, eliminated. Overruling Burnet v. Coronado Oil, 285 U.S. 393 (1932), and Gillespie v. Oklahoma, 257 U.S. 501 (1922), the Court upheld the constitutionality of a federal tax on net income a corporation derived from a state lease in Helvering v. Mountain Producers Corp., 303 U.S. 376 (1938). See also Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342 (1949) (upholding constitutionality of state tax on gross income derived from Indian lease). Later, the Court explicitly overruled Collector v. Day, 11 Wall. 113 (1871), and upheld the constitutionality of a nondiscriminatory state tax on the salary of a federal employee. Graves v. New York ex rel. O'Keefe, supra. And in the course of upholding a sales tax on a cost-plus Government contractor, the Court in King & Boozer overruled Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928). See also James, supra (upholding state tax on gross income independent contractor received from Federal Government). The only premodern tax immunity for parties to government contracts that has so far avoided being explicitly overruled is the immunity for recipients of governmental bond interest. That this Court has yet to overrule Pollock explicitly, however, is explained not by any distinction between the income derived from government bonds and the income derived from other government contracts, but by the historical fact that Congress has always exempted state bond interest from taxation by statute, beginning with the very first federal income tax statute. Act of Oct. 3, 1913, ch. 16, II(B), 38 Stat. 168. In sum, then, under current intergovernmental tax immunity doctrine the States can never tax the United States directly but can tax any private parties with whom it does business, even though the financial burden falls on the United States, as long as the tax does not discriminate against the United States or those with whom it deals. See Washington, supra, at 540; County of Fresno, supra, at 460-463; City of Detroit, supra, at 473; Oklahoma Tax Comm'n, supra, at 359-364. A tax is considered to be directly on the Federal Government only "when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities." New Mexico, supra, at 735. The rule with respect to state tax immunity is essentially the same, see, e. g., Graves, supra, at 485; Mountain Producers Corp., supra, at 386-387, except that at least some nondiscriminatory federal taxes can be collected directly from the States even though a parallel state tax could not be collected directly from the Federal Government. See generally n. 11, supra. We thus confirm that subsequent case law has overruled the holding in Pollock that state bond interest is immune from a nondiscriminatory federal tax. We see no constitutional reason for treating persons who receive interest on government bonds differently than persons who receive income from other types of contracts with the government, and no tenable rationale for distinguishing the costs imposed on States by a tax on state bond interest from the costs imposed by a tax on the income from any other state contract. We stated in Graves that "as applied to the taxation of salaries of the employees of one government, the purpose of the immunity was not to confer benefits on the employees by relieving them from contributing their share of the financial support of the other government, whose benefits they enjoy, or to give an advantage to a government by enabling it to engage employees at salaries lower than those paid for like services by other employers, public or private . . . ." 306 U.S., at 483 . Likewise, the owners of state bonds have no constitutional entitlement not to pay taxes on income they earn from state bonds, and States have no constitutional entitlement to issue bonds paying lower interest rates than other issuers. Indeed, this Court has in effect acknowledged that a holder of a Government bond could constitutionally be taxed on bond interest in Memphis Bank & Trust Co. v. Garner, 459 U.S. 392 (1983), which involved a state tax on federal bond interest. Although that case involved an interpretation of 31 U.S.C. 742, we premised our statutory interpretation on the observation that "[o]ur decisions have treated 742 as principally a restatement of the constitutional rule." 459 U.S., at 397 . We then stated: "Where, as here, the economic but not the legal incidence of the tax falls upon the Federal Government, such a tax generally does not violate the constitutional immunity if it does not discriminate against holders of federal property or those with whom the Federal Government deals." Ibid. (emphasis added). TEFRA 310 thus clearly imposes no direct tax on the States. The tax is imposed on and collected from bondholders, not States, and any increased administrative costs incurred by States in implementing the registration system are not "taxes" within the meaning of the tax immunity doctrine. See generally United States v. Mississippi Tax Comm'n, 421 U.S. 599, 606 (1975) (describing tax as an enforced contribution to provide for the support of government). Nor does 310 discriminate against States. The provisions of 310 seek to assure that all publicly offered long-term bonds are issued in registered form, whether issued by state or local governments, the Federal Government, or private corporations. See supra, at 510. Accordingly, the Federal Government has directly imposed the same registration requirement on itself that it has effectively imposed on States. The incentives States have to switch to registered bonds are necessarily different than those of corporate bond issuers because only state bonds enjoy any exemption from the federal tax on bond interest, but the sanctions for issuing unregistered corporate bonds are comparably severe. See ibid. Removing the tax exemption for interest earned on state bonds would not, moreover, create a discrimination between state and corporate bonds since corporate bond interest is already subject to federal tax. IV Because the federal imposition of a bond registration requirement on States does not violate the Tenth Amendment and because a nondiscriminatory federal tax on the interest earned on state bonds does not violate the intergovernmental tax immunity doctrine, we uphold the constitutionality of 310(b)(1), overrule the exceptions to the Special Master's Report, and approve his recommendation to enter judgment for the defendant. It is so ordered. I've looked through your cites but found no evidence to support this claim.
http://laws.findlaw.com/us/485/505.htm
"'The right to tax the contract to any extent, when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on the contract. The extent of this influence depends on the will of a distinct government. To any extent, however inconsiderable, it is a burthen on the operations of government. . . . The tax on government stock is thought by this court to be a tax on the contract, a tax on the [government's] power to borrow money . . . and consequently to be repugnant to the Constitution.'" Pollock, supra, at 586, quoting Weston, supra, at 467, 468.
Thus, although a tax was collected from an independent private party, the tax was considered to be "on" the government because the tax burden might be passed on to it through the contract. This reasoning was used to define the basic scope of both federal and state tax immunities with respect to all types of government contracts. See, e. g., Coronado Oil, supra, at 400-401 ("Here the lease . . . was an instrumentality of the State . . . . To tax the income of the lessee arising therefrom would amount to an imposition upon the lease itself"); Panhandle Oil, supra, at 222 ("It is immaterial that the seller and not the purchaser is required to report and make payment to the State. Sale and purchase constitute a transaction by which the tax is measured and on which the burden rests"); Gillespie, supra, at 505-506 ("`A tax upon the leases is a tax upon the power to make them . . .'" (quoting Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522, 530 (1916))). The commonality of the rationale underlying all these immunities for government contracts [485 U.S. 505, 520] was highlighted by Indian Motocycle, 283 U.S. 570 (1931). In that case, the Court reviewed the then current status of intergovernmental tax immunity doctrine, observing that a tax on interest earned on a state or federal bond was unconstitutional because it would burden the exercise of the government's power to borrow money and that a tax on the salary of a State or Federal Government employee was unconstitutional because it would burden the government's power to obtain the employee's services. Id., at 576-578. It then concluded that under the same principle a sales tax imposed on a vendor for a sale to a state agency was unconstitutional because it would burden the sale transaction. Id., at 579. "So much of the burden of a non-discriminatory general tax upon the incomes of employees of a government, state or national, as may be passed on economically to that government, through the effect of the tax on the price level of labor or materials, is but the normal incident of the organization within the same territory of two governments, each possessing the taxing power. The burden, so far as it can be said to exist or to affect the government in any indirect or incidental way, is one which the Constitution presupposes...." Id., at 487.
See also James v. Dravo Contracting Co., 302 U.S. 134, 160 (1937) (the fact that a tax on a Government contractor "may increase the cost to the Government . . . would not invalidate the tax"); Helvering v. Gerhardt, 304 U.S. 405, 424 (1938). The thoroughness with which the Court abandoned the burden theory was demonstrated most emphatically when the Court upheld a state sales tax imposed on a Government contractor even though the financial burden of the tax was entirely passed on, through a cost-plus contract, to the Federal Government. Alabama v. King & Boozer, 314 U.S. 1 (1941). The Court stated: "The Government, rightly we think, disclaims any contention that the Constitution, unaided by Congressional legislation, prohibits a tax exacted from the contractors merely because it is passed on economically, by the terms of the contract or otherwise, as part of the construction cost to the Government. So far as such a non-discriminatory state tax upon the contractor enters into the cost of the materials to the Government, that is but a normal incident of the organization within the same territory of two independent taxing sovereignties. The asserted right of the one to be free of taxation by the other does not spell immunity from paying the added costs, attributable to the taxation of those who furnish supplies to the Government and who have been granted no tax immunity. So far as a different view has prevailed, we think it no longer tenable." Id., at 8-9 (citations omitted).
King & Boozer thus completely foreclosed any claim that the nondiscriminatory imposition of costs on private entities that pass them on to States or the Federal Government unconstitutionally burdens state or federal functions. Subsequent cases have consistently reaffirmed the principle that a non-discriminatory tax collected from private parties contracting with another government is constitutional even though part or all of the financial burden falls on the other government. See Washington v. United States, 460 U.S. 536, 540 (1983); United States v. New Mexico, 455 U.S. 720, 734 (1982); United States v. County of Fresno, 429 U.S. 452, 460 -462, and n. 9 (1977); United States v. City of Detroit, 355 U.S. 466, 469 (1958).
#90. To: Neil McIver (#82)
Do a felony, do the time, pay the fine, and pay the cost of prosecution. http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=26&sec=7201 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. ================ Section 6673. Sanctions and costs awarded by courts (a) Tax court proceedings (1) Procedures instituted primarily for delay, etc. Whenever it appears to the Tax Court that - (A) proceedings before it have been instituted or maintained by the taxpayer primarily for delay, (B) the taxpayer's position in such proceeding is frivolous or groundless, or (C) the taxpayer unreasonably failed to pursue available administrative remedies, the Tax Court, in its decision, may require the taxpayer to pay to the United States a penalty not in excess of $25,000. [snip] ================
Though it doesn't explain why judges do stuff like allow someone to be charged for violating the law that merely prescribes the penalty to be imposed upon someone for evasion or failure to file.
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
#91. To: noone222 (#88)
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. 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). 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. 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.
If they enacted it, it would be law until the Supreme Court struck it down, which is quite different from your statement
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 ...
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.
(The Gospel of Jesus Christ is the only true good news)
#92. To: Neil McIver, Starwind (#82)
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. Notably, originally booze was constitutional. Then booze was unconstitutional. It may have been a dumb idea, but it was duly ratified and people went to prison over it. Then booze was constitutional again.
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?
#93. To: Starwind (#91)
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.
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.
"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
#94. To: noone222 (#93)
Indeed, so there was little point in my trying to shoe-horn it into your three pat premises. I at least rest my arguments on more than insults.
The Income tax is a complex subject and even Judges have difficulty with it.
#41. To: Neil McIver, Starwindbag (#32)
I think you have a gift for sounding intelligent while knowing nothing.
(The Gospel of Jesus Christ is the only true good news)
#95. To: noone222 (#78)
United States Code U.S. Code as of: 01/19/04 (a) General definition Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, fringe benefits, and similar items; United States Code U.S. Code as of: 01/19/04 (a) In general Except as provided in subsection (b), for purposes of this subtitle, the term "taxable income" means gross income minus the deductions allowed by this chapter (other than the standard deduction). (b) Individuals who do not itemize their deductions In the case of an individual who does not elect to itemize his deductions for the taxable year, for purposes of this subtitle, the term "taxable income" means adjusted gross income, minus - (1) the standard deduction, andDefine this term "income" ... if the term is defined as a profit or gain from a capital investment ... then:
LINK
TITLE 26 - INTERNAL REVENUE CODE
SUBTITLE A - INCOME TAXES
CHAPTER 1 - NORMAL TAXES AND SURTAXES
SUBCHAPTER B - COMPUTATION OF TAXABLE INCOME
PART I - DEFINITION OF GROSS INCOME, ADJUSTED GROSS INCOME, TAXABLE INCOME, ETC.
Section 61. Gross income defined
(2) Gross income derived from business;
(3) Gains derived from dealings in property;
(4) Interest;
(5) Rents;
(6) Royalties;
(7) Dividends;
(8) Alimony and separate maintenance payments;
(9) Annuities;
(10) Income from life insurance and endowment contracts;
(11) Pensions;
(12) Income from discharge of indebtedness;
(13) Distributive share of partnership gross income;
(14) Income in respect of a decedent; and
(15) Income from an interest in an estate or trust.LINK
TITLE 26 - INTERNAL REVENUE CODE
SUBTITLE A - INCOME TAXES
CHAPTER 1 - NORMAL TAXES AND SURTAXES
SUBCHAPTER B - COMPUTATION OF TAXABLE INCOME
PART I - DEFINITION OF GROSS INCOME, ADJUSTED GROSS INCOME, TAXABLE INCOME, ETC.
Section 63. Taxable income defined
(2) the deduction for personal exemptions provided in section 151.
#96. To: nolu_chan (#92)
That's a good point. The Sixteeenth Amendment didn't repeal Article 1 section 8 subsection 1 or Article 1 section 9 subsection 4 which covered the means of collecting the tax dependent upon whether it was direct or indirect. The 16th Amendment speaks to indirect taxation, an excise tax to be collected uniformly throughout the States, based upon taxable events conducted by one who profits from taxable events that becomes a taxpayer by so doing. The type of event (source) determines whether or not taxable income is derived from it, and when it is a taxable event the dollar amount of total profit is used as the measurement to determine the amount owed by the taxpayer.
Notably, originally booze was constitutional. Then booze was unconstitutional. It may have been a dumb idea, but it was duly ratified and people went to prison over it. Then booze was constitutional again.
"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
#97. To: nolu_chan (#95) (Edited)
Except as otherwise provided in this subtitle, gross income means all income Nolu ... it's impossible to define the word income with the word income. This phraseology doesn't define income. 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.
(a) General definition
"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
#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.
The 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)
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
#100. To: Starwind (#85)
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.
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)
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.
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.
(The Gospel of Jesus Christ is the only true good news)
#102. To: nolu_chan (#89)
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?
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)
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.
#104. To: nolu_chan (#92)
.... 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.
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 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.
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)
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'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)
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 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)
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?
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.
(The Gospel of Jesus Christ is the only true good news)
#109. To: Starwind (#108)
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.
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)
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)
#111. To: Starwind (#110)
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.
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)
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.
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.
(The Gospel of Jesus Christ is the only true good news)
#113. To: Starwind (#112)
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.
Just to be clear, it is defined.
I will at some point post my thoughts on Banister, as requesed.
#114. To: Neil McIver (#113)
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)
#115. To: Starwind (#114)
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!!
You have the last word, I'm really trying to just let this go :)
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
#116. To: Starwind (#114)
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).
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)
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.
I got in way late in the thread, but I have to throw in my 2¢ worth.
#118. To: Neil McIver (#116)
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".
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.
"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
#119. To: innieway, Neil McIver, Starwind, all (#115)
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
#120. To: Neil McIver (#116) (Edited)
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.
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
(The Gospel of Jesus Christ is the only true good news)
#121. To: Neil McIver, innieway (#117)
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.
If Star's feeling the same way I do right now then he might just capitulate.
(The Gospel of Jesus Christ is the only true good news)
#122. To: Starwind (#120)
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
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)
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
#124. To: Neil McIver (#122) (Edited)
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?
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.
(The Gospel of Jesus Christ is the only true good news)
#125. To: noone222 (#119)
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
-Thomas Paine
#126. To: lodwick (#125)
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
#127. To: Starwind, Neil McIver (#121)
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".
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.
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
#128. To: noone222, Neil McIver, Starwind, innieway, nolu_chan (#119) (Edited)
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.
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)
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.
#130. To: Starwind (#124)
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.
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)
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.
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)
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?
"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)
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.
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.
"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
#134. To: Neil McIver, Starwind, TommyTheMadArtist (#132) (Edited)
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
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?
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
#135. To: innieway (#134)
I'll have to try that out.
#136. To: Starwind, Neil McIver (#124)
[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- - - - - - - - - - - - - - [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)
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: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)
[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; 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
#139. To: Neil McIver, Starwind (#107)
[Neil McIver #107 to Starwind] 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. In Stanton, the Supreme Court termed the "theory" underlying Pollack "a mistaken theory." U.S. Supreme Court * * * Without attempting minutely to state every possible ground of attack which might be deduced from the averments of the bill, but in substance embracing every material grievance therein asserted and pressed in argument upon our attention in the elaborate briefs which have been submitted, we come to separately dispose of the legal propositions advanced in the bill and arguments concerning the two classes. Class A. Under this the bill charged that the provisions of the statute 'are unconstitutional and void under the 5th Amendment, in that they deny to mining companies and their stockholders equal protection of the laws and deprive them of their property without due process of law,' for the following reasons: (1) Because all other individuals or corporations were given a right to deduct a fair and reasonable percentage for losses and depreciation of their capital, and they were [240 U.S. 103, 111] therefore not confined to the arbitrary 5 per cent fixed as the basis for deductions by mining corporations. (2) Because by reason of the differences in the allowances which the statute permitted, the tax levied was virtually a net income tax on other corporations and individuals, and a gross income tax on mining corporations. (3) Because the statute established a discriminating rule as to individuals and other corporations as against mining corporations on the subject of the method of the allowance for depreciations. (4) Because the law permitted all individuals to deduct from their net income dividends received from corporations which had paid the tax on their incomes, and did not give the right to corporations to make such deductions from their income of dividends received from other corporations which had paid their income tax. This was illustrated by the averment that 99 per cent of the stock of the defendant company was owned by a holding company, and that under the statute not only was the corporation obliged to pay the tax on its income, but so also was the holding company obliged to pay on the dividends paid it by the defendant company. (5) Because of the discrimination resulting from the provision of the statute providing for a progressive increase of taxation or surtax as to individuals, and not as to corporations. (6) Because of the exemptions which the statute made of individual incomes below $4,000, and of incomes of labor organizations and various other exemptions which were set forth. But it is apparent from the mere statement of these contentions that each and all of them were adversely disposed of by the decision in the Brushaber Case, and they all therefore may be put out of view. Class B. Under this class these propositions are relied upon: (1) That as the 16th Amendment authorizes only an exceptional direct income tax without apportionment, to which the tax in question does not conform, it is therefore not within the authority of that Amendment. (2) Not being within the authority of the 16th Amendment, the tax is therefore, within the ruling of Pollock v. Farmers' Loan & T. Co. 157 U.S. 429 , 39 L. ed. 759, 15 Sup. Ct. Rep. 673; 158 U.S. 601 , 39 L. ed. 1108, 15 Sup. Ct. Rep. 912, a direct tax and void for want of compliance with the regulation of apportionment. As the first proposition is plainly in conflict with the meaning of the 16th Amendment as interpreted in the Brushaber Case, it may also be put out of view. As to the second, while indeed it is distinct from the subjects considered in the Brushaber Case to the extent that the particular tax which the statute levies on mining corporations here under consideration is distinct from the tax on corporations other than mining and on individuals, which was disposed of in the Brushaber Case, a brief analysis will serve to demonstrate that the distinction is one without a difference, and therefore that the proposition is also foreclosed by the previous ruling. 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. Mark, of course, in saying this we are not here considering a tax not within the provisions of the 16th Amendment, that is, one in which the regulation of apportionment or the rule of uniformity is wholly negligible because the tax is one entirely beyond the scope of the taxing power of Congress, and where consequently no authority to impose a burden, either direct or indirect, exists. In other words, we are here dealing solely with the restriction imposed by the 16th Amendment on the right to resort to the source whence an income is derived in a case where there is power to tax for the purpose of taking the income tax out of the class of indirect, to which it generically belongs, and putting it in the class of direct, to which it would not otherwise belong, in order to subject it to the regulation of apportionment. But it is said that although this be undoubtedly true as a general rule, the peculiarity of mining property and the exhaustion of the ore body which must result from working the mine cause the tax in a case like this, where an inadequate allowance by way of deduction is made for the exhaustion of the ore body, to be in the nature of things a tax on property because of its ownership, and therefore subject to apportionment. Not to so hold, it is urged, is as to mining property but to say that mere form controls, thus rendering in substance the command of the Constitution that taxation directly on property because of its ownership be apportioned, wholly illusory or futile. But this merely asserts a right to take the taxation of mining corporations out of the rule established by the 16th Amendment when there is no authority for so doing. It moreover rests upon the wholly fallacious assumption that, looked at from the point of view of substance, a tax on the product of a mine is necessarily in its essence and nature in every case a direct tax on property because of its ownership, unless adequate allowance be made for the exhaustion of the ore body to result from working the mine. We say wholly fallacious assumption because, independently of the effect of the operation of the 16th Amendment, it was settled in Stratton's Independence v. Howbert, 231 U.S. 399 , 58 L. ed. 285, 34 Sup. Ct. Rep. 136, that such tax is not a tax upon property as such because of its ownership, but a true excise levied on the results of the business of carrying on mining operations. (pp. 413 et seq.) As it follows from what we have said that the contentions are in substance and effect controlled by the Brushaber Case, and, in so for as this may not be the case, are without merit, it results that, for the reasons stated in the opinion in that case and those expressed in this, the judgment must be and it is affirmed. http://laws.findlaw.com/us/231/399.html U.S. Supreme Court * * * It is not correct, from either the theoretical or the practical standpoint, to say that a mining corporation is not engaged in business, but is merely occupied in converting its capital assets from one form into another. The sale outright of a mining property might be fairly described as a mere conversion of the capital from land into money. But when a company is digging pits, sinking shafts, tunneling, drifting, stoping, drilling, blasting, and hoisting ores, it is employing capital and labor in transmuting a part of the realty into personalty, and putting it into marketable form. The very process of mining is, in a sense, equivalent in its results to a manufacturing process. And, however the operation shall be described, the transaction is indubitably 'business' within the fair meaning of the act of 1909; and the gains derived from it are properly and strictly the income from that business; for 'income' may be defined as the gain derived from capital, from labor, or from both combined, and here we have combined operations of capital and labor. As to the alleged inequality of operation between mining corporations and others, it is of course true that the revenues derived from the working of mines result to some extent in the exhaustion of the capital. But the same is true of the earnings of the human brain and hand when unaided by capital, yet such earnings are commonly dealt with in legislation as income. So it may be said of many manufacturing corporations that are clearly subject to the act of 1909, especially of those that have to do with the production of patented articles; although it may be foretold from the beginning that the manufacture will be profitable only for a limited time, at the end of which the capital value of the plant must be subject to material depletion, the annual gains of such corporations are certainly to be taken as income for the purpose of measuring the amount of the tax. * * * As to what should be deemed "income" within the meaning of § 38, it of course need not be such an income as would have been taxable as such, for at that time (the Sixteenth Amendment not having been as yet ratified), income was not taxable as such by Congress without apportionment according to population, and this tax was not so apportioned. Evidently Congress adopted the income as the measure of the tax to be imposed with respect to the doing of business in corporate form because it desired that the excise should be imposed, approximately at least, with regard to the amount of benefit presumably derived by such corporations from the current operations of the Government. In Flint v. Stone-Tracy Co., 220 U.S. 107, 165, it was held that Congress in exercising the right to tax a legitimate subject of taxation as a franchise or privilege, was not debarred by the Constitution from measuring the taxation by the total income, although derived in part from property which, considered by itself, was not taxable. It was reasonable that Congress should fix upon gross income, without distinction as to source, as a convenient and sufficiently accurate index of the importance of the business transacted. And from this point of view, it makes little difference that the income may arise from a business that theoretically or practically involves a wasting of capital.
http://laws.findlaw.com/us/240/103.html
STANTON v. BALTIC MINING CO, 240 U.S. 103 (1916)
STRATTON'S INDEPENDENCE, LTD. v. HOWBERT, 231 U.S. 399 (1913)
#140. To: Neil McIver, Starwind (#116)
Shiff's defense did not argue that the tax return was not required, therefore the judge could decline to digress into matters not relevant to the defense. Schiff proffered an unsuccessful defense to have his acts found not to be "willful" due to his alleged mental disorder. One filing on behalf of Mr. Schiff, excerpted below, related that "Mr. Schiffs behavior is not rational. It is the product of a Delusional Personality Disorder that is not amenable to treatment and is unlikely to remit." FOR IMMEDIATE RELEASE Professional Tax Resister Sentenced to More Than 12 Years in Prison for Tax Fraud WASHINGTON, D.C. - Longtime tax protestor Irwin Schiff was sentenced in federal district court in Las Vegas to total of 163 months in prison-151 months for tax fraud and an additional 12 months for contempt of court - the Department of Justice and the Internal Revenue Service (IRS) announced today. In addition, Schiff was ordered to pay more than $4.2 million in restitution and to serve three years of supervised release.. In October 2005, Schiff was convicted of conspiring to defraud the United States, aiding and assisting in the preparation of false income tax returns, filing his own false tax returns, and evading the payment of millions of dollars in back taxes owed. This marks the third time Schiff has been convicted for committing federal tax offenses. Schiff previously has spent more than four years in jail for his tax crimes. Two associates of Schiff, Cynthia Neun and Lawrence Cohen, were also convicted of aiding and assisting other taxpayers in the filing of false tax returns. On February 3, 2006, Cohen was sentenced to 33 months in prison. Neun was sentenced yesterday to 68 months in prison and ordered to pay $1.1 million in restitution.. “Last October, a jury of his peers found Mr. Schiff guilty of serious tax crimes related not only to his own tax evasion, but also to his encouraging and enabling others to file false returns. The prison sentence handed down today reflects the seriousness of those crimes,” said Eileen J. O’Connor, Assistant Attorney General for the Justice Department’s Tax Division. “The Department of Justice is working vigorously to vindicate the interests of law- abiding Americans who file returns and pay the taxes the law requires.” . “Mr. Schiff earned this sentence,” said IRS Commissioner Mark Everson. “For years he has preyed on others by holding out false hope that they need not pay their taxes.”. According to the indictment and the evidence introduced at trial, beginning in 1995, Schiff aided thousands of taxpayers in the filing of false federal income tax returns with the IRS that reported zero taxable income in spite of the taxpayers earning reportable income. Schiff owned and operated Freedom Books, a business that sold books, tapes, and informational packages encouraging customers not to pay income tax. According to a government witness who testified at trial, between 1997 and 2002, Freedom Books sold more than $4.2 million of these products.. The evidence presented at trial also proved that Schiff evaded the payment of more than $2 million in taxes he owed the IRS from 1979 through 1985. Schiff concealed income he earned from Freedom Books, in part, by using offshore bank accounts and conducting financial transactions through secret “warehouse” banking services. The evidence also showed that Schiff used debit cards issued by offshore banks to obtain funds he transferred offshore, that he opened bank accounts using multiple tax identification numbers and that he concealed his wealth by hiding his assets through the use of nominees.. Assistant Attorney General O’Connor thanked Tax Division Trial Attorneys Jeffrey A. Neiman, David J. Ignall, and Melissa Schraibman, who prosecuted the case. She also thanked Criminal Investigation Special Agents David Holland, Adam Steiner, and Autumn Woodard of the IRS, and the U.S. Attorney’s Office for the District of Nevada, whose assistance was essential to the successful investigation and prosecution of the case.. Additional information about the Justice Department’s Tax Division and its enforcement efforts may be found at http://www.usdoj.gov/tax. The following is part of a filing made on behalf of Schiff. [From Page 3] The government concedes that the following three-prong test is essential to establish that collateral estoppel applies: In Montana v. United States, 440 U.S. 147, 155 (1979), the Supreme Court established a three-prong test for determining whether collateral estoppel applies: first, whether the issues presented in the subsequent litigation are in substance thesame as those presented in the first case, second, whether controlling facts or legal principles have changed significantly since the first judgment; and third, whether other special circumstances warrant an exception to the normal rules of preclusion ... [Id, U.S. Memo, at 8 (emphasis added)] It is undisputed that Mr, Schiff was found guilty of tax evasion (26 U.S.C. §7201) for the tax 20 years 1980-1982 in 1985. At that time, neither defense counsel, the government nor the court sought a psychological evaluation of Mr. Schiff to determine whether he suffered from a mental disease or defect relevant to the issue of "willfulness," although the district court imposed the following special condition of probation on Mr. Schiff: Consequently, the jury never considered evidence of Mr. SchifFs mental state relevant to the issue of willfulness. Cf. Rule 12.2, F.R.Crim.P., which provides in relevant part: The court may, for good cause, allow the defendant to file the notice late, grant the parties additional trial-preparation time, or make other appropriate orders. [From page 6] Mr. Schiff has been diagnosed as suffering from a long history of chronic and acute bipolar disorder and depression. See WAC Del. at lff[24 and 25, and Exhibit 3 attached thereto. Dr. Luis Carlos Ortega, M.D at Valley Hospital and Medical Center, 620 Shadow Lane, Las Vegas, Nevada 89106, recently treated Mr. Schiff for his bipolar disorder and severe depression; Mr. Schiff was admitted for an extended stay in Valley Hospital in October, 2003. See WAC Del. at ffl[24 and 25, and Exhibit 3 attached thereto Dr. Ortega further opined that Mr. Schiff suffered from a delusional disorder. See WAC Del. at 1J25, and Exhibit 3 attached thereto. After reviewing Dr. Ortega's Discharge Summary, Attorney Cohan obtained Mr. Schiffs agreement to submit to a psychological evaluation to determine whether, to what extent and the likely length of time Mr. Schiff suffers and/or has suffered from a delusional disorder impacting the issue of willfulness See WAC Del. at |26. Thus, on January 6, 2004, Mr. Schiff submitted to a psychological evaluation by Licensed Psychologist Cynthia Barry, Ph.D., 1066 Saratoga Avenue, Suite 100, San Jose, California. Following the evaluation, Dr. Barry prepared a Report dated January 9, 2004, and rendered the following diagnosis: This despite the fact, that he recently experienced a suicidal depression serious enough to require hospitalization (related in part to recognition of a probable prison sentence if he is found guilty of the current charges). In short, Mr. Schiffs behavior is not rational. It is the product of a Delusional Personality Disorder that is not amenable to treatment and is unlikely to remit. Below is a filing by T. Louis Palazzo, attorney for Irwin A. Schiff. Some portions of paragraphs 11-14 denoted by me in blue font. ALL other emphasis, (boldface, underline, italics) as in original. Note on page 11 ["(emphasis added)"] appears in original. http://evans-legal.com/dan/tpfaq/schiff_opp_sj.pdf T. LOUIS PALAZZO Attorney for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA UNITED STATES OF AMERICA, vs. IRWIN A SCHIFF, Civil No. CV-S-01-0895-PMP (LRL) DECLARATION OF WILLIAM A. COHAN IN SUPPORT OF OPPOSITION TO UNITED STATES' MOTION FOR SUMMARY JUDGMENT I, WILLIAM A. COHAN, hereby declare under penalty of perjury: * * * 10. Following his discharge from the hospital on October 17, 2003, I have expended considerable time reviewing missives from and discussing with Mr. Schiff his positions on federal income tax law, the Internal Revenue Code, case law and the Constitution. As he did in his deposition, rather than reasonably considering the numerous problems created by the voluminous contrary authority we must confront and overcome, Mr. Schiff repeatedly launched into recitations of excerpts from his rigidly held preconceptions of "what the Court really meant" and/or exclaimed he is the only person in the world who understands the Supreme Court's decisions and/or knows that "income in the constitutional sense means a corporate profit." Cf Schiff's Deposition (1/ 29/ 03): MR. SCHIFF: Okay. ...In the general terms economic income was income, in a legal sense, before the Brushaber. The Brushaber decision gave a different definition to income. What they did is they used income when they really meant profit. So they talk income separated from its source and only corporate profit is income separated from the source. So every time the Brushaber -- that's why it's such a difficult decision to read because they use the word "income" when they really mean "profit." * * * 54 Code, if you look at the committee reports, they said we're using income in the constitutional sense, and income in the constitutional sense means a corporate profit. Nobody knows this except me, apparently, but I'm educating the public. * * * So to answer your question ... I've had sources of income, but I never had income as used in the 16th Amendment or as used in [IR Code §] 61. 61 says gross income means all income, from whatever source derived, but, of course, it doesn't define gross income because you can't define a word using the same word in the definition Gross income means -- well, the Brushaber decision and a lot of -- the Merchants Loan & Trust Company decision define income as a corporate profit. So now, if you substitute the definition of income -- because income isn't defined in the Code. You know that, okay. So now let's substitute profit, so this is what gross income means, all profit from services, including fees, commissions, fringe benefits. I received no profit from these sources. [Id., 79:11-81:21] *** MR DARMSTADTER: Just so I can understand a little bit more of your theory, and I think I do, the IRS -- based on your theory, the IRS is incorrectly including for at least for individuals * * * is incorrectly determining, at least for individuals, that all economic income is actually taxable income where you believe that taxable income is really only a concept that applies to profits from corporations. MR SCHIFF: It's income separated from the source. That's what the Supreme Court says. The whole purpose of the amendment is income separated from the source. And the only place where income is separated from the sources is in a corporation P&L statement. If the corporation has a million dollars of profit and you tax the profit, you don't know what portion of their dividends or capital gains generated. You're taxing income separated from its source. It's a difficult concept to get, I know. I doubt if anybody who read the Brushaber decision in law school ever understood it because it's difficult to understand. It took me a month using different highlighters to figure out what they were talking about. [Id., 96:13-97:13 (emphasis added)]. - 4 - meaning of income, taxable income, the court's applying the wrong standard, banking and/or money. Cf. Schiff Deposition Vol 1, 99:1-17 ("There's two chapters of [my] book that says why nobody can have taxable income."); 104:17-105:21 ("You better be in gold and silver because the music is going to [stop]. * * * It's going to go down the tubes. I wrote a book on that. Read my book...."); Vol II, 4:2-8:14 ("[I]t's clear that there's a constitutional meaning to the word 'income.' In many of the court decisions they apply the wrong standard. They talk about income in its ordinary sense."), 40 4-41 4, 45:12-19 ("I'll refute it in a different manner. ... They cannot claim I had taxable income."), 67:5-68:22 ("And, of course, I'm an expert in money and banking."), 79:7-25 ("I teach people what the law is. In those days I didn't have as good understanding of the law.") 12. As the Tax Court held: "Petitioner has quoted language out of context and has illogically misinterpreted holdings of cases." Schiff v. C.I.R., T.C. Memo 1984-223 (emphasis added). 13. Schiff's belief system appears to be completely circular: within that system Schiff is right, the government and the courts are wrong and he remains impervious to rational discussion. See also, Schiff v. U.S., 919 F.2d 830, 834 (2nd Cir. 1990), cert, denied, 501 U.S. 1238 (1991), wherein the Second Circuit described Schiff as "an extremist who reserves the right to interpret the decisions of the Supreme Court as he read[s] them from his layman's point of view regardless of and oblivious to the interpretations of the judiciary." 14. Mr. Schiff has ignored my repeated refusals to assert his theories and remains convinced that if I assert them he will prevail because the courts will not take a pro se litigant's arguments seriously. Cf. U.S. v. Schiff, 269 F.Supp.2d 1262, 1269 n. 3 (D. Nev 2003): A: I did that, but I always failed. It was always a futility because the judges the - government always got a summary judgment. I mean, I'm 0 for about 17 civil cases. Q: How many cases? A: Jeez, I think I have more cases - if you put a Schiff versus United States, I think a whole stream of stuff comes up I litigated in the two cases in the U.S. Court of Claims. That's all I have been doing all my life is litigating. One of these days I hope to get it right. [Emphasis added] 17. On December 10,1985, the Honorable Peter C. Dorsey, United States District Judge ------- [1] "Solipsism: the theory that only the self exists or can be proven to exist ..." Webster's Encyclopedic Unabridged dictionary of the English Language (1989 ed.) at p. 1355. - 6 - for the District of Connecticut, imposed the following special conditions of probation on Mr Schiff: "defendant shall undertake counseling, at his own expense, which may include psychiatric counseling as deemed necessary under the guidelines and supervisions of the Probation Department." See Exhibit 10 attached to Declaration of Henry C. Darmstadter and Exhibits in Support of Motion for Summary Judgment. [2] 18. However, none of Mr. Schiff s prior counsel, the courts nor the government have sought a psychological evaluation of Mr Schiff to determine whether he suffers from a mental disease or defect relevant to the issue of "willfulness" and/or guilt and/or his liability vel non for civil fraud penalties and/or which might impact whether a "reasonable-person-and/or-knew-or-had-to-know" analysis applies. 19. Your undersigned has on several occasions encountered clients whom I suspected to be suffering from a delusional disorder or other mental disease or defect For example, I represented the lead defendant, Phillip Marsh, in U.S. v. Marsh, et al., Case No. CR-93-0592-VRW (N D CA), for whom I filed a notice under Rule 12.2(b), F.R.Crim.P., informing the government that Defendant Marsh intended to introduce testimony relating to a mental disease or other mental condition relevant 19 to guilt Forensic Psychiatrist, Jay M. Jackman, M.D, examined and evaluated Mr. Marsh for the defense and concluded that Mr. Marsh suffered from a major delusional disorder In preparation for their Presentence Report, the Probation Department retained Psychologist Cynthia Barry, Ph.D., to assess Mr. Marsh Based on her tests and assessment Dr. Barry likewise concluded that Mr. Marsh suffered from a delusional belief system. See U.S. v. Marsh, 144 F.3d 1229, 1242 (9th Cir. 1998) ------- [2] When asked at his deposition if he had undergone counseling as required under his 27 conditions of probation, Mr. Schiff responded: "I refuse to answer on the grounds I'm not required to be a witness against myself in this proceeding." See Schiff Deposition Vol. I, 55, 19-23. - 7 - My attempts at rational discussions with Mr. Schiff have been more difficult than any I experienced with Mr Marsh. Just a portion of the colloquy between Judge Dorsey and Mr. Schiff at the probation violation hearing held on May 31,1991, illustrates the ignoratio elenchi confronting every attempt to confine Mr. Schiff's discourse to orderly discussion of one topic at a time without repeated digression: MR. SCHIFF: No, no Well first of all - first of all - THE COURT: The question is whether you understand - MR SCHIFF: The returns I filed are not in the package, your Honor. The returns I filed - let me explain something, your Honor. First of all the returns- THE COURT: Please, please. MR SCHIFF: The returns - THE COURT: Please. This is not going to be a forum in which you are going to set the pace. You're going to operate under my rules and under my procedures. You'll have an adequate opportunity to be heard. What the contention of the government is, is that the returns that you filed whatever they may have been, all of them, whatever they may have been, do not qualify as valid tax returns. Now I know you claim to the contrary. MR SCHIFF: You Honor - THE COURT: Whether they are valid or not, at the moment is not the issue. The issue at the moment is whether there is some reasonable basis to believe that the government's position is sound. Now you understand that? MR SCHIFF: No. THE COURT: All right. Then I'm telling you that and I'm not going to conduct an educational course for you. MR SCHIFF: May I just put a word in here edgewise, your Honor? THE COURT: You're going to get a word in - THE COURT: Mr Schiff, you know - MR SCHIFF: Your Honor - THE COURT: I have -I have - I attempted to say put up with you, I won't say that. I have observed the way you conduct yourself. You contort, you misconstrue, you twist and you dodge, you bob and you weave. You don't deal with the issues in the legal context, you deal with them in the way that you would like to see them dealt with. Now let me just tell you what I'm going to do. I'm going to permit the government to make a presentation on - which will probably consist simply of all of the returns that you have filed. I will then take into consideration what you have submitted, that is the memorandum and the motion to dismiss that you filed this morning, and whatever the government wants to file in response, and I presume that all the government is going to do is offer the returns that are on file with the IRS. Is that true, Mr. Jongbloed? MR. JONGBLOED: Yes, that's correct, your Honor... THE COURT: All right. What you show - MR SCHIFF: Well I assume I have a right to cross examine the government's witness? THE COURT: No, you're not going to have a witness, Mr Schiff, because the fact of the matter is that what the government is relying on is not a witness, but on the documents themselves. Show him the documents that you're going to rely on, Mr. Jongbloed. MR SCHIFF: But someone's got to testify that - THE COURT: Now just a minute. Don't tell me what somebody's got to do or somebody does not have to do. MR. SCHIFF: I'm reading from the law your Honor. This - THE COURT: You don't have to read from the law because the fact of the matter is the law as you see it is frequently the law as you make it up in your own head to suit your own convenience. THE COURT: Mr. Schiff if there is no witness, then you're going to have no opportunity to cross examine - MR SCHIFF: WELL THEN THERE'S NO ADVERSE WITNESS. Then there has to be - who are my - who are my adversary witnesses? Who's going to say that the returns I filed - THE COURT: - Please - MR SCHIFF: - are not - THE COURT: You know I've told you before that I'm thoroughly aware of the - and I don't mean this in a theological or Semitic fashion -I am aware of the rabbinical procedure by which you answer a question with a question and you never get anywhere. The fact of the matter is, you're not going to ask me questions because I'm not going to answer your questions. That tactic may work in some forum, it's not going to work here. MR SCHIFF: Your Honor - THE COURT: All I'm telling you is, that the - what I expect the government is going to do. The government will show you the documents and the question of whether there's probable cause is not going to be dependent upon what some witness says, it's going to be dependent upon whether, under the law as I understand it and will apply it, the documents that you have filed comply with the requirements. If they do as you claim, that's the end of the probation violation contention. MR SCHIFF: But your Honor - THE COURT: If they do not comply with the law as you claim, that's the end of the matter . If they do not comply, then I will find probable cause - MR SCHIFF My- THE COURT: - and then you will have the opportunity to have a full hearing on the matter. Do we understand one another? MR. SCHIFF: No, I don't, because my terms of my probation - THE COURT: Then you're not listening. MR. SCHIFF: I am not charged with filing lawful returns. I am charged with not following the direction of my probation - MR. SCHIFF: - officer. THE COURT: No, no, no, no, no. You're charged with violating the conditions that I imposed upon your probation - MR. SCHIFF: Here was the condition. THE COURT: - that says specifically that you are to file all lawfully required returns. That means file valid returns. The government claims that you have not filed valid returns. MR SCHIFF: My probation officer- THE COURT: I don't care what your - MR SCHIFF: said - THE COURT: I don't care what your probation officer said because the fact is that I did not give the probation officer the authority to tell you what you could and could not do. I told you what you were required to do. If you've done it then you're not re- MR SCHIFF: I sent you copies of those returns myself. THE COURT: I don't care what you did, Mr. Schiff. MR. SCHIFF: You never told me that they were -1 filed those returns a year and a half ago. Your Honor, I have a - conditions of probation supervised release, and according to the conditions of my probation - these are the conditions - the conditions say that I am to follow the instructions of the probation officer Now following the instructions of the - my conditions do not say that I have to follow the instructions of every government employee - THE COURT: You see Mr. Schiff, you read those portions - and it's a nice, clever, cute trick- that you read those portions that suits your convenience and you don't read the basic requirement which was that you were required to file all the tax returns which were required by the law. Isn't that what it says? MR SCHIFF: Well first of all - first of all the instructions did not say file income tax returns. It says all returns - THE COURT: You see - you see there's your nice little attempt to distort something. What have I got to do? I've got to tell you exactly what to do? THE COURT: Don't ask me a question Mr. Schiff. MR. SCHIFF: Well it didn't. THE COURT: All right. MR. SCHIFF But more important, your Honor, I have to look to my probation officer for supervisory advice * * * * See RT (5/31/91) 10:1-16:21 (emphasis added), attached hereto as Exhibit 1. 8 Based on all the foregoing and Occam's razor, I was forced to conclude that Mr. Schiff probably suffers from a severe delusional disorder or other mental disease or defect See, e.g., excerpts from the DSM-IV, 297.1 Delusional Disorder, attached hereto as Exhibit 2, which state in pertinent part: Delusions are deemed bizarre if they are clearly implausible, not understandable, and not derived from ordinary life experiences (e.g., an individual's belief that a stranger has removed his or her internal organs and replaced them with someone else's organs without leaving any wounds or scars). In contrast, nonbizarre delusions involve situations that can conceivably occur in real life (e.g., being followed, poisoned, infected, loved at a distance, or deceived by one's spouse or lover) [A] common characteristic of individuals with Delusional Disorder is the apparent normality of their behavior and appearance when their delusional ideas are not being discussed or acted on. In general, social and marital functioning are more likely to be impaired than intellectual and occupational functioning. * * * [Neil McIver #116 to Starwind] 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.
Friday, February 24, 2006
WWW.USDOJ.GOV TAX
(202) 514-2007
TDD (202) 514-1888
Link
[Defendant shall undertake counseling, at his own expense, which may include psychiatric counseling as deemed necessary under the guidelines and supervisions of
[From Page 4]
* * * the Probation Department [See Declaration of William A. Cohan at § l7 (hereinafter "WAC Del."].
(b) Notice of Expert Evidence of a Mental Condition, If a defendant intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case, the defendant must ... notify an attorney for the government in writing of this intention and file a copy of the notice with the clerk.
From the historical record, Mr. Schiff's own descriptions of his behavior and Dr Ortega's recent emergency psychiatric hospitalization report, it appears that the diagnosis of Bipolar Disorder is well established and warranted. Mr. Schiff had a recent episode of depression with suicidal ideation, which required hospitalization, but has been remediated with medication. I also believe there is a concurrent Delusional Personality Disorder. The first condition is an Axis I disorder that generally responds to treatment with psychiatric medication and cognitive behavioral counseling. The second diagnosis is an Axis II personality disorder. For the most part, personality disorders do not respond to treatment and are believed to be characterological in nature. In my opinion, and in the history detailed above, Mr. Schiff's distorted beliefs appear to have grown out of the stress of his business failures and his first, undiagnosed manic episode. However, once developed,
[From page 7] these delusional beliefs have carried forward quite separate from the state of his bipolar mood swings and the impact of psychiatric medication. With very high probability they will continue unabated in the future. There is a significant element of Paranoia in his MMPI protocol; however, he is extremely constricted emotionally so that underlying anger does not surface. His pseudo-rational belief system is confined to one area and there is no disorganization of thought. Further, it does not appear to originate from anti-social tendencies. However, this belief system is not under voluntary control. Individuals suffering from Delusional Disorder have little or no ability to alter their beliefs. Mr. Schiff acknowledges that even his two sons have advised him to pay his taxes and avoid the negative consequences. However, he states that he cannot do so because "I cannot pay what I do not owe."
See WAC Del at § 26 and Dr. Barry's Report attached thereto as Exhibit 4 and incorporated herein as though set forth in full.
PALAZZO LAW FIRM
Nev. Bar No 4128
520 South 4th Street
Las Vegas, NV 89101
(702) 385-3855, 385-3856 (FAX)
IRWIN A. SCHIFF
Plaintiff,
Defendant MR. DARMSTADTER: So for purposes of definition so that we're not misunderstanding each other, could you define what you mean by "economic income?"
11. When confronted with contradictions in his conclusions, Schiff either ignores the challenge or moves on to new exhortations of what the law is and his omniscient "expertise" on the Indeed, Schiff s own counsel's refusal to assert Schiff's tax theories in the hearing on the motion for preliminary injunction should itself have sent a message to Schiff
- 5 -that his tax ideology is legally frivolous. After Schiff s counsel refused to assert Schiff s theories in court, Schiff dismissed her, and represented himself during the remainder of the hearing.
15. In U.S. v. Schiff, 269 F Supp.2d 1262, 1270 (D. Nev. 2003), this Court held: ... Schiff is on notice of the law, notwithstanding his remonstrations that he is the one who is right, and that every single legal authority to the contrary is either bogus or unsound. Schiff s attempt to distinguish the adverse cases on the grounds that they do not specifically involve application of his zero-income tax scheme is totally unavailing All of Schiff s schemes suffer from the same conceptual infirmities rejected time and again by the courts: that income taxes are voluntary Schiff cannot avoid the "know or had reason to know" standard by holding up a differently wrapped package. Schiff knows what's in the box, and therefore knows better. See Estate Preservation, 202 F 3d at 1103 ("The 'knew or had reason to know' standard therefore includes 'what a reasonable person in the [defendant's] ... subjective position would have discovered.'")(citations omitted).
16. Stints of incarceration for years, IRS levies for hundreds of thousands of dollars, substantial sanctions and fines imposed by (1) the Second Circuit for bringing frivolous appeals and (2) the United States Tax Court for presenting groundless and frivolous arguments demonstrate that Schiff s belief system is impervious to negative feed back. [1] Schiff s expectation seems to be that someday the federal courts will experience an epiphany and acknowledge that he has been right all along . Cf., Schiff Deposition Vol. II, 84:8-19: THE COURT: All right. Do you understand that, Mr Schiff? It's not whether it's valid or not, not whether it's
- 8 - MR SCHIFF: This is whether or not I violated the terms of my probation. The terms of my probation state I am to follow the instructions of my probation supervisor. Now my probation supervisor never told me to file returns other than the ones I filed. The basis of the government's claim is that I didn't follow the instructions of Mr Necki... and Mr. Warren .... But, there's nothing in my conditions of probation that say I have to follow the instructions of government employees. Now -
- 9 - MR SCHIFF: 32(1 )(c) says I will have the opportunity to question the witnesses.
- 10 - THE COURT: No, no, no, no.
- 11 - MR. SCHIFF: Did your instructions - did your instructions require to file -
#141. To: nolu_chan (#136)
Your postings really push the envelope spamwise. In no particular order: Yes, funds taken from Kotmair's home were deemed to belong to Kotmair, not SAPF. All funds, materials and property takes from SAPF and deemed the property of SAPF by the IRS were returned. To this day visiters to SAPF's office can see the IRS labels and tape marks on the furniture and filing cabinent that were taken and returned by the IRS. The dialog regarding whether Wheaties purchased & consumed by Kotmair ended up benefiting the fellowship is regarded with a bit of levity and admiration by SAPF members, myself included. In truth, however, if one expends half the calories he consumes to perform work for pay, how can the expense for that food be considered as costing nothing to the worker as mainstream thinking currently does? There certainly is an expense to the worker to perform the work, and compensation is not gain. Though there's levity in Kotmair's Wheaties dialog, He's nonetheless stated a truism. Regarding the practice of charging people for violating a penalty statute: There are many, many taxes in title 26. Not just the income tax. Any corporate tax accountant can probably tell you there are a great number of tax returns, one for each kind of tax. All (federal) covered under title 26. Title 26 Table of contents (partial): Under Miscellaneous (partial): There are many, many taxes covered in title 26. Nearly all of them not only impose a tax but state liability. Apart from withholding agents listed in 1463, who withhold payments to foreign entites. Can you show me the liability statute for the income tax? Most prosecutors can't seem to find it. I fail to see the comparison you attempt to make between being charged with murder and charged with violating a penalty statute, particularly when the former has historically been a common law offense and the latter is clearly statutory and revenue related. Certainly it's reasonable to expect that people intuitively know that murder is wrong. I suppose your comparison is based on the idea that it should similarly be intuitive that people must pay taxes on income even without a statutory requirement. Is that correct? If so, it does appear you are in good company as it would explain why almost no judge is interested in pointing to the income tax liability statute. Among some case "law" postings you posted: Correct me if I'm wrong, but it seems you highlighed in blue the incorrect phrase to associate with Kotmair, as the conclusion prior to the case cite applies to him and not the one following. In any event, these appear to be merely "tax court" decisions, and you should know that tax court is not an article III judicial court, but purely an administrative dispute board little different from a 3rd party arbitration panel. I wouldn't be surprised if those "judges" that preside in tax court are just IRS employees. As for the exceptionally enlarged text "being aware that his anti-tax gurus had been convicted of tax evasion negates good faith defense", one might similarly conclude that being aware of acquital cases like Long & Kuglin's enhances a good faith defense. Re: Schiff, he was of the zero return school which I consider flawed. But I have one book by Schiff which is excellent. Just a short thing called "How an Economy Grows and Why it Doesn't". More of a comic book which is perfect for illustrating basic economics. It is a shame that, barring a miracle, the man will be in jail for the rest of his life. I'd call him a victim of a bureaucratic government.
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.
Subtitle A—Income Taxes
Subtitle B—Estate and Gift Taxes
Subtitle C—Employment Taxes
Subtitle D—Miscellaneous Excise Taxes
Subtitle E—Alcohol, Tobacco, and Certain Other Excise Taxes
CHAPTER 31—RETAIL EXCISE TAXES
CHAPTER 32—MANUFACTURERS EXCISE TAXES
CHAPTER 33—FACILITIES AND SERVICES
CHAPTER 34—POLICIES ISSUED BY FOREIGN INSURERS
CHAPTER 35—TAXES ON WAGERING
CHAPTER 36—CERTAIN OTHER EXCISE TAXES
[CHAPTER 37—REPEALED]
[CHAPTER 38—REPEALED]
CHAPTER 38—ENVIRONMENTAL TAXES
CHAPTER 39—REGISTRATION-REQUIRED OBLIGATIONS
CHAPTER 40—GENERAL PROVISIONS RELATING TO OCCUPATIONAL TAXES
(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;
#142. To: Neil McIver, nolu_chan (#136)
It would seem there was no such charge, nor would it seem SAPF won. Loosing some $44K in a siezure due to co-mingling of assets resulting from deliberate election to not keep records or funds separate (leaving SAPF defenseless against protection of its membership's assets) can hardly be declared a victory. If you're certain a charge of failure to withhold taxes was made, could you please post some documentation (a copy of an indictment for instance)? Something other than Kotmair's assertions.
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 Gospel of Jesus Christ is the only true good news)
#143. To: Starwind (#142)
I will look into the actual charges more formally and let you know. It is/was my impression that that was one of the charges. As for SAPF winning, we do consider the ruling a victory. Yes, 44k was lost but that was solely because it was deemed to be Kotmair's money and not SAPF's. It must be remembered that the IRS went into the office with guns and took just about everything that wasn't nailed down, and that they wanted to shut the operation down, and they failed to do so. They were forced to bring it all back. Remember also that the IRS first appealed the matter and then moved to have their own appeal dismissed with prejudice, which it was. If the IRS won, why would they have appealed? The gist of it was that Garbis ruled SAPF had a right to exist, and everything that was deemed to have been taken from SAPF was returned. In light of what could have happened, we consider that a victory. Obviously the monetary loss is unfortunate, but that notwithstanding.
If you're certain a charge of failure to withhold taxes was made, could you please post some documentation (a copy of an indictment for instance)? Something other than Kotmair's assertions.
#144. To: Neil McIver (#141)
Regarding the practice of charging people for violating a penalty statute: There are many, many taxes in title 26. Not just the income tax. Any corporate tax accountant can probably tell you there are a great number of tax returns, one for each kind of tax. All (federal) covered under title 26. They smack you between the eyes with the specific element of the IRC when they proceed to court. For example, in the PERMANENT INJUNCTION AGAINST SAPF, the Court wrote, Here is another example. UNITED STATES of America, Plaintiff-Appellee, No. 90-3154. Argued June 14, 1991. Rehearing and Rehearing En Banc Andrew B. Baker, Jr. (argued), Asst. U.S. Atty., Dyer, Ind., for plaintiff-appellee. Before POSNER, MANION and KANNE, Circuit Judges. KANNE, Circuit Judge. Like moths to a flame, some people find themselves irresistibly drawn to the tax protestor movement's illusory claim that there is no legal requirement to pay federal income tax. And, like the moths, these people sometimes get burned. Lorin G. Sloan believed these claims and because he acted upon them now faces four months in a federal prison; there can be little doubt that he has been burned. * * * Mr. Sloan ostensibly pursues this matter on his own behalf--or perhaps more correctly without trained legal counsel. In any event, he appeared before us personally to argue his appeal. The primary position taken by Mr. Sloan is that he has been unable to learn from any authoritative source--the tax code, the Internal Revenue Service, or the federal courts--the exact statutory provision which imposes upon him a legal duty to file a federal tax return. This position is, no doubt, formulated to show that he did not willfully violate a "known legal duty." Moreover, in demonstrating to him the existence of this duty, Mr. Sloan insists that our analysis of his obligation to pay the federal income tax be consistent with certain fundamental principles or "standards" which he says he has learned through his studies. Unfortunately, for Mr. Sloan, his "standards" are inapplicable because they have previously been rejected by the federal courts. One such fundamental and immutable principle, he maintains, is that the revenue laws of the United States do not impose a tax on income. But we have squarely rejected this tax protestor argument before, holding that the Internal Revenue Code imposes a tax on all income, Coleman v. Commissioner, 791 F.2d 68, 70 (7th Cir.1986); Lovell v. United States, 755 F.2d 517, 519 (7th Cir.1984), and that wages are income, United States v. Koliboski, 732 F.2d 1328, 1329 & n. 1 (7th Cir.1984). * * * We will treat Mr. Sloan's question as a challenge to the legal sufficiency of the indictment which charged him with tax evasion. To meet the standards imposed by the fifth and sixth amendments to the Constitution, an indictment must "[1] state[ ] all of the elements of the offense charged, [2] inform[ ] him of the nature of the charges so that a defense can be prepared, and [3] enable[ ] the defendant to evaluate any possible double jeopardy problems presented by the charge." United States v. Glecier, 923 F.2d 496, 499 (7th Cir.1991) (quoting United States v. Neapolitan, 791 F.2d 489, 500- 01 (7th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986)); United States v. Foster, 789 F.2d 457, 459 (7th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 273, 93 L.Ed.2d 249 (1986). All the requirements were readily met in this case. First, the three-count indictment stated all the essential elements required to be proved by the government to convict the defendant of federal tax evasion. Glecier, 923 F.2d at 499. "To establish a violation of s 7201, the government must prove willfulness, the existence of a tax deficiency and an affirmative act constituting an evasion or attempted evasion of [the] tax." United States v. Copeland, 786 F.2d 768, 770 (7th Cir.1985) (citing Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965)); see also United States v. Davenport, 824 F.2d 1511, 1516 (7th Cir.1987). Here, all three counts of the indictment established the first required element by alleging that Mr. Sloan "did willfully and knowingly attempt to evade and defeat said income tax due and owing to the United States." The indictment's first count further stated that he "owed approximately $4,142.30 to the United States of America in income tax," providing him notice of the existence of a tax deficiency. [FN1] Finally, the act of filing a false Form W-4 constitutes an affirmative act of evasion or attempting to evade. See Copeland, 786 F.2d at 770. And, once again, all three counts of the indictment indicated that Mr. Sloan had committed this affirmative act. Second, the indictment was sufficient to inform Mr. Sloan of the charges against him. Glecier, 923 F.2d at 499. The indictment cited the statute he was accused of violating (26 U.S.C. s 7201) and identified the specific tax (the income tax) he was obligated to pay. It also provided other information--including the tax year, his taxable income, the amount of tax due, his failure to file an income tax return, his filing of a false Form W-4, and his failure to pay the tax--pertinent to the charges against him. [FN2] Thus, the second requirement was satisfied in the present case. Third, the indictment sufficiently designated the tax, the tax year, and the specific false W-4 forms (those Sloan filed with his employer, Fisher Body Division of General Motors) to eliminate any possibility of objection on the grounds of double jeopardy. Mr. Sloan's indictment was therefore legally sufficient in all respects to support his convictions for tax evasion for the years 1981, 1982 and 1983. * * * The real tragedy of this case is the unconscionable waste of Mr. Sloan's time, resources, and emotion in continuing to pursue these wholly defective and unsuccessful arguments about the validity of the income tax laws of the United States. Despite our rejection of Mr. Sloan's legal analysis of the tax laws, we are not unmindful of the sincerity of his beliefs. On the other hand, we are less sure of the sincerity of the professional tax protestors who promote their views in literature and meetings to persons like Mr. Sloan, yet are unlikely ever to face the type of penalties incurred by him. It may be that our decision will not alter Mr. Sloan's views regarding the tax laws of this country, for he has stated that if we affirm his conviction without applying the law as he understands it, our decision will be "a sham to which I WILL NOT SUBMIT." It may also be that serving his sentence in prison will not alter Mr. Sloan's view. We hope this pessimistic assessment is incorrect. We AFFIRM the conviction of Lorin G. Sloan on all counts.[Neil McIver #141]
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.
This Court has found that Defendants John Baptist Kotmair and Save-A-Patriot Fellowship have engaged in conduct subject to penalty under IRC §§ 6700 and 6701 in connection with their fraudulent promotion of the “U.S.-Sources” or “Section 861" argument. This argument has no basis in law and has been consistently rejected by the courts.
939 F.2d 499
v.
Lorin G. SLOAN, Defendant-Appellant.
United States Court of Appeals,
Seventh Circuit.
Decided Aug. 9, 1991.
Denied Sept. 10, 1991.
Lorin G. Sloan (argued), pro se. FN1. The tax deficiencies differed for each of the three years. Count 2 indicated that Sloan owed $3,618.00 to the United States government for 1982, while count 3 covering 1983 revealed that Sloan was obligated to pay $653.53 to the government.
FN2. We also note that this information satisfies the requirements imposed by the Federal Rules of Criminal Procedure. See FED.R.CRIM.P. 7(c)(1) ( "the indictment or information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.... The indictment or information shall state for each count the official or customary citation of the statute, regulation or other provision of law which the defendant is alleged therein to have violated.").
#145. To: Neil McIver (#141)
Can you show me the liability statute for the income tax? Most prosecutors can't seem to find it. I fail to see the comparison you attempt to make between being charged with murder and charged with violating a penalty statute, particularly when the former has historically been a common law offense and the latter is clearly statutory and revenue related. Certainly it's reasonable to expect that people intuitively know that murder is wrong. I suppose your comparison is based on the idea that it should similarly be intuitive that people must pay taxes on income even without a statutory requirement. Is that correct? You stated at Neil McIver #103 that, "It is not possible to violate a law that prescribes a penalty." The murder statute prescribes a penalty. It is possible to violate the murder statute. It is not a comparison. It is a specific example demonstrating that your argument lacks merit. The UK has common law courts. The US does not. There is no general Federal common law. There was no Federal crime of murder until a statute was passed creating such as a Federal crime. Your supposition is incorrect and based on your delusion that there is no requirement to pay taxes on income, and your meritless denial that there is a statutory requirement to do so. The SAPF officials who acted upon that meritless argument have records from the Bureau of Prisons to document their notable lack of success in persuading anyone who mattered. United States Code U.S. Code as of: 01/22/02 Section 7203. Willful failure to file return, supply information, or pay tax Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution. In the case of any person with respect to whom there is a failure to pay any estimated tax, this section shall not apply to such person with respect to such failure if there is no addition to tax under section 6654 or 6655 with respect to such failure. In the case of a willful violation of any provision of section 6050I, the first sentence of this section shall be applied by substituting ''felony'' for ''misdemeanor'' and ''5 years'' for ''1 year''.[Neil McIver #141]
"Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law."
-- ERIE R. CO. v. TOMPKINS, 304 U.S. 64 (1938) http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=26&sec=7203
TITLE 26 - INTERNAL REVENUE CODE
SUBTITLE F - PROCEDURE AND ADMINISTRATION
CHAPTER 75 - CRIMES, OTHER OFFENSES, AND FORFEITURES
SUBCHAPTER A - CRIMES
PART I - GENERAL PROVISIONS
#146. To: Neil McIver (#141)
Among some case "law" postings you posted: Correct me if I'm wrong, but it seems you highlighed in blue the incorrect phrase to associate with Kotmair, as the conclusion prior to the case cite applies to him and not the one following. A pattern of consistent failures to file for several years is strong evidence that Kotmair would not succeed in court. If you are to invoke these arguments as having merit, in your opinion, you at least have an obligation to warn the readers that those who have acted on such beliefs and gone to court have then gone to prison. TAX PROTESTERS STATUS PER THE BUREAU OF PRISONS Name/Bureau of Prisons Number/Age/Sex/Date of Release/Status JOHN B KOTMAIR EDWARD L KOTMAIR IRWIN A SCHIFF "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 http://laws.findlaw.com/us/498/192.html U.S. Supreme Court In this case, if Cheek asserted that he truly believed that the Internal Revenue Code did not purport to treat wages as income, and the jury believed him, the Government would not have carried its burden to prove willfulness, however unreasonable a court might deem such a belief. Of course, in deciding whether to credit Cheek's good-faith belief claim, the jury would be free to consider any admissible evidence from any source showing that Cheek was aware of his duty to file a return and to treat wages as income, including evidence showing his awareness of the relevant provisions of the Code or regulations, of court decisions rejecting his interpretation of the tax law, of authoritative rulings of the Internal Revenue Service, or of any contents of the personal income tax return forms and accompanying instructions that made it plain that wages should be returned as income. 8 We thus disagree with the Court of Appeals' requirement that a claimed good-faith belief must be objectively reasonable if it is to be considered as possibly negating the Government's evidence purporting to show a defendant's awareness of the legal duty at issue. Knowledge and belief are characteristically questions for the factfinder, in this case the jury. Characterizing a particular belief as not objectively reasonable transforms the inquiry into a legal one, and would prevent the jury from considering it. It would of course be proper to exclude evidence having no relevance or probative value with respect to willfulness, but it is not contrary to common sense, let alone impossible, for a defendant to be ignorant of his duty based on an irrational belief that he has no duty, and forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment's jury trial provision. Cf. Francis v. Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana, 442 U.S. 510 (1979); Morissette v. United States, 342 U.S. 246 (1952). It is common ground that this Court, where possible, interprets congressional enactments so as to avoid raising serious constitutional questions. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 575 (1988); Crowell v. Benson, 285 U.S. 22, 62 , and n. 30 (1932); Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 465 -466 (1989). It was therefore error to instruct the jury to disregard evidence of Cheek's understanding that, within the meaning of the tax laws, he was not a person required to file a return or to pay income taxes and that wages are not taxable income, as incredible as such misunderstandings of and beliefs about the law might be. Of course, the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws, and will find that the Government has carried its burden of proving knowledge. B Cheek asserted in the trial court that he should be acquitted because he believed in good faith that the income tax law is unconstitutional as applied to him, and thus could not legally impose any duty upon him of which he should have been aware. 9 Such a submission is unsound, not because Cheek's constitutional arguments are not objectively reasonable or frivolous, which they surely are, but because the Murdock-Pomponio line of cases does not support such a position. Those cases construed the willfulness requirement in the criminal provisions of the Internal Revenue Code to require proof of knowledge of the law. This was because in "our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law" and "`[i]t is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care.'" United States v. Bishop, 412 U.S. 346, 360 -361 (1973) (quoting Spies v. United States, 317 U.S. 492, 496 (1943)). Claims that some of the provisions of the tax code are unconstitutional are submissions of a different order. 10 They do not arise from innocent mistakes caused by the complexity of the Internal Revenue Code. Rather, they reveal full knowledge of the provisions at issue and a studied conclusion, however wrong, that those provisions are invalid and unenforceable. Thus, in this case, Cheek paid his taxes for years, but after attending various seminars and based on his own study, he concluded that the income tax laws could not constitutionally require him to pay a tax. We do not believe that Congress contemplated that such a taxpayer, without risking criminal prosecution, could ignore the duties imposed upon him by the Internal Revenue Code and refuse to utilize the mechanisms provided by Congress to present his claims of invalidity to the courts and to abide by their decisions. There is no doubt that Cheek, from year to year, was free to pay the tax that the law purported to require, file for a refund and, if denied, present his claims of invalidity, constitutional or otherwise, to the courts. See 26 U.S.C. 7422. Also, without paying the tax, he could have challenged claims of tax deficiencies in the Tax Court, 6213, with the right to appeal to a higher court if unsuccessful. 7482(a)(1). Cheek took neither course in some years, and, when he did, was unwilling to accept the outcome. As we see it, he is in no position to claim that his good-faith belief about the validity of the Internal Revenue Code negates willfulness or provides a defense to criminal prosecution under 7201 and 7203. Of course, Cheek was free in this very case to present his claims of invalidity and have them adjudicated, but, like defendants in criminal cases in other contexts who "willfully" refuse to comply with the duties placed upon them by the law, he must take the risk of being wrong. We thus hold that, in a case like this, a defendant's views about the validity of the tax statutes are irrelevant to the issue of willfulness, need not be heard by the jury, and if they are, an instruction to disregard them would be proper. For this purpose, it makes no difference whether the claims of invalidity are frivolous or have substance. It was therefore not error in this case for the District Judge to instruct the jury not to consider Cheek's claims that the tax laws were unconstitutional. However, it was error for the court to instruct the jury that petitioner's asserted beliefs that wages are not income and that he was not a taxpayer within the meaning of the Internal Revenue Code should not be considered by the jury in determining whether Cheek had acted willfully. 11 IV For the reasons set forth in the opinion above, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE BLACKMUN (joined by JUSTICE MARSHALL) wrote: The Court acknowledges that the conclusively established standard for willfulness under the applicable statutes is the "voluntary, intentional violation of a known legal duty." Ante, at 201. See United States v. Bishop, 412 U.S. 346, 360 (1963), and United States v. Pomponio, 429 U.S. 10, 12 (1976). That being so, it is incomprehensible to me how, in this day, more than 70 years after the institution of our present federal income tax system with the passage of the Revenue Act of 1913, 38 Stat. 166, any taxpayer of competent mentality can assert as his defense to charges of statutory willfulness the proposition that the wage he receives for his labor is not income, irrespective of a cult that says otherwise and advises the gullible to resist income tax collections. One might note in passing that this particular taxpayer, after all, was a licensed pilot for one of our major commercial airlines; he presumably was a person of at least minimum intellectual competence. In oral argument to the Supreme Court, Cheek's lawyer stated: All we are asking is that Mr. Cheek be permitted to present that to a jury. If the jury thinks he is a phoney they will convict him. If they think he is sincere they should acquit him. And the Government can get its penalties and fines -- On retrial, Cheek was convicted and sentenced to a year and a day in jail. Note that on remand, Cheek was convicted of a tax law violation: United States Court of Appeals, Defendant was convicted in the United States District Court for the Northern District of Illinois, Paul E. Plunkett, J., of willfully attempting to evade payment of income taxes and willfully failing to file income tax returns. The Court of Appeals, 882 F.2d 1263, affirmed, and certiorari was granted. The United States Supreme Court, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617, reversed and remanded. The Court of Appeals, Kanne, Circuit Judge, 931 F.2d 1206, reversed and remanded. Defendant was convicted again in the District Court, James B. Zagel, J., and appealed. The Court of Appeals, Aldisert, Senior Circuit Judge, sitting by designation, held that: (1) defendant was not entitled to jury instruction on advice of counsel defense; (2) imposition of fine after second trial did not violate defendant's due process rights; and (3) defendant's speedy trial rights were not violated. Affirmed. [Neil McIver #141]
(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;
18066-037
72
White
M
01-24-1984
RELEASED
33337-037
48
White
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12-27-2000
RELEASED
08537-014
78
White
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10-07-2016
FORT DIX FCI
CHEEK v. UNITED STATES, 498 U.S. 192 (1991)
498 U.S. 192 * * *
It seems to me that we are concerned in this case not with "the complexity of the tax laws," ante, at 200, but with the income tax law in its most elementary and basic aspect: Is a wage earner a taxpayer and are wages income?
He had all these crazy beliefs, wages are not income, the income tax is voluntary. To be sure, wrong beliefs. I am not here to defend those beliefs on the merits, but those are statutory beliefs. And he was told that that was the state of the law by attorneys at seminars, and he obviously is not a sophisticated man. And note, this Court and the Government cannot say that a person in Mr. Cheek's position as a matter of law could not have been mistaken. Yet that's the position the Government is urging.
http://www.libertylounge.net/forums/5095-good-case-libertarians-who-dont-believe.html
Seventh Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
John L. CHEEK, Defendant-Appellant.
No. 92-1668.
Argued June 7, 1993.
Decided Aug. 23, 1993.
#147. To: Neil McIver (#141)
I know this will come as somewhat of a shock to your system, but NON-Article III Courts (no, not the Tax Court) can and do administer the death penalty. Just because a Court is not an Article III Court is not cause to dismiss what it can do. As for your assertion that the citations "appear to be merely 'tax court' decisions," I am sure you will not object to my repeating the following citations extracted from the material I quoted. These appear to be some of the exceptions to your observation that the citations I provided "appear to be merely 'tax court' decisions." US v. Ferguson (SD Ind 1985) 615 F.Supp 8 aff’d 793 F2d 828 cert. denied 479 US 933 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 US v. Condo (9th Cir 1984) 741 F2d 238 cert.den 469 US 1164 US v. O.W. Ware (10th Cir 1979) 608 F2d 400 US v. Masat (5th Cir 1991) 948 F2d 923 cert.den 506 US 835 US v. Bowers (4th Cir 1990) 920 F2d 220 US v. Ferguson (7th Cir 1985) 793 F2d 828 cert.den 479 US 933 US v. Trowbridge (9th Cir unpub 3/26/97) 110 F3d 71(t) cert.den 520 US 1235 US v. Hart (ND Ind 1987) 673 F.Supp 932 US v. Shields (8th Cir 1981) 642 F2d 230 cert.den 454 US 848 US v. Rifen (1978) 577 F2d 1111 US v. Willie (10th Cir 1991) 941 F2d 1384 cert.den 502 US 1106 US v. Hildebrand (8th Cir 1998) 152 F3d 756 US v. Fulbright (9th Cir 1997) 105 F3d 443 cert.den 520 US 1236 US v. Shields (8th Cir 1981) 642 F2d 230 cert.den 454 US 848 US v. O.W. Ware (10th Cir 1979) 608 F2d 400 US v. Schiefen (D SoDak 1995) 926 F.Supp 877 aff'd (8th Cir 1996) 81 F3d 166 mand.denied 522 US 1074 Vaughn v. US (WD La 1984) 589 F.Supp 1528 Charczuk v. CIR (10th Cir 1985) 771 F2d 471 US v. Cheek (7th Cir 1989) 882 F2d 1263 Cheek v. US (1991) 498 US 192, 112 L.Ed.2d 617, 111 S.Ct 604 US v. Cheek (7th Cir 1993) 3 F3d 1057 cert.den 510 US 1112 US v. Masat (5th Cir 1991) 948 F2d 923 cert.den 506 US 835
[Neil McIver #141] In any event, these appear to be merely "tax court" decisions, and you should know that tax court is not an article III judicial court, but purely an administrative dispute board little different from a 3rd party arbitration panel. I wouldn't be surprised if those "judges" that preside in tax court are just IRS employees.
#148. To: Starwind, all, thread (#11) (Edited)
A truly free society enjoys (or should enjoy) the benefit of rational dispute without the threat of incarceration and should be able to redress grievances without hiring a lawyer or becoming one their self. When an issue is as pervasive as taxation is, having some potential application to every citizen regardless of their financial status or level of education, it would appear reasonable that these mandates should be written in plain enough language, in simple terms understandable to all affected by them. The necessity to draft regulatory instructions in incomprehensible legal terms, that are defined in law dictionaries, buried within countless volumes of "code", is more likely the result of high tech pettifoggers representing corporate evaders of taxes than the outgrowth of common citizens expecting fair treatment and an honest government, both of which most would admit is a far cry from the situation in America's tax system. The (legally created) fiction that people and corporations should be treated equally under the law is simply an outrageous fraud. This fraud allows the continuance of an admittedly incomprehensible tax system that defies common sense, especially when combined with a debt based economic system flooded with fiat currency, and dependent on credit. This unholy marriage (consumated in 1913 under questionable circumstances) is only beneficial to powerful bankers, corporate marauders and government thieves ultimately resulting in the ruination of the family unit and the nation by forcing two people to work in order to earn one living after taxes. The end result is that 20 years after the 1913 Federal Reserve Act and the Income Tax Act were implemented, America was bankrupt. This bankruptcy has been kept quiet while the looters pilfered America's natural resources and abused its populace's labor. Many would argue that we are the greatest nation on earth, we are technologically superior and even that we have a higher standard of living than most of the entire world. I would remind those delusional people that we are the greatest debtor nation on earth today, and many of our counterparts are coming out from under the effects of this assumed grandeur and demanding a return on their investment in American debt instruments that are increasingly devalued. Anyone refusing to look at the wholesale gutting of America's assets such as ports, national parks, roads, and other critical infra-structure, along with the imposition of the NAU, NAFTA, GATT, WTO, Agenda 21, etc., etc. is in denial or willingly delusional. These activities are not simply the natural progression of a nation state into an international federation, this is imposition of bankruptcy proceedings through international agencies such as the IMF and World Bank that represent the interests of international banking cartels that pit one nation's debt against another's in order to maintain discipline and control of them all. What I'm attempting to point out is that we can cling to the illusion of greatness and prosperity until it collapses. Our problem in this nation is far more problematic than represented by the antics of Irwin Schiff, Bob Schultz and Joe Banister. But it all starts and ends with the acceptance of fraud. Whether or not we as a nation have the ability to return to simple honesty in our lives devoid of legalese, pettifogging miscreants, crooked judges that fear the IRS, senile thieving perverts in Congress, and an ignorant apathetic population is up for debate, but there can hardly be any question we are headed in the wrong direction like a runaway freight train without an engineer. When the only way to actually be heard by the government is to hire lobbyists and load them down with bribes for the politicians sometimes the court system looks like the only other alternative. People like Schiff, Kotmair, Schultz, Russo and Banister approach this unseemly venue as a last resort in a vain attempt to salvage whatever unfounded notions of liberty remain ingrained in their pea brains in spite of the obvious. Hoping against hope that there's still one reasonable judge that will sacrifice his career in the interest of liberty and freedom ... when that is not the purpose of the court system ... it's about control, period. The world has always had laws. The laws have always been used to exploit and control the masses for an elitist class ... nothing new here, it's easier to control slaves that are conditioned to believe they are free. Anyone willing to support the mumbo-jumbo that oozes out of D.C. whether it's a legislative measure, a judicial opinion or an executive imperative does so out of ignorance, fear or for their own gain, not for righteousness sake. The same courts you and others are so proud to quote have authorized numerous frauds such as slavery in the past, so cut the high minded horseshit and face the facts. The only proper response to an IRS Summons is ... Fuck you and the horse you rode in on, any attempt by you or any of your bloodthirsty agents to interfere with my life will be considered an act of war and treated as such, I support the 2nd Amendment.
Reading a law dictionary and arguing specious definitions of legal terms
"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
#149. To: nolu_chan (#147)
Another round of spaming, I see. Question: What is your personal view based of income taxes? (based on your understanding of them, of course). Do you consider it a good, proper and moral means of raising revenue? I ask because it seems both myself and Starwind have volunteered our personal views on the subject, but I don't recall you doing so. I must say that based on your postings, you favor them passionately. In fact, you come off like an IRS agent. If not an actual employee, at least someone who has some vested reason to promote its practices. Regarding your comment #144, you've completely lost site of the discussion. The topic was the practice of people being charged with violating a penalty statute. You did later post and citation of someone being charged with "violating" section 7203, along with the text of that section (presumably accurately). Anyone can see that it merely describes the penalties to be imposed upon someone who does not file. It is clearly not possible to violate this statute, as 7203 does not place any requirement or duty upon anyone except for the judge who is in a position to sentence someone. Re: Comparisons with murder: Murder is almost always a state crime, not a fed crime. Feds only have jurisdiction on murder cases that occur within federal jurisdictional areas that are outside of the jurisdiction of any of the union states. Now you can make up whatever nonsense you want in comparing the intuitive nature in our knowing that murder is wrong with some mystical fiction that a particular tax is owed even absent any statute so stating, but it won't change the fact that A) 7203 ONLY prescribes the punishment for someone who is convicted of willful failure et al and B) it is impossible for any person outside of a judge to "violate" this section. Quote some case law on the subject if you wish. I'd be curious on how a judge can say that isn't so while still sounding intelligent. If you want to concede that that's just what happens, fine. I'll accept that as it's apparently true. Now this is a blatant misconstruing of my statement. My clear meaning, in context was that it is not possible to violate a law that itself only prescribes a penalty. You cannot violate a murder law that, itself, only prescribes a penalty to be imposed for committing murder either. Section 1461 establishes liability for the income tax. Such liability must be fulfilled. Of course this applies to payments made to foreigners and the person liable is the withholding agent who made the payment to them. Given that, your sentence above shows you don't understand my suppositions. (BTW, if you can find a second liability statute in subtitle A, title 26, do let me know). SAPF "officials"??? Where did that designation come from? If you're referring to John and Edward Kotmair, and Schiff, then I'll mention that John was convicted based on activities from the early 70's, before SAPF was created. Edward, to my knowledge, is not active in the fellowship, and Irwin, if he ever was a member, and I don't know that he was, advocated arguments not shared by SAPF. What's with the "officials"? Re Cheek case, the SC (according to your citation) declared that an honest belief that one had no duty to file was sufficient to negate the element of willfulness "no matter how unreasonable a court might deem such a belief". It's right in there above one of the portions of code you bolded, but which, it seems, didn't suit you to highlight for a reason I could speculate on. I must say it seems almost your mission to stuff as much of this case sites in my face as you possibly can. In case there's any question on sincerity, you should keep in mind that the vast majority of those who become members of SAPF do so out of principle, not greed. Anyone coming to SAPF with the idea that they'll get in on this fight of applying the law as written to get rich is sadly mistaken. That's where the "Patriot" comes from in "Save-A-Patriot". I'm sure it's hard for some to comprehend that people would do things just because it's right even if it means being much worse off, but there are some of us still around. I recall reading one of the IRS arguments against SAPF that no one would fight the IRS if there wasn't some monetary reward. I guess the idea that people might just have principles is just such a foreign concept among IRS agents and employees. Judge Garbis already has found that Kotmair is also sincere in his beliefs. The 44K aside, SAPF won it's case agains the IRS in 96. Sorry, but I'm not licensed to give legal advice, and I wouldn't want to say anything that might be construed as such. That goes for any suggestion that people are not required to file, and it goes for any suggestion that people are required to file. I can not, will not, do not, and have not advised either. Each and every person will have to make up their own mind on what to do and consider, to whatever lengths they themselves deem proper, the hazards of whatever course they entertain.
You stated at Neil McIver #103 that, "It is not possible to violate a law that prescribes a penalty." The murder statute prescribes a penalty. It is possible to violate the murder statute. It is not a comparison. It is a specific example demonstrating that your argument lacks merit.
Your supposition is incorrect and based on your delusion that there is no requirement to pay taxes on income, and your meritless denial that there is a statutory requirement to do so.
The SAPF officials who acted upon that meritless argument have records from the Bureau of Prisons to document their notable lack of success in persuading anyone who mattered.
A pattern of consistent failures to file for several years is strong evidence that Kotmair would not succeed in court.
If you are to invoke these arguments as having merit, in your opinion, you at least have an obligation to warn the readers that those who have acted on such beliefs and gone to court have then gone to prison.
#150. To: noone222 (#148)
kudos, outstanding post.
#151. To: nolu_chan, noone222 (#147)
nolu, have you watched Russo's Freedom To Fascism? if not, why not? if you have, i'd very much like to get your opinion about the several former IRS agents, including Banister, who learned the truth and who have challenged the almighty IRS to "show me the law." to date, there has been no answer. any enforcement of their statutes/codes is because they have the power to do so, not because it's lawful or legal. judges go along with the program because they themselves are scared to death of the IRS. see noone's #148.
#152. To: Neil McIver (#149)
that's grotesquely farcical....it sounds like that idiot IRS commissioner (Rossotti?) Russo interviewed in FtF. btw, what about that voluntary compliance????
I recall reading one of the IRS arguments against SAPF that no one would fight the IRS if there wasn't some monetary reward.
#153. To: noone222 (#148)
When an issue is as pervasive as taxation is, having some potential application to every citizen regardless of their financial status or level of education, it would appear reasonable that these mandates should be written in plain enough language, in simple terms understandable to all affected by them. While I sympathize with your desire for simplicity and clarity, taxation as applied to everyone is a complex subject and some degree of experience is required to comprehend it. But that is no different than medicine, construction, aviation, navigation, even farming. You have no expectation of being able to diagnose or operate on your own pancreatic cancer. You have no expectation of being able to design and build a bridge, etc. Every discipline has its specialized terminology that has meaning to those experienced in that discipline and the meanings aren't "common". Were I to decide I ought to be able to repair my own roof simply because everybody has a roof, roofs are important, and they're just angled or flat, shingled, tarred, or steel, over some supports - I'd set myself up for a nightmare "home project". I lack the tools. I lack the knowledge of how my particular roof is made. I lack the experience of knowing what materials to buy. I have no practice with either tools or materials. And the "obvious" is seldom so. A "2 by 4" isn't really 2 inches by 4 inches. Shingles can not be butted together, an expansion gap must be allowed. You might try home-remedies for a cold, but you wouldn't try to diagnose or remedy coughing up blood. Complying with or practicing tax law likewise has specialized experience, tools, and terminology. There are simple tax forms for simple circumstances, but if you're going to argue "tax law" or the invalidity thereof, you'll need more specialized knowledge of courts and code. The necessity to draft regulatory instructions in incomprehensible legal terms, that are defined in law dictionaries, buried within countless volumes of "code", is more likely the result of high tech pettifoggers representing corporate evaders of taxes than the outgrowth of common citizens expecting fair treatment and an honest government, both of which most would admit is a far cry from the situation in America's tax system No, it is the result of centuries of layering law upon law (fairly or unfairly) to address new circumstances and ever increasingly complex society, and political tinkering with the tax laws to implement social policy. A flat tax, for example, is unfair to the poor, a sales tax is unfair to the consumer, a property tax is unfair to the homeowner, graduated taxes are unfair to the wealthy, corporate taxes are "just passed on", etc. etc. Society wants roads, schools, hospitals, fire departments and armies to be publicly funded. The poor pay no taxes. Businesses make money and lose money. Families make money and lose money. Workers make money and lose money. Balancing out those simple concepts becomes quite complex in the tax laws. And that doesn't even begin to cover everyone's pet "tax loopholes". Absolutely it is an overly complex and unfair system. But everyone is to blame. Corporations for their lobbying, reporters and teachers for dumbing-down the public, politicians for lying and corruption, the public for tolerance and acquiescence, and also the tax protesters, schemers, and defrauders who spread false legal advice (mistakenly and deliberately). There are honest people as well in all walks of life, but until you learn to recognize the facts of tax law, you'll not recognize honest tax advice either. The (legally created) fiction that people and corporations should be treated equally under the law is simply an outrageous fraud. That belief itself is a fiction. Corporations and people are *not* treated equally under the law. That inequality is the source of much of the unfairness. If a worker were recognized to have a cost-basis in their labor, as does a corporation, their taxable "gain" in their wages would be far smaller. OTOH, the tax law would get even more complex. But if you want to make an omelet, you're going to have to break some eggs. When the only way to actually be heard by the government is to hire lobbyists and load them down with bribes for the politicians sometimes the court system looks like the only other alternative. People like Schiff, Kotmair, Schultz, Russo and Banister approach this unseemly venue as a last resort in a vain attempt to salvage whatever unfounded notions of liberty remain ingrained in their pea brains in spite of the obvious. It is not the only alternative, but worse, the alternative presented by Schiff, Kotmair, Schultz, etc., is a *false* alternative. It is no alternative. It is based on a false understanding of the tax law, the courts, and the rule of law, and on that basis most people reject it out of hand as something akin to anarchy, not surprisingly. But in the process Schiff, Kotmair, Schultz, et. al., have made the discussion exceedingly more difficult because they foment the very ignorance they claim to battle, and they exhaust the open-mindedness and receptivity to IRS abuses and unconstitutional arguments that once existed. Schiff, Kotmair, Schultz, et. al. inept arguments and advice put the broad brush in the hands of the courts and IRS with which we all get tarred. A study of court history shows it used to be fairly easy to bring constitutional challenges on tax issues. That has become almost impossible, no thanks in part to Schiff, Kotmair, Schultz, et. al. Yes their attempts were in vain, but because of their own deliberate ineptitude. There was nothing noble or useful about it. To paraphrase General George S. Patton, taxation wars are not won by filing lost arguments. Taxation wars are won by making the other side file losing arguments. The same courts you and others are so proud to quote have authorized numerous frauds such as slavery in the past, so cut the high minded horseshit and face the facts. And when Patton would tally his fuel and equipment requirements, when Patton would study Rommel's tank tactics, when Patton pointed out Montgomery's failed strategy, was that pride or realistic analysis of how to defeat his enemy in battle? The only difference between battlefields and courtrooms is the ammunition. The only proper response to an IRS Summons is ... Fuck you and the horse you rode in on, any attempt by you or any of your bloodthirsty agents to interfere with my life will be considered an act of war and treated as such, I support the 2nd Amendment. And that, not surprisingly, is why most people stop listening. You opt for the wrong ammunition. We are a nation of laws, of the rule of law, and shooting someone as the "only proper response" and declaring armed warfare on the government's agents is what gets people killed. You may think you're making a noble defense of your liberty, but you'll just get others killed in your crossfire. And for what? To defend the low minded tax arguments of Schiff, Kotmair, Schultz, etc?
(The Gospel of Jesus Christ is the only true good news)
#154. To: Starwind (#153)
are we? only for us little people. not for our elite rulers. bush said it all when he said the constitution is just a goddamned piece of paper. i realize that's simplistic, but in my mind, it really is just as simple as that.
We are a nation of laws, of the rule of law,
#155. To: christine (#154) (Edited)
If you really believe we aren't then just stop obeying them and don't expect others to obey them either. Might will make right, and you know who'll win that argument. Violating that piece of paper just got his party voted out of office, and may yet get him impeached, as Clinton was. For all the faults of the tax code, pretending it doesn't say what it says, doesn't help clear it up any, does it.
are we? [a nation of laws, of the rule of law,]
bush said it all when he said the constitution is just a goddamned piece of paper.
(The Gospel of Jesus Christ is the only true good news)
#156. To: Starwind (#155) (Edited)
that's been my point all along. they have all the might. that doesn't make them right. as for bush being voted out because of that statement and possibly being impeached, i don't believe that will happen. in fact, pelosi et al already said it won't. i'm not a believer in the democrat/republican antipode. nor am i a believer that we vote anyone in or out. it's all about advancing the agenda of the corporate elites and no longer about the welfare of we the people. what to do about it? i have no idea. we're about to lose our country because of [our] treasonous government as the NAU is in the process of being implemented as we type. sigh.
Might will make right, and you know who'll win that argument.
#157. To: christine (#156)
what to do about it? i have no idea. we're about to lose our country because of [our] treasonous government as the NAU is in the process of being implemented as we type. sigh. It damned sure ain't about the welfare of we the people. What to do about it??? We have 2 choices. The founding fathers thought it was worth dying for.... So all I can say is all you "males" out there need to get off the tofu and become MEN!!! Like Noone222 said, the appropriate response is to tell them that "aggressions" on their part will be considered an act of war and treated as such.
it's all about advancing the agenda of the corporate elites and no longer about the welfare of we the people.
(1)Kiss the ring of the master and allow him to continue to rape our children. OR
(2)Grow some balls as our founding fathers did, and FIGHT!!!! Learn to say HELL NO!! NO MORE!!! Take our nation back, and eliminate (not merely incarcerate) ALL traitors who don't give a damn what our children and grandchildren will have to endure - and that includes traitors like Starwind(bag) and Nolu_Chan.... They are either with us or against us, and we ain't takin prisoners!!!
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
#158. To: innieway (#157)
i was thinking just that, innieway! there are only two choices, either resist or submit. it is the resistors, afterall, who are responsible for any freedom we've had and will have in the future. it certainly isn't the capitulators. from the Declaration of Independence We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
We have 2 choices. (1)Kiss the ring of the master and allow him to continue to rape our children. OR (2)Grow some balls as our founding fathers did, and FIGHT!!!! Learn to say HELL NO!! NO MORE!!!
#159. To: christine (#158)
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. The U.S. Government has definitely become destructive of those ends. And there are many people that decide to submit to them since they feel helpless to resist them ... if our ancestors had taken this approach we'd still be British subjects.
Life, Liberty and the pursuit of Happiness.
"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
#160. To: noone222, innieway, Artisan, christine, Neil McIver, All (#159) (Edited)
http://sendnomoney.com/Sound/July_2006_Gary_This_is_Keven.mp3
Check this out.
"It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages." Thomas Jefferson to John Taylor, 1798
#161. To: christine (#156)
I lean towards trying to call a Constitutional Convention. 23 states allow voter initiatives that might be usable to force those state legislatures to call for a convention (2/3 states needed to call for a convention), and in other states perhaps voter organizations can pressure candidates to "pledge" to call a convention. Amendments would be: Balanced Budget: Monetary reform: Phaseout Entitlements: Eliminate international obligations: Term Limits: Even if the convention never gets off the ground, or never even out of the planning stage, just the idea might be enough to stimulate a more open discussion of what is wrong and how to improve it (if not fix it), and maybe jar congress into some action before it looses control. Adoption of just one of the above amendments would improve things considerably, IMO, one way or another. Candidates up for election are the most susceptible to giving a voice to the ideas even if they shy away from advocating a constitutional convention. The internet can be a powerful grass-roots tool to spread an idea and organize like-minded people, if there is focus and a concrete goal: Hold a Constitutional Convention, debate the amendments (revised no doubt), vote up or down.
what to do about it?
Tax Uniformity:
The internet would be ideal to push/organize the agenda. I don't know about the logistics of holding a convention, but every party that wants to have a voice would be required to advocate, support calling the convention, and assist with its organization, even if that party wanted to advance a different agenda at the convention.
All taxpayers are subject to the same laws. No distinctions anymore among corporate vs indivdiual vs organization. No gradations - every payer pays the same percentage on their gain, not on their income and the rules for determining "gain" must be uniform for everyone - no distinctions. Outlaw property taxes, estate taxes, and gift taxes. All local revenue can be generated only by uniform gain tax or local use or sales taxes.
The government can not spend nor enact entitlements for future expenditures of more than 10% over revenues, and that 10% overage can only be approved by 3/4ths of the congress, and that 10% is computed on revenue and never on overage and must be reauthorized every year. (ie 10% overage doesn't carry over and doesn't include any prior overage). In event of revenue shortfalls or extraordinary expenses, other expenditures must be cut until the budget balances. The government can borrow, but only short-term and all borrowing must be paid off by the end of every presidential term. No administration can run up debts to be paid off by future administrations.
Zero-inflation targeting: The government can not, in any given year, print more currency than the nominal GDP requires. GDP metrics are based solely on actual prices charged for goods and services - no imputations or adjustments and all weightings are based on actual census figures.
All existing commitments in Social Security and Medicare will be met, but no new entrants will be accepted and existing contributions and obligations will be frozen and never increased. The government is henceforth restricted from any and all entitlement or loan programs. Expenditures only for goods, services, and operations.
No more loans or forgiveness of past loans to other countries, with the sole exception being disaster recovery assistance within 180 days of natural disasters and not conflict related, and provided the budget remains balanced. No more contributions to the UN or other treaty organizations disproportionate to what other countries contribute. No funding of IMF or World Bank disproportionate to what other countries contribute.
Mandatory limits on all national/federal offices. 6 2-year terms for Representative, 2 6-year terms for Senator. Either leave Presidential terms as- is or increase to not more than 3 4-year terms.
(The Gospel of Jesus Christ is the only true good news)
#162. To: Starwind, christine, innieway, noone222, lodwick, IndieTX (#161) (Edited)
FORGET IT! The PTB has been pushing for that for many years. If it were to happen there would be no limitations on what the convention could do. You know what happened the last time we had one of those. In 1789, the convention was called ostensibly to reform the Articles of Confederation. In the sweltering heat of summer the building in Philadelphia was sealed up so as to keep the proceedings a secret, lest word leak out that the Articles were to be scrapped and a new government formed. If we were to have a convention, you could kiss the constitution GOOD-BYE forever. As long as it remains, we have the chance to redeem the country. Once it is gone, however, it will be a different story. Anyone who would suggest such folly is a TRAITOR in my book and deserve a traitor's fate. BTW, The problem is and always has been the banksters combined with the mischief of Congress. Get rid of the banksters and the mischief of Congress will cease. Until that time, they are all hogs feeding at the trough on Wall Street.
I lean towards trying to call a Constitutional Convention.
"It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages." Thomas Jefferson to John Taylor, 1798
#163. To: BTP Holdings (#162) (Edited)
lol - puts me in cahoots with those other constitutional convention traitors like Washington, Hamilton, Franklin... surely you remember them, those scurrilous constitution-framer types.
Anyone who would suggest such folly is a TRAITOR in my book and deserve a traitor's fate.
(The Gospel of Jesus Christ is the only true good news)
#164. To: Starwind (#163)
That is a specious reply. If we had men of half the caliber of them here today, we would not be in the shape we are in now. Even Hamilton, the bankers man, was more a man of character and morals than any of these who aspire to lead this nation in any capacity today. Still, I like the anti-federalist positions on many things. They have proved quite prophetic.
lol - puts me in cahoots with those other constitutional convention traitors like Washington, Hamilton, Franklin... surely you remember them, those scurrilous constitution-framer types.
"It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages." Thomas Jefferson to John Taylor, 1798
#165. To: Starwind (#153)
Sympathy is appreciated but doesn't solve any problems. The U.S. Tax System provides deductions that bankers benefit from, at the expense of those unable to afford the purchase of a home. And guys like Ross Perot can grease the palms of politicians to get a 10 Million Dollar Tax waiver while the local waitress at the greasy spoon can't afford shoes for her kids. This nonsense offends my sensibilities. People that rely upon the tax system to earn a living should get a real job. The only difference between battlefields and courtrooms is the ammunition. The difference in my opinion is that on a battlefield everyone expects injustice to prevail, and in modern courtrooms that is a surety. We are a nation of laws, of the rule of law, .... What country do you live in ????????????? [Ever hear of the Patriot Act ?]
While I sympathize with your desire for simplicity and clarity, taxation as applied to everyone is a complex subject and some degree of experience is required to comprehend it.
"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
#166. To: BTP Holdings, Starwind, constitutionalists here (#164)
Whenever public service became a slop-trough of money for a lifetime, instead of a duty of service to the country for a couple of years - our country was doomed.
a village is missing its idiot.
#167. To: Starwind (#161)
This approach automatically considers its objects of taxation to be subject to government authority. The government can lawfully subject its own creations to its authority (corporations), but has no legitimate right when attempting to use majority rules to subject mankind to its authority. Simply put, a majority has no legitimate right to impose its rule upon the minority. We are indoctrinated to think otherwise through the use of polls that the media purports authorize certain activity or at least attempt to provide that mindset. It's the two foxes and a chicken deciding what's for dinner. The Federal Constitution provides the authority for all federal government to exist at all, failure to abide by it constitutes a breach and eliminates that authority to exist by legitimate means, which are generally usurped through police state or military state enforcement policies, in other words "martial law". And for all practical purposes that's what we have in the United States. Our system claims to be based upon the consent of the governed. Today this requires us to agree to be governed by immoral, self-serving, murderers. Of course the governed by consent claim is window dressing that hides the fraud that more accurately should be described as an executive branch dictatorship. Once the strict boundaries set by the Constitution are violated in the least we enter upon the slippery slope of despotism. Federal usurpation at the expense of States rights, denies people any opportunity to live in an environment more attuned to their belief system, forcing a universal federal policy upon everyone without their consent. Corporate finances combined with political corruption have brought us to our current state of affairs and the policy you're advocating would leave it unchanged. I don't believe we can ever go back to the intended limited federal authority envisioned by the framers until we understand that people in the normal course of daily life separated from commerce are untaxable. People have a right to the fruit of their labors that aren't dependent upon government grants of privilege for obtaining them. Private people living private lives have a right to their privacy until they make themselves subjects of government authority through some voluntary action, otherwise nothing can be considered private or consensual. We have become, as a society, accustomed to government interference in increments over time, to a point that the system existing today in no manner resembles the original creation, or its intent. This has allowed a welfare/socialist state that has ONLY SUBJECTS beholden to their benefactor, Uncle Sambo. An example of the lunacy that has become law is the recent U.S. Mint "POLICY" making it illegal to melt down coinage. This policy has determined that what you may have thought was your money because you earned it and were taxed on it, really belongs to the government (or its creditors). Furthermore, some would have us believe that every dollar in circulation is taxable. I am of the opinion this is not so nor was it ever the intent. The U.S. Treasury is beholden to a cabal of private bankers, that have determined every dollar is theirs and we are enslaved to them because we use it. These private bankers/corporations run our government (contrary to popular belief), for their own "gain" absent any concern for peoples' privacy or rights. Another example of diminishing rights is that of gun sales. If you decide to purchase a weapon from a federally licensed gun dealer you might have to register it, if you buy from a private party you don't have to register it. What gives ? Or, should you choose to manufacture alcohol for private consumption, you pay no tax nor do you have to be licensed ... there is a such thing as privacy ... but we are allowing it to be stolen a little bit at a time.
Tax Uniformity: All taxpayers are subject to the same laws. No distinctions anymore among corporate vs indivdiual vs organization.
"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
#168. To: noone222 (#167) (Edited)
Article 1, Section 8 gives Congress that authority over "objects of taxation", as intended by the framers. I don't see how you'll argue (successfully) that an individual selling his labor to a company in exchange for a wage is not commerce, or an individual expending his labor to produce a good/service which he then sells is not commerce. But in both cases the worker is tax- disadvantaged in numerous ways the business is not. What congress has done is apply taxation non-uniformly. Businesses can deduct expenses that the individual can't. Business can declare a basis in its cost of inputs but the worker can't declare a basis against his wage - all of it is considered gain. My intent is simply to allow the worker the same latitude in taxation as is allowed the business, or if congress were to disallow a "loophole" for business, it would be disallowed for the worker as well. If a "flat tax" were implemented, it would apply to all individuals, companies, organizations, trusts, foundations, etc equally. No gain, no tax, no distinctions. If you think the proposal extends the "privileges" accorded a business to the "rights" of an indidvidual and thereby converts individual rights into privileges, please clarify how you see that happening, or propose a different amendment that satisfies you. Hardly. Term limits helps prevent the entrenchment of political corruption, The Fed would be prohibited from inflating, the Treasury prohibited from borrowing (more than could be paid off in 4 years from revenues) and giving away money/ military assitance to other countries eliminated. Phasing out social security and medicare phases out the class warfare. If Corporations pay the same percentage of tax on their profits as the individual pays on his profits, then does that make the corporation less corrupt or the individual more corrupt? Does it matter if politicians can't borrow, inflate, give away, or stay in office forever? Drain the feeding trough and they'll not come.
This approach automatically considers its objects of taxation to be subject to government authority. ... I don't believe we can ever go back to the intended limited federal authority envisioned by the framers until we understand that people in the normal course of daily life separated from commerce are untaxable.
Corporate finances combined with political corruption have brought us to our current state of affairs and the policy you're advocating would leave it unchanged.
(The Gospel of Jesus Christ is the only true good news)
#169. To: Starwind (#168)
My argument would be that when I "trade" my labor and time with any other entity not already subject to governmental privilege no taxable activity has taken place, there has been an equal exchange of value / not "gain". My ability to labor and time are finite and belong to me unless I forfeit them for some benefit or even an expected benefit such as Socialist Security. Corporations owe their very existence to government, where I don't. Corporations, some people and companies often have made an alliance with government for some perceived benefit that also requires them to operate within federal guidelines. God creates man so man is subject to God. Man creates Constitutions which creates government, so government is subject to the Constitution, while men are not. Government is created to "protect" unalienable rights not squash them, tax them, or infringe upon them. They are intended to be "restrained" by the Constitution, not allowed unfettered intervention into men's lives. On the other hand, when a person subscribes to the Socialist Security System, that person waives his unalienable right to feed himself by the fruits of his own labor and joins the Socialist Democracy that agrees to maintain his privileges (such as unemployment and others) as long as he maintains subservience to the dictates of government. So, when a person with a Social Security Agreement works for a Corporation or company that also has an arrangement with government what actually takes place is the government is allowing their slave to work for the Corporation or company, and wants their lease payment. In a previous post I asked what you thought of the 14th Amendment mandate that citizens not question the debt. Soon after the 14th Amendment was passed into law by a congress filled with unelected southern congress people they passed this abomination into what we are expected to accept as law. According to the wording of the 14th Amendment it appears that we're supposed to just shut up and pay whatever debt is amassed by the perps in D.C. ... which my common sense tells me is anathema to everything the original framers of the document had in mind when they determined war rather than submission to the King's statutes. The 14th Amendment violates the intention of everything prior to its implementation. Here's the bottom line in my little world. The government and corporations are both legal fictions that certainly have an ability to deal with each other based upon their mutual fictional status. We can become legal fictions ourselves by volunteering into the Socialist Security Franchise wherein we are created fictionally as JOHN DOE (all caps spelling just like corps) and John Doe becomes the agent for the fiction. My grandfather died in 1958 and he was 58 years young. He was the Chief of the Indianapolis Fire Department, a legal fiction of governmental creation. The Social Security Act was in full force during his employment with the City of Indianapolis (another legal fiction). He never had a Social Security Insurance Account or number. The contrived depression era brought socialism into vogue for the purpose of enslaving the entire nation, and has pretty well subdued the population. You could attend a meeting of staunch Republicans and ask them if any are Socialists. None would admit it while all of them are actually "CARD CARRYING SOCIALISTS". I can't help it if most of America is too stupid to think for themselves and opt to consume every ounce of bullshit they're fed by perverted bureaucraps. Some day when you aren't too busy arguing in favor of the criminal organization operating in the name of the State or United States, take a look at everything that Identifies you. Your driver license, your socialist security card, your billing statements from corporate legal fictions, credit cards etc., and you'll notice that they ALL refuse to spell your name correctly, as your parents ascribed it to you and as you were taught in school, with a Capital first letter and lower case letters following. They ALWAYS spell it in all capital letters because like a corporation that spelling indicates your "fictionalized legal person status" and you happen to be that legal fiction's "agent".
Article 1, Section 8 gives Congress that authority over "objects of taxation", as intended by the framers. I don't see how you'll argue (successfully) that an individual selling his labor to a company in exchange for a wage is not commerce,
"They say Justice is blind and I agree ... so much so that she can't find her way into a courtroom"
noone222 12-17-06
#170. To: All (#169)
SAPF Update: Judge issues Stay in Enforcement of Injunction
(The Gospel of Jesus Christ is the only true good news)
#171. To: Neil McIver (#149)
Frivolous legal gibberish is considered serious posting. Quoting statutes, court decisions and Supreme Court justices is considered spamming. I am, however, opposed to those who state meritless legal arguments as fact, knowing those arguments have been relegated to the ashheap of frivolous arguments by all courts that have considered them. Someone might take such nonsense seriously and act upon it. As you are well aware, those who act upon such nonsense run the risk of financial ruin and time in prison. As you are well aware, not only will such frivolous arguments not succeed in court, it is unlikely that a lawyer will even attempt to make such arguments in court or that the court will entertain such frivolous arguments. Lawyers dumb enough to attempt such frivolous arguments face sanctions from the court. I am rather partial to what Supreme Court Justice Blackmun wrote, "it is incomprehensible to me how, in this day, more than 70 years after the institution of our present federal income tax system with the passage of the Revenue Act of 1913, 38 Stat. 166, any taxpayer of competent mentality can assert as his defense to charges of statutory willfulness the proposition that the wage he receives for his labor is not income, irrespective of a cult that says otherwise and advises the gullible to resist income tax collections."
Another round of spaming, I see.
Another round of inane lunacy masquerading as legal gibberish, I see.
Question: What is your personal view based of income taxes? (based on your understanding of them, of course).
I am generally in accord with what Starwind posted at his #109 [Starwind #109] 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.
Do you consider it a good, proper and moral means of raising revenue?
There is not much that is good about the income tax, as implemented. I do not argue for its moral merit. It is LAWFUL. It is CONSTITUTIONAL. Bad laws are still laws. Laws I disagree with are still laws. I ask because it seems both myself and Starwind have volunteered our personal views on the subject, but I don't recall you doing so. I must say that based on your postings, you favor them passionately. In fact, you come off like an IRS agent. If not an actual employee, at least someone who has some vested reason to promote its practices.
I am not an IRS agent nor an employee, nor have I ever had any affiliation with the IRS, nor do I have any interest, vested or otherwise, in promoting any of its practices.
#172. To: Neil McIver (#149)
There are criminal statutes and penal statutes. There is the penal code or penal laws. There is no penalty statute. You may make up your own terms of art, however, they only apply in your own mind. In the real world, Black's Law Dictionary defines "Criminal Statute. An act of the Legislature as an organized body relating to crime or its punsihment." Section 7203 is under the heading of "CRIMES." Those who willfully fail to file or pay, as required by the IRC, commit a crime. Please feel free to test your frivolous argument out on a judge and let me know how it goes. (a) General rule Section 6012. Persons required to make returns of income (a) General rule Section 6072. Time for filing income tax returns (a) General rule United States Code U.S. Code as of: 01/19/04 Section 7201. Attempt to evade or defeat tax Any person who willfully attempts in any manner to evade or Section 7202. Willful failure to collect or pay over tax Any person required under this title to collect, account for, and Section 7203. Willful failure to file return, supply information, or pay tax Any person required under this title to pay any estimated tax or It is uncontrovertible FACT that Edward L. Kotmair was convicted precisely for violation of IRC 7203. Kotmair appealed, but the conviction and sentence were upheld by the United States Court of Appeals for the Fourth Circuit as shown below. It does not appear that Kotmair even attempted to sell your incredible whopper to the court. How can you possibly argue, with a straight face, that it is impossible to violate IRC 7203 when you know full well that Kotmair, among many others, was fined and imprisoned precisely for conviction on that statute? Failure to File Carpentry Business Owner Sentenced RALEIGH - United States Attorney Janice McKenzie Cole announced that EDWARD L. KOTMAIR 41, of Westminster, Maryland, was sentenced in federal court here on Thursday, February 3, 2000, for failure to file federal income tax returns. Chief U. S. District Judge Terrence W. Boyle imposed a sentence of 27 months imprisonment and a supervised release term of one year. Following a three-day jury trial in September, 1999, KOTMAIR was convicted of failing to file federal income tax returns for the years 1990, 1991, and 1992. During those years, KOTMAIRoperated his own carpentry business, Commercial Installers, located in Cary, N. C. His company earned income of approximately 1.7 million dollars during the three-year period. Some of KOTMAIR's income came from the United States Government while he did subcontracting work on the Library of Congress and a Federal Deposit Insurance Corporation building in Washington, D. C. KOTMAIR was arrested in September, 1998, and has remained in federal custody since that time. During his trial, KOTMAIR attempted to convince the jury that he did not believe he was required to pay income taxes. The jury rejected his argument and found him guilty on all three counts of the indictment. KOTMAIR is a member of Save-A-Patriot Fellowship, a tax protest organization located in Westminster, Maryland. The group, which was founded by KOTMAIR's father, John B. Kotmair, states that U. S. citizens living and working in the United States are not required to pay income taxes. The elder Kotmair was convicted of failure to file federal income tax returns in the early 1980's and served a prison term. Other members of Save-A-Patriot Fellowship, including close associates of KOTMAIR, also have been convicted of income tax charges and sentenced to prison. According to U. S. Attorney Cole, federal courts and juries have consistently rejected the arguments of "tax protest" organizations, including the Save-A-Patriot Fellowship, and have upheld the income tax laws and their applicability to everyone. ---------- UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-4139 UNITED STATES OF AMERICA, v. EDWARD LOUIS KOTMAIR, Appeal from the United States District Court Submitted: March 30, 2001 Decided: April 19, 2001 Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Gregory J. Ramage, LAW OFFICE OF GREGORY RAMAGE, _________________________________________________________________ 1 Unpublished opinions are not binding precedent in this circuit. See _________________________________________________________________ OPINION PER CURIAM: Edward Louis Kotmair was charged with willful failure to file tax Kotmair first argues that counsel was ineffective for failing to call As for Kotmair's challenge to counsel's failure to call his father as Kotmair next challenges the sufficiency of the evidence to support 2 showed that Kotmair had large amounts of income for the years in Kotmair next argues that the district court clearly erred in determining 3 total tax loss exceeded $350,000. See United States v. Daughtrey, 874 The final issue Kotmair raises is whether the district court clearly In conclusion, we affirm Kotmair's convictions and sentence. We AFFIRMED 4 Regarding your comment #144, you've completely lost site of the discussion. The topic was the practice of people being charged with violating a penalty statute. You did later post and citation of someone being charged with "violating" section 7203, along with the text of that section (presumably accurately). Anyone can see that it merely describes the penalties to be imposed upon someone who does not file. It is clearly not possible to violate this statute, as 7203 does not place any requirement or duty upon anyone except for the judge who is in a position to sentence someone.
The requirement to file an income tax return is not voluntary and is clearly set forth in Internal Revenue Code §§ 6011(a), 6012(a), et seq., and 6072(a). See also Treas. Reg. § 1.6011-1(a). They tell you who is required to file a return, and when it must be filed. IRC 7203 makes it a statutory offense to violate the IRC requirements and establishes the penalty for committing the offense. As stated in the Constitution at Article 6, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." Section 6011. General requirement of return, statement, or list
You frivolously assert that "It is clearly not possible to violate this statute, as 7203 does not place any requirement or duty upon anyone except for the judge who is in a position to sentence someone."
When required by regulations prescribed by the Secretary any
person made liable for any tax imposed by this title, or with
respect to the collection thereof, shall make a return or statement
according to the forms and regulations prescribed by the Secretary.
Every person required to make a return or statement shall include
therein the information required by such forms or regulations.
Returns with respect to income taxes under subtitle A shall be
made by the following:
(1)(A) Every individual having for the taxable year gross
income which equals or exceeds the exemption amount, except that
a return shall not be required of an individual - [exceptions listed]
In the case of returns under section 6012, 6013, 6017, or 6031
(relating to income tax under subtitle A), returns made on the
basis of the calendar year shall be filed on or before the 15th day
of April following the close of the calendar year and returns made
on the basis of a fiscal year shall be filed on or before the 15th
day of the fourth month following the close of the fiscal year,
except as otherwise provided in the following subsections of this
section.
TITLE 26 - INTERNAL REVENUE CODE
SUBTITLE F - PROCEDURE AND ADMINISTRATION
CHAPTER 75 - CRIMES, OTHER OFFENSES, AND FORFEITURES
SUBCHAPTER A - CRIMES
PART I - GENERAL PROVISIONS
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.
pay over any tax imposed by this title who willfully fails to
collect or truthfully account for and pay over such tax shall, in
addition to other penalties provided by law, be guilty of a felony
and, upon conviction thereof, shall be fined not more than $10,000,
or imprisoned not more than 5 years, or both, together with the
costs of prosecution.
tax, or required by this title or by regulations made under
authority thereof to make a return, keep any records, or supply any
information, who willfully fails to pay such estimated tax or tax,
make such return, keep such records, or supply such information, at
the time or times required by law or regulations, shall, in
addition to other penalties provided by law, be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $25,000 ($100,000 in the case of a corporation), or imprisoned
not more than 1 year, or both, together with the costs of
prosecution. In the case of any person with respect to whom there
is a failure to pay any estimated tax, this section shall not apply
to such person with respect to such failure if there is no addition
to tax under section 6654 or 6655 with respect to such failure. In
the case of a willful violation of any provision of section 6050I,
the first sentence of this section shall be applied by substituting
"felony" for "misdemeanor" and "5 years" for "1 year".http://www.paylesstax.com/tax_scams/recent_tax_fraud_cases.html
Plaintiff-Appellee,
Defendant-Appellant.
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-97-123-BO)
Raleigh, North Carolina, for Appellant. Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, David J. Cortes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Local Rule 36(c).
returns for the years 1990, 1991, and 1992, in violation of 26
U.S.C.A. § 7203 (West Supp. 2000). Kotmair stipulated that he did
not file tax returns for those years and that he had income in excess
of the exemption amount. The only issue at trial was whether Kotmair's
failure to file was willful. Following his convictions and sentence,
Kotmair appeals. We affirm.
his father as a defense witness and that the district court erred in
denying his motion for a new trial on this basis. Because Kotmair
failed to present argument supporting his challenge to the court's
denial of his motion for a new trial, it is waived on appeal. See Fed.
R. App. P. 28(a)(6); Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999).
a witness, because the record on appeal does not conclusively demonstrate
ineffective assistance of counsel, we do not now address this
issue. See United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999), cert. denied, 528 U.S. 1096 (2000). Rather, Kotmair may raise
this claim in the district court in a 28 U.S.C.A.§ 2255 (West Supp.
2000) motion, if he so chooses.
his convictions. Kotmair stipulated that he did not file tax returns for
1990, 1991, and 1992, and that his income exceeded the exemption
amounts. The only issue before the jury was whether Kotmair's failure
to file was willful. See Cheek v. United States, 498 U.S. 192, 201-
02 (1991). The trial evidence, viewed in the light most favorable to
the government, Glasser v. United States, 315 U.S. 60, 80 (1942),
question, he failed to keep business records, he conducted business
largely on a cash basis, he attempted to hide income and assets by
requiring payments in amounts less than $10,000, he belonged to a
tax protest organization, namely Save a Patriot Fellowship, he was
notified by the IRS of his duty to file a return, and his father--founder
of Save a Patriot--went to jail for his failure to file. This evidence
was sufficient for the jury to infer that Kotmair's failure to file was
willful. See Spies v. United States, 317 U.S. 492, 499-500 (1943)
(finding that inference of willfulness may arise from attempts to conceal
income or assets, failure to keep books or records, and conducting
business largely on cash basis); United States v. Turano, 802 F.2d
10, 12 (1st Cir. 1986) (inference of willfulness from tax protest activities);
United States v. Shivers, 788 F.2d 1046, 1048 (5th Cir. 1986)
(inference of willfulness from disregard of notices informing of duty
to file); United States v. Ostendorff, 371 F.2d 729, 731 (4th Cir. 1967)
(allowing inference of willfulness from pattern of failure to file). We
find that, taking the evidence in the light most favorable to the government,
any rational juror could have found Kotmair guilty beyond
a reasonable doubt. Glasser, 315 U.S. at 80; United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (holding that in resolving
sufficiency of evidence, appeals court does not weigh evidence or
review credibility of witnesses).
that the amount of tax loss exceeded $350,000. He asserts that
applying the tax loss computation rules in U.S. Sentencing Guidelines
Manual § 2T1.2(a) (1992), for the years 1990, 1991, and 1992, yields
a tax loss of $166,889.21. In computing the tax loss, however, Kotmair
failed to include all relevant conduct. The tax loss computation
should include losses suffered by the federal and state governments
in the years of conviction as well as other years in which the defendant's
failure to file was "part of the same course of conduct or common
scheme or plan," unless clearly unrelated. USSG § 2T1.2,
comment. (n.3); see United States v. Bove, 155 F.3d 44, 47 (2d Cir.
1998); United States v. Powell, 124 F.3d 655, 663-65 (5th Cir. 1997).
We find that the district court properly considered losses from years
other than the years of conviction and losses to the states in computing
the tax loss attributable to Kotmair, and therefore did not clearly
err in adopting the recommendation in the presentence report that the
F.2d 213, 217 (4th Cir. 1989).
erred in enhancing Kotmair's offense level by two for the use of
sophisticated means to impede the discovery of the nature or extent
of his offense. "Sophisticated means" includes" conduct that is more
complex or demonstrates greater intricacy or planning than a routine
tax evasion case." USSG § 2T1.2, comment. (n.2). The district court
applied the enhancement after noting that Kotmair engaged in structuring
and laundering of his income to prevent the creation of currency
transaction reports. Because Kotmair failed to offer any
evidence to refute the findings in the presentence report, there was no
clear error by the district court in adopting these findings. See United
States v. Love, 134 F.3d 595, 606 (4th Cir. 1998); United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990).
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argument
would not aid the decisional process.
#173. To: Neil McIver (#149)
Also, your knowledge of the law is once again wanting. Federal jurisdiction is not limited as you state. See, for example, Criminal Law, Second Edition, by Wayne R. LaFave and Austin W. Scott, Jr., West Publishing Co., 1986, pp. 123-4, paragraph 2.8(c): For crimes such as that of Timothy McVeigh, he was subjected to Federal prosecution and could have been subjected to State prosecution in addition to the Federal prosecution. Had he escaped execution on the Federal charge, the state of Oklahoma was standing by to prosecute on state charges. Prosecution by different sovereigns does not constitute double jeopardy. Your recitation of IRC 7203 is an absurdity. The code specifically states, "who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor." It establishes and defines the crime, classifies it as a misdemeanor, and prescribes the penalty therefor. Willful failure to file a return is a crime. It is punishable as established by statute. Terrence W. Boyle, Chief District Judge for Eastern District of North Carolina, at Raleigh had no problem keeping a straight face while sentencing Edward Kotmair to prison for violation of 26 USC 7203. Circuit Judges Niemeyer, Traxler and Gregory apparently were able to keep a straight face while affirming the conviction. As Supreme Court Justice Blackmun wrote, "it is incomprehensible to me how ... any taxpayer of competent mentality can assert as his defense to charges of statutory willfulness the proposition that the wage he receives for his labor is not income, irrespective of a cult that says otherwise and advises the gullible to resist income tax collections." Now this is a blatant misconstruing of my statement. My clear meaning, in context was that it is not possible to violate a law that itself only prescribes a penalty. You cannot violate a murder law that, itself, only prescribes a penalty to be imposed for committing murder either. I did not misconstrue your statement at all. I construed it precisely. Furthermore, IRC 7203 is NOT a statute that ONLY prescribes a penalty. It describes specific behavior that it establishes as being criminal in nature and it prescribes a penalty to be awarded to those who get caught. Again, Supreme Court Justice Blackmun seems applicable, "it is incomprehensible to me how ... any taxpayer of competent mentality can assert as his defense to charges of statutory willfulness the proposition that the wage he receives for his labor is not income, irrespective of a cult that says otherwise and advises the gullible to resist income tax collections." What's with the "officials"? I believe the person who can lawfully convert $41,000 of SAPF funds to his personal use is not just another member of the group. Perhaps his title is just Head SAP. Pompatus of Conversion? Let's me quote it one more time: The court went on to clarify: Claims that some of the provisions of the tax code are unconstitutional are submissions of a different order. 10 They do not arise from innocent mistakes caused by the complexity of the Internal Revenue Code. Rather, they reveal full knowledge of the provisions at issue and a studied conclusion, however wrong, that those provisions are invalid and unenforceable. Thus, in this case, Cheek paid his taxes for years, but after attending various seminars and based on his own study, he concluded that the income tax laws could not constitutionally require him to pay a tax. We do not believe that Congress contemplated that such a taxpayer, without risking criminal prosecution, could ignore the duties imposed upon him by the Internal Revenue Code and refuse to utilize the mechanisms provided by Congress to present his claims of invalidity to the courts and to abide by their decisions. The court further clearly established that the individual cannot claim the law does not apply to him, based on his unique reading of the law, and successfully claim that his action was not willful.
Re: Comparisons with murder: Murder is almost always a state crime, not a fed crime. Feds only have jurisdiction on murder cases that occur within federal jurisdictional areas that are outside of the jurisdiction of any of the union states.
I will repeat that I did not make a comparison with murder. I provided a specific example of the invalidity of your specific argument. (c) Federal Power as to Conduct Within the States. The federal government has the power to create statutory crimes as to conduct within the United States, without regard to federal territoriality, where the United States Constitution expressly grants Congress the power, or, far more common, because the Constitution gives Congress the power to do what is "necessary and proper" to carry out the various expressly conferred powers, such as the power to regulate interstate commerce, to establish post offices, to tax, to prosecute war, and so forth. The scope of federal substantive criminal law of this variety has been growing steadily since the nation was founded, so that at the present time there is a substantial amount of such federal criminal law.
So, for one example, if you choose to murder a Federal law enforcement officer and do so in a state, you may be subjected to Federal prosecution. Now you can make up whatever nonsense you want in comparing the intuitive nature in our knowing that murder is wrong with some mystical fiction that a particular tax is owed even absent any statute so stating, but it won't change the fact that A) 7203 ONLY prescribes the punishment for someone who is convicted of willful failure et al and B) it is impossible for any person outside of a judge to "violate" this section. Quote some case law on the subject if you wish. I'd be curious on how a judge can say that isn't so while still sounding intelligent. If you want to concede that that's just what happens, fine. I'll accept that as it's apparently true.
As I did not compare murder and tax evasion, you seem desperate to invent some mystical nonsense.
You stated at Neil McIver #103 that, "It is not possible to violate a law that prescribes a penalty." The murder statute prescribes a penalty. It is possible to violate the murder statute. It is not a comparison. It is a specific example demonstrating that your argument lacks merit.
Section 1461 establishes liability for the income tax. Such liability must be fulfilled. Of course this applies to payments made to foreigners and the person liable is the withholding agent who made the payment to them. Given that, your sentence above shows you don't understand my suppositions.
Given that people who act on your frivolous suppositions get fined and go to prison, your suppositions only show that you do not know what you are talking about. SAPF "officials"??? Where did that designation come from? If you're referring to John and Edward Kotmair, and Schiff, then I'll mention that John was convicted based on activities from the early 70's, before SAPF was created. Edward, to my knowledge, is not active in the fellowship, and Irwin, if he ever was a member, and I don't know that he was, advocated arguments not shared by SAPF.
What appellation would you prefer? SAPs? Former Inmate in Charge? Re Cheek case, the SC (according to your citation) declared that an honest belief that one had no duty to file was sufficient to negate the element of willfulness "no matter how unreasonable a court might deem such a belief". It's right in there above one of the portions of code you bolded, but which, it seems, didn't suit you to highlight for a reason I could speculate on.
NO. You must utilize misstatement and pretzel logic again. In this case, if Cheek asserted that he truly believed that the Internal Revenue Code did not purport to treat wages as income, , the Government would not have carried its burden to prove willfulness, however unreasonable a court might deem such a belief. Of course, in deciding whether to credit Cheek's good-faith belief claim, the jury would be free to consider any admissible evidence from any source showing that Cheek was aware of his duty to file a return and to treat wages as income, including evidence showing his awareness of the relevant provisions of the Code or regulations, of court decisions rejecting his interpretation of the tax law, of authoritative rulings of the Internal Revenue Service, or of any contents of the personal income tax return forms and accompanying instructions that made it plain that wages should be returned as income.
Cheek had his opportunity to tell the jury that he truly, truly believed that the Internal Revenue Code did not purport to treat wages as income. The jury did not believe him. The jury convicted him and sent his sorry butt to jail. As a further result of his conviction, he also lost his job as a pilot. Cheek asserted in the trial court that he should be acquitted because he believed in good faith that the income tax law is unconstitutional as applied to him, and thus could not legally impose any duty upon him of which he should have been aware. 9 Such a submission is unsound, not because Cheek's constitutional arguments are not objectively reasonable or frivolous, which they surely are, but because the Murdock-Pomponio line of cases does not support such a position. Those cases construed the willfulness requirement in the criminal provisions of the Internal Revenue Code to require proof of knowledge of the law. This was because in "our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law" and "`[i]t is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care.'" United States v. Bishop, 412 U.S. 346, 360 -361 (1973) (quoting Spies v. United States, 317 U.S. 492, 496 (1943)).
The court clearly labeled the contentions of John Cheek as surely frivolous.
#174. To: Neil McIver (#149)
Misconstruing the tax laws to assert some bogus claim to a right to ignore the law is not demonstrating principles... it is demonstrating felony dumb, or at least misdemeanor dumb. What you are selling, the courts not only are not buying, they are levying heavy fines, up to $25,000.00 for frivolous arguments, wasting the time of the court, and demonstrating an unwillingness to respect the tax laws of the United States. Below are a few examples of how your tax-protester arguments are handled in court. http://www.irs.gov/pub/irs-utl/friv_tax.pdf Sanctions Imposed Against Taxpayer’s Counsel: Takaba v. Commissioner, 119 T.C. 285 (2002) B the court rejected the taxpayer's argument that income received from sources within the United States is not taxable income stating that "[t]he 861 argument is contrary to established law and, for that reason, frivolous." The court imposed sanctions against the taxpayer in the amount of $15,000, as well as sanctions against the taxpayer's attorney in the amount of $10,500, for making such groundless arguments. The Nis Family Trust v. Commissioner, 115 T.C. 523, 545-46 (2000) B concluding that the Nis chose "to pursue a strategy of noncooperation and delay, undertaken behind a smokescreen of frivolous tax-protester arguments," the court imposed a $25,000 penalty against them, and also imposed sanctions of more than $10,600 against their attorney for arguing frivolous positions in bad faith. Edwards v. Commissioner, T.C. Memo. 2002-169, 84 T.C.M. (CCH) 24, 42 B the court found that sanctions were appropriate against both the taxpayer and the taxpayer's attorney for making groundless arguments. The court stated that "[a]n attorney cannot advance frivolous arguments to this Court with impunity, even if those arguments were initially developed by the client." In a supplemental opinion, the court imposed sanctions against the taxpayer in the amount of $24,000 and against the taxpayer’s attorney in the amount of $13,050. Edwards v. Commissioner, T.C. Memo. 2003-149, 85 T.C.M. (CCH) 1357. ============================= Sanctions Imposed Against Taxpayers Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988) B the court rejected Wilcox's argument that payment of taxes is voluntary for American citizens, stating that "paying taxes is not voluntary" and imposing a $1,500 penalty against Wilcox for raising frivolous claims. United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993) B the court stated that "[taxpayers'] claim that payment of federal income tax is voluntary clearly lacks substance" and imposed sanctions in the amount of $1,500 "for bringing this frivolous appeal based on discredited, tax-protestor arguments." Abrams v. Commissioner, 82 T.C. 403, 413 (1984) B the court rejected the argument that wages are not income, sustained the failure to file penalty, and awarded damages of $5,000 for pursuing a position that was "frivolous and groundless ... and maintained primarily for delay." Wheelis v. Commissioner, T.C. Memo. 2002-102, 83 T.C.M. (CCH) 1543-45 (2002) - the court rejected the taxpayer's frivolous argument that his wages were not taxable based on his belief that "[p]roperty (money) exchanged for property (labor not subject to tax)" is not subject to incometaxation. The court stated that such claims have been "consistently and thoroughly rejected" by the courts and imposed a penalty against Wheelis in the amount of $10,000 for making frivolous arguments. Carskadon v. Commissioner, T.C. Memo. 2003-237, 86 T.C.M. (CCH) 234, 236 B the court rejected the taxpayer’s frivolous argument that “wages are not taxable because the Code, which states what is taxable, does not specifically state that ‘time reimbursement transactions’, a term of art coined by [taxpayers], are taxable.” The court imposed a $2,000 penalty against the taxpayers for raising “only frivolous arguments which can be characterized as tax protester rhetoric.” Takaba v. Commissioner, 119 T.C. 285, 295 (2002) B the court rejected the taxpayer's argument that income received from sources within the United States is not taxable income stating that "[t]he 861 argument is contrary to established law and, for that reason, frivolous." The Court imposed sanctions against the taxpayer in the amount of $15,000, as well as sanctions against the taxpayer's attorney in the amount of $10,500, for making such groundless arguments. Corcoran v. Commissioner, T.C. Memo. 2002-18, 83 T.C.M. (CCH) 1108, 1110 (2002) B the court rejected the taxpayers' argument that his income was not from any of the sources in Treas. Reg. ' 1.861-8(f), stating that the "source rules [of sections 861 through 865] do not exclude from U.S. taxation income earned by U.S. citizens from sources within the United States." The court further required the taxpayers to pay a $2,000 penalty under section 6673(a)(1) because "they ... wasted limited judicial and administrative resources." Bland-Barclay v. Commissioner, T.C. Memo. 2002-20, 83 T.C.M. (CCH) 1119, 1121 (2002) B the court rejected taxpayers' claim that they were exempt from the federal income tax laws due to their status as "citizens of the Maryland Republic," characterized such arguments as "baseless and wholly without merit," and required taxpayers to pay a $1,500 penalty for making frivolous arguments. Gass v. United States, 2001-1 U.S.T.C. (CCH) & 50,220 (10th Cir. 2001) - the court imposed an $8,000 penalty for contending that taxes on income from real property are unconstitutional. The court had earlier penalized the taxpayers $2,000 for advancing the same arguments in another case. McAfee v. United States, 2001-1 U.S.T.C. (CCH) & 50,433 (N.D. Ga. 2001) - after losing the argument that his wages were not income and receiving a $500 penalty, the taxpayer returned to court to try to stop the government from collecting that penalty by garnishing his wages. The court stated that "bringing this ill-considered, nonsensical litigation before this court for yet a second time is nothing but contumacious foolishness which wastes the time and energy of the court system," and imposed a $1,000 penalty. Trowbridge v. Commissioner, T.C. Memo. 2003-164, 85 T.C.M. (CCH) 1450 - the court imposed sanctions against former husband and wife, $25,000 for Mr. Trowbridge and $15,000 for Ms. Martin, where the taxpayers failed to raise a single plausible argument. Hill v. Commissioner, T.C. Memo. 2003-144, 85 T.C.M. (CCH) 1328, 1331 - the court imposed a $15,000 penalty against the taxpayer because he disregarded warnings from the court that his position was without merit. Furthermore, the taxpayer had been previously sanctioned by the court in another proceeding for raising frivolous arguments. Nunn v. Commissioner, T.C. Memo. 2002-250, 84 T.C.M. (CCH) 403, 410 - the court, on its own motion, imposed sanctions against the taxpayers in the amount of $7,500 after warning taxpayers repeatedly that their frivolous arguments could subject them to a penalty stating "[w]here pro se litigants are warned that their claims are frivolous ... and where they are aware of the ample legal authority holding squarely against them, a penalty is appropriate." Sawukaytis v. Commissioner, T.C. Memo. 2002-156, 83 T.C.M. (CCH) 1886, 1888 - the court imposed a $12,500 penalty against the taxpayer for arguing the income tax is an excise tax and that he did not engage in excise taxable activities. The court found the taxpayer's "position, based on stale and meritless contentions, is manifestly frivolous and groundless." Ward v. Commissioner, T.C. Memo. 2002-147, 83 T.C.M. (CCH) 1820, 1824 - the court imposed sanctions against the Wards in the amount of $25,000 stating that "[t]heir insistence on making frivolous protester type arguments indicates an unwillingness to respect the tax laws of the United States." Gill v. Commissioner, T.C. Memo. 2002-146, 83 T.C.M. (CCH) 1816, 1819 - the court imposed a $7,500 penalty against the taxpayer stating the taxpayer's "insistence on making frivolous protester type arguments indicates an unwillingness to respect the tax laws of the United States." Monaghan v. Commissioner, T.C. Memo. 2002-16, 83 T.C.M. (CCH) 1102, 1104 - the court rejected the taxpayer's frivolous arguments and imposed sanctions in the amount of $1,500, stating that "[h]e has caused this Court to waste its limited resources on his erroneous views of the tax law which he should have known are completely without merit." Hart v. Commissioner, T.C. Memo. 2001-306, 82 T.C.M. (CCH) 934 - the court imposed sanctions in the amount of $15,000 against the taxpayer, because his delaying actions caused the Service and the court to needlessly spend time preparing for the trial and writing the opinion. Sigerseth v. Commissioner, T.C. Memo. 2001-148, 81 T.C.M. (CCH) 1792, 1794 - pointing out that this case involving the use of trusts to avoid taxes was "a waste of limited judicial and administrative resources that could have been devoted to resolving bona fide claims of other taxpayers," the court imposed a $15,000 penalty. MatrixInfoSys Trust v. Commissioner, T.C. Memo. 2001-133, 81 T.C.M. (CCH) 1726, 1729 - in claiming that his income belonged to his trust, the court stated that the taxpayer had made "shopworn arguments characteristic of the tax-protester rhetoric that has been universally rejected by this and other courts," and imposed a $12,500 penalty. Madge v. Commissioner, T.C. Memo. 2000-370, 80 T.C.M. (CCH) 804 - after having warned the taxpayer that continuing with his frivolous arguments - that he was not a taxpayer, that his income was not taxable, and that only foreign income was taxable - would likely result in a penalty, the court imposed the maximum $25,000 penalty. Haines v. Commissioner, T.C. Memo. 2000-126, 79 T.C.M. (CCH) 1844, 1846 - stating, "[p]etitioner knew or should have known that his position was groundless and frivolous, yet he persisted in maintaining this proceeding primarily to impede the proper workings of our judicial system and to delay the payment of his Federal income tax liabilities," the court imposed a $25,000 penalty. I must say it seems almost your mission to stuff as much of this case sites in my face as you possibly can. In case there's any question on sincerity, you should keep in mind that the vast majority of those who become members of SAPF do so out of principle, not greed. Anyone coming to SAPF with the idea that they'll get in on this fight of applying the law as written to get rich is sadly mistaken. That's where the "Patriot" comes from in "Save-A-Patriot". I'm sure it's hard for some to comprehend that people would do things just because it's right even if it means being much worse off, but there are some of us still around. I recall reading one of the IRS arguments against SAPF that no one would fight the IRS if there wasn't some monetary reward. I guess the idea that people might just have principles is just such a foreign concept among IRS agents and employees.
I must say it seems almost your mission to ignore as many case cites as you possibly can. Sincerity, or lack thereof, is not at issue. Your legal opinions would not only FAIL in court, you would be very unlikely to persuade any competent attorney to argue them in court. They have been pronounced frivolous in so many courts that the attorney would face sanctions just for offering up such nonsense and wasting the time of the court.
#175. To: christine, noone222, Starwind (#151)
I apologize for the delay. I have had little spare time lately. I had not watched Freedom to Fascism as it was not mentioned to me until you asked. I noticed that it was mentioned near the top of the thread. I looked to see what it was, saw it had near 2 hour run time, and waited for the Cliff's Notes version which has yet to appear. Since you asked, I have managed to find the time to give it a look. In response to your direct question, I am not particularly impressed with the material on video any more than I am with the material in writing. That there is a tax imposed is clearly stated within the code. United States Code U.S. Code as of: 01/19/04 (a) Married individuals filing joint returns and surviving spouses a tax determined in accordance with the following table: [table deleted] (b) Heads of households [table deleted] (c) Unmarried individuals (other than surviving spouses and heads [table deleted] (d) Married individuals filing separate returns [table deleted] (e) Estates and trusts taxable under this subsection a tax determined in accordance with [table deleted] Section 63. Taxable income defined (a) In general * * * Section 6001. Notice or regulations requiring records, statements, and special returns Every person liable for any tax imposed by this title, or for the Section 6151. Time and place for paying tax shown on returns (a) General rule Regarding the video in general, I found several items that undercut its credibility. Video, From Freedom to Fascism, narration at 1m:26s This is NOT from a court decision It is from a HEARING on a MOTION that had nothing to do with Income Tax. It has some serious editing/context problems. * * * "THE EVIDENCE IS ALL VERY CLEAR. UNTIL THE CONGRESS CAN MEET AND ISSUE A DECLARATION OF WAR TO THE PRESIDENT, PLAINTIFFS STAND BY THEIR COMPLAINT. " * * * THE COURT: WELL, I THINK YOU RAISE SERIOUS ISSUES OF THE WAR POWERS CLAUSE OF THE CONSTITUTION. THE COURT: I WILL SAY I THINK, YOU KNOW, COLONEL, I HAVE TO TELL YOU THAT THERE ARE CASES WHERE A LONG COURSE OF HISTORY IN FACT DOES CHANGE THE CONSTITUTION, AND I CAN THINK OF ONE INSTANCE. I BELIEVE I'M CORRECT ON THIS. I THINK IF YOU WERE TO GO BACK AND TRY TO FIND AND REVIEW THE RATIFICATION OF THE 16TH AMENDMENT, WHICH WAS THE INTERNAL REVENUE, INCOME TAX, I THINK IF YOU WENT BACK AND EXAMINED THAT CAREFULLY, YOU WOULD FIND THAT A SUFFICIENT NUMBER OF STATES NEVER RATIFIED THAT AMENDMENT. MR. SULLIVAN: TRUE STATEMENT. THE COURT: AND NONETHELESS. I THINK IT'S FAIR TO SAY THAT IT IS PART OF THE CONSTITUTION OF THE UNITED STATES, AND I DON'T THINK ANY COURT WOULD EVER -- MR. SULLIVAN: I WOULD LOVE TO HAVE A VERY LONG DISCUSSION WITH YOU ABOUT THAT SUBJECT. THE COURT: -- WOULD SET IT ASIDE. WELL. I'VE SEEN THAT -- I'VE SEEN SOMEWHERE A TREATISE ON THAT, AND I THINK IT WAS -- I THINK I'M CORRECT IN SAYING THAT ACTUALLY THE RATIFICATION NEVER REALLY PROPERLY OCCURRED. MR. SULLIVAN: CORRECT, SIR. THE COURT: YET NONETHELESS, I'M SURE NO COURT'S GOING TO SAY THAT THE 16TH AMENDMENT PERMITTING INCOME TAX IS VOID FOR ANY REASON, ALTHOUGHT I WOULDN'T MIND FILING FOR A REBATE MYSELF. And now to look at an actual court decision which directly considered the argument about the purported ineffective ratification of the Sixteenth Amendment, something Russo chose not to do. The case is U.S. v. Thomas, 788 F.2d 1250 (7th Cir. 1986), cert. den. 107 S.Ct. 187 (1986): UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 85-2120 UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Sahron E. Jones, AUSA (Anton Valukas-USA) 219 S. Dearborn Street, Chicago, IL 60604, for Plaintiff. Author: Easterbrook Before CUDAHAY and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. EASTERBROOK, Circuit Judge. From 1966 through 1976 Kenneth L. Thomas filed tax returns. Then he stopped, claiming that he had no tax liability. He filed a form informing his employer that he had 23 withholding allowances, which dramatically reduced the tax his employer withheld. He ceased filing returns. An indictment filed March 19, 1984, charged Thomas with wilfully failing to file tax returns for the tax years 1979, 1980, and 1981, in violation of 26 U.S.C. § 7203. A superseding indictment filed October 1, 1984, retained these three charges and added four more: failing to file tax returns for 1982 and 1983, and wilfully filing false certificates asking his employer to cease all withholding on the ground that he is "exempt" from taxation, in violation of 26 U.S.C. § 7205. The 1983 return was due after the filing of the first indictment. The trial began on January 15, 1985, and the jury convicted Thomas on all counts. The district court sentenced Thomas to a total of four years' imprisonment and fined him $22,000. As the time sequence suggests, the principal problem is one of compliance with the Speedy Trial Act, 18 U.S.C. § 3161 et seq. Before considering this problem, we clear out the underbrush. I 1. Thomas is a tax protester, and one of his arguments is that he did not need to file tax returns because the sixteenth amendment is not part of the constitution. If was not properly ratified, Thomas insists, repeating the argument of W. Benson & M. Beckman, The Law That Never Was (1985). Benson and Beckman review the documents concerning the states' ratification of the sixteenth amendment and conclude that only four states ratified the sixteenth amendment; they insist that the official promulgation of that amendment by Secretary of State Knox in 1913 is therefore void. Benson and Beckman did not discover anything; they rediscovered something that Secretary Knox considered in 1913. Thirty-eight states ratified the sixteenth amendment, and thirty-seven sent formal instruments of ratification to the Secretary of State. (Minnesota notified the Secretary orally, and additional states ratified later; we consider only those Secretary Knox considered.) Only four instruments repeat the language of the sixteenth amendment exactly as Congress approved it. The others contain errors of diction, capitalization, punctuation, and spelling. The text Congress transmitted to the states was: "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." Many of the instruments neglected to capitalize "States," and some capitalized other words instead. The instrument from Illinois had "remuneration" in place of "enumeration"; the instrument from Missouri substituted "levy" for "lay"; the instrument from Washington had "income" not "incomes"; others made similar blunders. Thomas insists that because the states did not approve exactly the same text, the amendment did not go into effect. Secretary Knox considered this argument. The Solicitor of the Department of State drew up a list of the errors in the instruments and--taking into account both the triviality of the deviations and the treatment of earlier amendments that had experienced more substantial problems--advised the Secretary that he was authorized to declare the amendment adopted. The Secretary did so. Although Thomas urges us to take the view of several state courts that only agreement on the literal text may make a legal document effective, the Supreme Court follows the "enrolled bill rule." If a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted. Field v. Clark, 143 U.S. 649, 36 L. Ed. 294, 12 S. Ct. 495 (1892). The principle is equally applicable to constitutional amendments. See Leser v. Garnett, 258 U.S. 130, 66 L. Ed. 505, 42 S. Ct. 217 (1922), which treats as conclusive the declaration of the Secretary of State that the nineteenth amendment had been adopted. In United States v. Foster, 789 F.2d. 457 (7th Cir. 1986), slip op. 10-12 & n.6, we relied on Leser, as well as the inconsequential nature of the objections in the face of the 73-year acceptance of the effectiveness of the sixteenth amendment, to reject a claim similar to Thomas's. See also Coleman v. Miller, 307 U.S. 433, 83 L. Ed. 1385, 59 S. Ct. 972 (1939) (questions about ratification of amendments may be nonjusticiable). Secretary Knox declared that enough states had ratified the sixteenth amendment. The Secretary's decision is not transparently defective. We need not decide when, if ever, such a decision may be reviewed in order to know that Secretary Knox's decision is now beyond review. Video, From Freedom to Fascism, narration at 23m:35s Larken Rose is in prison with a release date of 01-02-2007 Hart's tax evasion sets bad example; He may live by a different set Spokesman Review, The (Spokane), Jun 10, 2005 Phil Hart never hid his aversion to the federal income tax when he campaigned for the Idaho Legislature last year from northern Kootenai County. But he didn't do anything to bring it to voters' attention either. Now, after Hart has served a quiet first session, his constituents have learned that he owes nearly $90,000 in back income taxes, penalties and interest as a result of a seven-year quixotic joust against the income tax with the Internal Revenue Service. And Erica Curless of The Spokesman-Review has reported that the trust for the Athol home in which Hart lives owes $7,236 in property taxes for 2003 and 2004. The debts are troubling because they indicate that Hart may live by a different set of rules than his constituents. Wage earners in this country are expected to pay part of their incomes to support the basic functions of government, from military protection to road building, from homeland security to unemployment and disability benefits. In Idaho, many share Hart's concern for increasing property tax, but they pay their share to support local governments and schools. An office holder who shirks his duty to pay his share of taxes sets a bad example, no matter how worthy he believes his cause to be. Wisely, Hart has reached an agreement with the IRS to pay back income taxes after his failed crusade against the 16th Amendment, which gives the federal government the authority to tax income. In other words, the structural engineer accepted his medicine for withholding payments and is moving on. As a freshman legislator, he hasn't embarrassed his district by using his Statehouse bully pulpit to lobby against or condemn the federal tax. [christime #151] nolu, have you watched Russo's Freedom To Fascism? if not, why not? if you have, i'd very much like to get your opinion about the several former IRS agents, including Banister, who learned the truth and who have challenged the almighty IRS to "show me the law." to date, there has been no answer. any enforcement of their statutes/codes is because they have the power to do so, not because it's lawful or legal. judges go along with the program because they themselves are scared to death of the IRS. see noone's #148.
Link
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
Section 1. Tax imposed
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)),
There is hereby imposed on the taxable income of every head of a
household (as defined in section 2(b)) a tax determined in
accordance with the following table:
of households)
There is hereby imposed on the taxable income of every individual
(other than a surviving spouse as defined in section 2(a) or the
head of a household as defined in section 2(b)) who is not a
married individual (as defined in section 7703) a tax determined in
accordance with the following table:
There is hereby imposed on the taxable income of every married
individual (as defined in section 7703) who does not make a single
return jointly with his spouse under section 6013, a tax determined
in accordance with the following table:
There is hereby imposed on the taxable income of -
(1) every estate, and
(2) every trust,
the following table: Link
Except as provided in subsection (b), for purposes of this
subtitle, the term "taxable income" means gross income minus the
deductions allowed by this chapter (other than the standard
deduction). Link
collection thereof, shall keep such records, render such
statements, make such returns, and comply with such rules and
regulations as the Secretary may from time to time prescribe.Link
Except as otherwise provided in this subchapter, when a return of
tax is required under this title or regulations, the person
required to make such return shall, without assessment or notice
and demand from the Secretary, pay such tax to the internal revenue
officer with whom the return is filed, and shall pay such tax at
the time and place fixed for filing the return (determined without
regard to any extension of time for filing the return). ...
The first thing they did to accomplish their takeover was to convince Secretary of State Philander Knox to lie to the American people and tell them that the 16th Amendment had been legally ratified by the states when it was not.
Video, From Freedom to Fascism, text display at 2m:03s "If you ... examined [The 16th Amendment] carefully, you would find that a sufficient number of states never ratified that amendment."
REALITY CHECK
U.S. District Court Judge James C. Fox, 2003MOTION FOR A TEMPORARY RESTRAINING ORDER
The quote comes at page 22 of the MOTION hearing record:
HEARING BEFORE THE HONORABLE JAMES C. FOX
SENIOR UNITED STATES DISTRICT COURT JUDGE MR. LEPORE: AND AS I SAID EARLIER, I RELY ON THOSE ARGUMENTS AND OUR ARGUMENTS IN THE BRIEF. IT'S A SHARED POWER. EACH PARTY IS DOING ITS DUTY HERE, AND THE PRESIDENT IS COMMANDER IN CHIEF. THE PRESIDENT HAS MADE HIS DETERMINATION.
United States v. Thomas
Video, From Freedom to Fascism, narration at 2m:24s
788 F.2d 1250 (7th Cir. 04/17/1986)
April 17, 1986
v.
KENNETH L. THOMAS, DEFENDANT-APPELLANT
No. 84 CR 222--Thomas R. McMillen, Judge.
Andrew B. Spiegel, 77 W. Washington Street, Chicago, IL 60604, for Defendant. That very same year, the bankers committed their second and by far most diabolical fraud ever perpetrated on the American people by bribing senators to pass the Federal Reserve Act without the required Constitutional amendment.
That one is just thrown out there and he never returns to it or adds any support to his allegations. I went to see a group of tax experts.
The purported "tax experts" are identified as:
Irwin Schiff is in prison with a release date of 10-07-2016
Larken's wife Tessa is set to begin serving her own sentence shortly after Larken gets out of prison.Link
In sum, of Russo's three purported "tax experts," two are serving prison terms for tax crimes, and the third has reached an agreement with the IRS to pay his back income taxes after his frivolous position circled the bowl and was flushed.
#176. To: nolu_chan, christine, Neil McIver, Starwind (#175) (Edited)
This over used statement implies that there exists both taxable and non- taxable incomes ... and omits mentioning all other types of exchange that operate outside of the scope and purview of the laws ie., IRS/U.S. Treasury / U.S. Congress. Your position considers every dollar to be taxable. This, if true, would leave us in a much worsened condition than was employed by King George and resulted in Revolution. We are witnessing the passage of a plethora of unconstitutional law these days. The Bill of Rights dismantled daily. Our culture, our families and our country are being destroyed by prima facie legal artifice accepted by the ignorant among us, whose numbers are dwindling as more people become aware of the fraud and corruption in D.C. that has escaped its chains and slithered beyond its 10 square mile jurisdiction. You can quote the sophisticated ledgerdemain voiced in rulings by criminals of the most dangerous sort (Judges dependent upon the State for their earnings and fearful of the iRS) that may or may not have any bearing on a natural man, and most often only apply to "certain" parties to a particular case and their "status" to be involved in the litigation. Let's not forget the Dred Scott opinion that blacks are less than human by 40%. Lastly, let us not ignore the cases that are "depublished" at the whim of the system that purge relevant arguments and erase them from judicial memory when they are disfavorable to the State. Another factoid to be considered is that the State / Feds select those cases that are heard at the Supreme Court level and choose the ones that serve their social engineering purposes. As an example, I found a case before it was depublished that related to the issuance of a bench warrant by a Judge . The Bench Warrant was challenged because it violates the separation of powers doctrine. The court ruled in favor of the defendant and against the State in the lower court, finding merit in the argument that Bench Warrants violate separation of powers. Every prosecutor across the State of California filed an amicus brief supporting the State on Appeal. (The Name on the case was "Staph"). In the final ruling on appeal the Judge stated: "We are unable to exalt dry formalism above an exhausted fisc". You're a smart person ... what do you think the Judge was saying ? I asked 10 lawyers that couldn't tell me off hand what was being claimed by the Judge. I know what the Judge was admitting and will be happy to explain after you've had a moment to ponder this judicial abortion.
There is hereby imposed on the taxable income of ....
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#177. To: noone222 (#176)
What "type of exchange" occurs within the United States and operates outside the scope and purview of the U.S. Congress? Wheelis v. Commissioner, T.C. Memo. 2002-102, 83 T.C.M. (CCH) 1543-45 (2002) - the court rejected the taxpayer's frivolous argument that his wages were not taxable based on his belief that "[p]roperty (money) exchanged for property (labor not subject to tax)" is not subject to incometaxation. The court stated that such claims have been "consistently and thoroughly rejected" by the courts and imposed a penalty against Wheelis in the amount of $10,000 for making frivolous arguments. Sawukaytis v. Commissioner, T.C. Memo. 2002-156, 83 T.C.M. (CCH) 1886, 1888 - the court imposed a $12,500 penalty against the taxpayer for arguing the income tax is an excise tax and that he did not engage in excise taxable activities. The court found the taxpayer's "position, based on stale and meritless contentions, is manifestly frivolous and groundless." Ward v. Commissioner, T.C. Memo. 2002-147, 83 T.C.M. (CCH) 1820, 1824 - the court imposed sanctions against the Wards in the amount of $25,000 stating that "[t]heir insistence on making frivolous protester type arguments indicates an unwillingness to respect the tax laws of the United States." As for the implications of that, congratulations, you have correctly identified what it does. Of course it leaves a much worsened condition than existed under King George. The CONSTITUTION, as it existed at the time of the Dred Scott decision, contained the statement about "three fifths of all other persons." The Constitution also prohibited any attempt to tax slavery out of existence. The Constitution also contained a provision that any escaped slave had to "be delivered up on Claim of the Party to whom such Service or Labour may be due." As for your assertion that Blacks were held less than human by 40%, this is also inaccurate. The Constitution refers to them as "persons." Article 1, Section 2. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. Article 1, Section. 9, Clause 1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. Article 4, Section 2, Clause 3. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Article 5. ... Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. fiscus. English law. The king's treasury, as the repository of forfeited property. The treasure of a noble, or of any private person. Black's Law Dictionary, 6th Ed. Your rumor of a case provides insufficient information for any intelligent discussion. Bench Warrants continue to this day. Bench Warrant. Process issued by the court itself, or "from the bench," for the attachment or arrest of a person; either in case of contempt, or where an indictment has been found, or to bring in a witness who fails to obey a subpoena. Black's Law Dictionary, 6th Ed.
This over used statement implies that there exists both taxable and non- taxable incomes ... and omits mentioning all other types of exchange that operate outside of the scope and purview of the laws ie., IRS/U.S. Treasury / U.S. Congress.
The Federal law defines gross income, net income, and taxable income. I accept that you do not like the laws adopted by the United States government and that you prefer your own. Your position considers every dollar to be taxable. This, if true, would leave us in a much worsened condition than was employed by King George and resulted in Revolution.
I consider that every dollar that United States law declares to be taxable is taxable, tax protester nonsense to the contrary notwithstanding. Let's not forget the Dred Scott opinion that blacks are less than human by 40%
The decision in Dred Scott v. Sandford contains no such statement. It does state that there was no way for a Black person to become a citizen. Absent a change in the laws of the United States, it is difficult to see how a Black person could have become a citizen. It is not easy to see how he could be born a citizen, and it was impossible for anyone but free White persons to be naturalized. Chinese were excluded from naturalization until 1943, repeat 1943, that is not a typo. THE UNITED STATES CONSTITUTION ON SLAVERY
Every prosecutor across the State of California filed an amicus brief supporting the State on Appeal. (The Name on the case was "Staph"). In the final ruling on appeal the Judge stated: "We are unable to exalt dry formalism above an exhausted fisc".
Absent a link or cite, your purported "depublished" case is a rumor. The Bench Warrant was challenged because it violates the separation of powers doctrine. The court ruled in favor of the defendant and against the State in the lower court, finding merit in the argument that Bench Warrants violate separation of powers.
#178. To: noone222 (#42)
I did the Phil Marsh program and then some. Marsh was later attacked and they confiscated all of his computers etc., and I got a call from the U.S. Atty asking me to snitch Marsh off. The U.S. Atty told me how bad I'd been fucked by Marsh and that he'd get me some of my money back if I'd turn State's witness against Marsh. I told that scumbag that even if Marsh was wrong, he was right as far as I was concerned, and it sounded to me like he was fishing. I hung up and never heard from him again. Marsh ended up being convicted on one of 47 counts against him ... mail fraud. Nothing to do with taxes. U.S. 9th Circuit Court of Appeals UNITED STATES OF AMERICA, UNITED STATES OF AMERICA, * * * On Appeal from the United States District Court For the Northern District of California Vaughn R. Walker, District Judge, Presiding Argued and Submitted March 9, 1998--San Francisco, California Filed May 27, 1998 Opinion by Judge Noonan * * * OPINION NOONAN, Circuit Judge: Phillip Marsh and his five co-defendants appeal their con- * * * The second trial was two months shorter than the first. On On June 26, 1996 the court pronounced sentence. Phillip Marlene Marsh was sentenced to 5 years imprisonment for * * * The defendants appeal. ANALYSIS * * * [14] Waivers. Two issues now raised by the defendants Phillip Marsh earnestly urges that the exclusion of the evi- We find no plain error. Other issues raised by the defendants need not be consid- * * * [noone222 #42]
http://laws.findlaw.com/9th/9610287.html
USA v MARSH
9610287
No. 96-10287
Plaintiff-Appellee,
D.C. No.
v.
CR-93-00592-VRW
PHILLIP MARSH,
Defendant-Appellant.
No. 96-10288
Plaintiff-Appellee,
D.C. No.
v.
CR-93-00592-VRW
MARLENE MARSH,
Defendant-Appellant.
Before: John T. Noonan and Sidney R. Thomas, Circuit
Judges, and Dean D. Pregerson*, District Judge.
victions of conspiring to defraud the United States by imped-
ing the collection of federal income taxes and their
convictions of related crimes. They also appeal their sen-
tences, which, as to Phillip Marsh total a term of imprison-
ment of 17 1/2 years, as to his wife Marlene a term of 14
years, and as to the other defendants lesser but still substantial
periods of prison.
December 13, 1995 the jury found all six defendants guilty of
violating 18 U.S.C. S 371 by conspiring to defraud the United
States in the collection of income taxes. Phillip and Marlene
Marsh and Jill Spencer were convicted of two counts of viola-
tion of 26 U.S.C. S 7212(a) by corruptly endeavoring to
obstruct the administration of the income tax laws by filing
the liens. Both the Marshes and both the Spencers were con-
victed of violating 26 U.S.C. S 7201 by tax evasion and vio-
lating 26 U.S.C. S 7203 by failing to file tax returns. Both
Marshes were acquitted of ten counts of mail fraud and con-
victed of ten counts of mail fraud in violation of 18 U.S.C.
S 1341. Both Spencers were similarly acquitted, Darrell of
five, Jill of nine counts, and similarly convicted of nine mail
fraud counts; and Coltrane was convicted of six mail fraud
counts. The court denied Rule 29 motions, including motions
by the Marshes and Jill Spencer to dismiss the obstruction
charges on the ground of lack of venue.
Marsh was sentenced to 5 years imprisonment for conspiracy
to defraud the United States; 5 years imprisonment for each
of his ten mail fraud convictions; 5 years imprisonment on
each of two convictions of tax evasion; 3 years imprisonment
for each his two endeavors to impede the administration of the
tax laws; and 1 year imprisonment for each conviction of will-
ful failure to file tax returns. The sentences for conspiracy, tax
evasion and 9 of the 10 mail fraud counts were to be served
concurrently with each other. The 3 year sentences for the
endeavor to impede were to be were to be served consecu-
tively to the other counts and to each other. The 1 year sen-
tences for the two failures to file counts served consecutively
to each other and the other counts. The sentence on the two
tax evasion counts and two failure to file counts totals 7 years.
The 5 year sentence for the tenth mail fraud charge was to be
served consecutively to the extent necessary to produce a total
sentence of 17 1/2 years.
conspiracy to defraud the United States; 5 years each for the
10 mail fraud counts, 5 years each for the two tax evasion
counts, 3 years on each of the 2 counts of endeavor to impede,
1 year on each of the 2 convictions of willful failure to file.
The 3 year sentences for endeavor to impede were to be
served concurrently with each other and consecutively to the
other sentences, the 1 year sentences for failure to file were
to be served consecutively to each other and to the other sen-
tences, and the 5 years for the two tax evasion counts and 10
mail counts were to be served concurrently to each other and
consecutively to the other sentences to the extent necessary to
produce a total sentence of 14 years. The sentence on the two
tax evasion counts and two failure to file counts totals 7 years.
were waived at trial. On the face of the indictments the venue
of the tax counts was wrong: the Marshes and Spencers had
been residents of the Eastern District of California, but they
were being tried in the Northern District. The defendants said
not a word about the venue until they were convicted. They
now contend that the government might have proved some act
in the Northern District that would have related to the tax
courts and justified the venue; they could not know till the
trial was over. The defendants waited too long. They cannot
sandbag the government after the verdict is in. United States
v. Powell, 498 F.2d 890, 891-92 (9th Cir. 1974).
dence of his psychological state was error in the light of our
en banc decision in United States v. Morales, 108 F.3d 1031
(9th Cir. 1997), which he characterizes as establishing a new
constitutional rule that should be applied retroactively.
Griffith v. Kentucky, 479 U.S. 314 (1987). Morales did not
announce new constitutional doctrine but applied the Federal
Rules of Evidence. Marsh cannot benefit from the case retro-
actively. He waived his right to introduce the psychiatrist's
testimony by not seeking to introduce it in the second trial.
ered in view of our ruling on the principal counts.
#179. To: nolu_chan (#177) (Edited)
You cling to fraud like bubble gum to a shoe ! You can't find the case because like so many it was too embarrassing to leave published. We are unable to exalt dry formalism above an exhausted fisc = we are unable to uphold the Constitution because the State Treasury is exhausted.
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#180. To: noone222 (#179) (Edited)
That case would have had to be post-bankruptcy, after 1933.
We are unable to exalt dry formalism above an exhausted fisc = we are unable to uphold the Constitution because the State Treasury is exhausted.
"It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages." Thomas Jefferson to John Taylor, 1798
#181. To: nolu_chan (#178)
Your gleeful acceptance of tyranny saddens me.
As for the implications of that, congratulations, you have correctly identified what it does. Of course it leaves a much worsened condition than existed under King George.
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#182. To: BTP Holdings (#180)
I think it was a late 80's or early 90's case. Like you, I have it here somewhere ... but it might take some digging to find it.
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#183. To: noone222 (#182) (Edited)
If you have the names of the parties and the state, or if it was a U.S. case, it should not be so difficult to find at a real law library, but we need to have the complete citation, including numbers. It may be in the reporters even though it might have been depublished. We might be able to find it on LexisNexis at the college. Look if you have time. Subject matter of the case would be helpful.
I think it was a late 80's or early 90's case. Like you, I have it here somewhere ... but it might take some digging to find it.
"It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages." Thomas Jefferson to John Taylor, 1798
#184. To: nolu_chan (#178)
My error regarding Marsh. I was misinformed about the outcome of their case. I don't know their particular case well enough to comment upon why they were convicted on more charges than I was aware of.
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#185. To: BTP Holdings (#183)
I was at the main San Diego Law Library and had prior knowledge of the case. I asked the Law Librarian why it wasn't in the book. He told me it had been depublished, but he still had the old law book upstairs waiting to be picked up. I asked him to get it for me so I could copy the case. He did. The State of California Appealed from the lower court, and the other Party was named "Staph".
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#186. To: noone222 (#185)
That would make it a 9th Circuit case. Let me know if you find your copy. If you give me the complete case cite, I can have a friend look for it on LexisNexis. Maybe it will come up.
The State of California Appealed from the lower court, and the other Party was named "Staph".
"It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages." Thomas Jefferson to John Taylor, 1798
#187. To: noone222 (#179)
You can't find the case because like so many it was too embarrassing to leave published. Right. You can purport to quote from something that you cannot produce because you claim it no longer exists.
You cling to fraud like bubble gum to a shoe !
#188. To: noone222 (#181)
Your denying reality changes nothing.
Your gleeful acceptance of tyranny saddens me.
#189. To: nolu_chan (#188)
Our realities are different ... you will tolerate fraud, I won't.
Your denying reality changes nothing.
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#190. To: noone222 (#176)
[noone222 #176] Our culture, our families and our country are being destroyed by prima facie legal artifice accepted by the ignorant among us, whose numbers are dwindling as more people become aware of the fraud and corruption in D.C. that has escaped its chains and slithered beyond its 10 square mile jurisdiction. Congress shall have the power ... To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.... Also in Article 1, Section 8, the Constitution provides that, To establish ... uniform Laws on the subject of Bankruptcies throughout the United States ... To provide for the Punishment of counterfeiting the Securities and current Coin of the United States... Under Article 3, Section 2, Interestingly, if you examine the jurisdiction of the Federal Court, you will observe that it extends specifically to citizens and not merely to persons. For many years it did not extend to corporations. It would seem unlikely that any corporation was either born a U.S. citizen or became naturalized. And yet, corporations are now regularly seen going to court.
U.S. Const., Art. 1, Sec. 8:
Congress does not exercise exclusive jurisdiction except as specified in Article 1. This is not a limiting provision but provides exclusive jurisdiction over the District in addition to jurisdiction throughout the States which is shared with state governments. The Congress shall have Power To Regulate commerce ... among the several States ...
If the jurisdiction of the Federal Congress did not extend beyond the District of Columbia, how would it regulate commerce among the several states? How would it establish uniform laws on the subject of bankruptcies throughout the United States? How would it punish counterfeiting outside the District of Columbia? The judicial Power shall extend ... to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Obviously, Congress must be able to legislate regarding these various areas of jurisdiction.
#191. To: noone222 (#176)
Had a court ruled against the State and found that Bench Warrants were unconstitutional or unlawful, as a general proposition, it is unlikely that the California Penal Code would continue to provide for bench warrants as it certainly does. California Penal Code in re Bench Warrant California Codes * * * 1195. If the defendant has been released on bail, or has deposited If the defendant, who is on bail, does appear for judgment and 1196. (a) The clerk, or the judge or justice, if there is no clerk, (b) The clerk, or the judge or justice, shall require the 1197. The bench warrant must be substantially in the following County of ____ The people of the State of California to any peace officer in this Given under my hand with the seal of said court affixed, this ____ By order of said court. ____________________ (SEAL) 1198. The bench warrant may be served in any county in the same 1199. Whether the bench warrant is served in the county in which it was issued or in another county, the officer must arrest the defendant and bring him before the court, or deliver him to any peace officer of the county from which the warrant issued, who must bring him before said court according to the command thereof. [noone222 #176] The court ruled in favor of the defendant and against the State in the lower court, finding merit in the argument that Bench Warrants violate separation of powers.
http://caselaw.lp.findlaw.com/cacodes/pen/1191-1210.5.html
California Penal Code
PENAL CODE SECTION 1191-1210.5
money or property instead thereof, and does not appear for judgment
when his personal appearance is necessary, the court, in addition to
the forfeiture of the undertaking of bail, or of the money or
property deposited, must, on application of the prosecuting attorney,
direct the issuance of a bench warrant for the arrest of the
defendant.
judgment is pronounced upon him or probation is granted to him, then
the bail shall be exonerated or, if money or property has been
deposited instead of bail, it must be returned to the defendant or to
the person or persons found by the court to have deposited said
money or property on behalf of said defendant.
must at any time after the order issue a bench warrant into one or
more counties.
appropriate agency to enter each bench warrant issued on a private
surety-bonded felony case into the national warrant system (National
Crime Information Center (NCIC)).If the appropriate agency fails to
enter the bench warrant into the national warrant system (NCIC),
and the court finds that this failure prevented the surety or bond
agent from surrendering the fugitive into custody, prevented the
fugitive from being arrested or taken into custody, or resulted in
the fugitive's subsequent release from custody, the court having
jurisdiction over the bail shall, upon petition, set aside the
forfeiture of the bond and declare all liability on the bail bond to
be exonerated.
form:
State:______ (name of defendant) having been on the ____ day of
____, 19_, duly convicted in the ____ court of ____ (naming the
court) of the crime of ____ (designating it generally), you are
therefore commanded forthwith to arrest the above named defendant and
bring him before that court for judgment.
day of ____, 19_.
Clerk (or Judge, or Justice)
manner as a warrant of arrest.
#192. To: noone222 (#189)
Making believe reality does not exist changes nothing. Blathering about the income tax being unlawful does not make it so.
Our realities are different ... you will tolerate fraud, I won't.
#193. To: nolu_chan (#191)
The warrant was for contempt of court issued without executive branch requirements calling for a sworn affidavit. The judicial sophistry used in the appellate ruling was what was being illustrated ... ["we are unable to exalt dry formalism above an exhausted fisc"] Had a court ruled against the State and found that Bench Warrants were unconstitutional or unlawful, as a general proposition, it is unlikely that the California Penal Code would continue to provide for bench warrants as it certainly does. We can agree on this point ... and that's why the ruling was overturned. Expediency is the object of the courts, at the expense of justice.
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#194. To: noone222 (#193)
The Executive Branch neither issues bench warrants nor does it legislate requirements applicable to the Judicial Branch. The warrant could have been issued without an affidavit required, under some circumstances, by a judicial requirement imposed by the Legislative Branch. I do not see any "separation of powers" issue. The bench warrant is a form of arrest warrant issued by a judge. There is no apparent general requirement that a judge issue an affidavit to himself in order to issue a bench warrant. Tuesday, February 22, 2005 Warrants Explained Many of my clients want to know what a warrant is, and do not understand what is going in when a warrant is served on them. There essentially two types of warrants: (1) search warrants and (2) arrest warrants. Search Warrant A search warrant allows law enforcement to perform a physical search, usually of your home or car, and to "seize" evidence. A search warrant must be requested by law enforcement of a magistrate judge. Law enforcement must present a written affidavit specifying the basis for the search, and what and where will be searched. The affidavit must allege evidence that, on its face, establishes probable cause to believe evidence will be found. With some exceptions, search warrants must be executed by law enforcement during the day. If evidence is found during the search, an arrest may follow. There are numerous exceptions to the search warrant requirement, meaning, law enforcement can search persons, homes and automobiles without a warrant, if the conditions fit one of the exceptions. Arrest Warrant An arrest warrant is a document allowing law enforcement to "seize" or arrest a person. Arrest warrants are more varied in type. I have encounted the following types of arrest warrants: (1) warrants issued by magistrate judge, (2) warrants issued by the office of the District Attorney [DA Warrants], and (3) bench warrants issued by the superior court or federal district judge. Each of these types of warrants are based on a finding a probable cause to believe that a crime has been committed and a particular person committed it. In the case of warrants issued by a magistrate judge or a DA warrant, there is often a statement of probable cause given in an affidavit or police report. In the case of a bench warrant, the superior court judge issues an arrest warrant because the defendant failed to appear in court on time. The judge is making factual finding that a court order has been violated, and the defendant should be arrested and brought before the court to answer to contempt charges. posted by Attorney Paul Puri at 12:08 PM 3.3 Bench Warrant A. General 1. A bench warrant is initiated by the judge and is issued only for violation of an order or requirement of the Court. Criminal Form 9-212A (Bench Warrant). 2. At the time the bench warrant is issued, the judge indicates on the bench warrant the reason or reasons it is being issued. If the judge has personal knowledge of the failure, the judge makes a notation to that effect in the file and issues the bench warrant. If the judge does not have personal knowledge of the failure, the judge does not issue the bench warrant until the person with knowledge submits an affidavit for bench warrant. Criminal Form 9-211 (Affidavit for Bench Warrant). MAGISTRATE JUDGES - Judicial officers who assist U.S. district judges in getting cases ready for trial, who may decide some criminal and civil trials when both parties agree to have the case heard by a magistrate judge instead of a judge. Congress created the judicial office of federal magistrate in 1968. In 1990, the position title was changed to magistrate judge. The judges of each district appoint one or more magistrate judges, who discharge many of the ancillary duties of district judges so that the judges can handle more trials. There are both full-time and part-time magistrate judge positions, and these positions are assigned to the district courts according to caseload criteria (subject to funding by Congress). A full-time magistrate judge serves a term of eight years; a part-time magistrate judge's term of office is four years. Magistrate judges disposed of 500,897 matters in 1992. In 1994 there were 369 full-time and 110 part-time magistrate judges. [noone 222 #193] The warrant was for contempt of court issued without executive branch requirements calling for a sworn affidavit.
Your statement in #176 was generalized as, "The court ruled in favor of the defendant and against the State in the lower court, finding merit in the argument that Bench Warrants violate separation of powers." You did not say some required element of a specific bench warrant was held to be missing but that bench warrants, generally, were held to violate the separation of powers. http://www.paulpuri.com/2005/02/warrants-explained.html
Note that there may be an affidavit requirement when the warrant issues from a magistrate judge. http://jec.unm.edu/resources/benchbooks/magistrate/3-3.htm
The Magistrate Judge, formerly called a Federal Magistrate, is an assistant who is appointed by the District Judges. He or she is NOT an Article III Judge, has a limited term of office and can only decide some cases where both parties agree to have the case heard by a magistrate judge instead of a real district judge. One may be a magistrate judge with neither a college degree nor a law degree. "Merely calling a district magistrate judge a judge of the district court, without conferring general jurisdiction upon that subordinate class of judge, does not make the district magistrate judge a judge of the district court as contemplated by Article 3, § 7." Linkhttp://www.lectlaw.com/def2/m057.htm
#195. To: nolu_chan (#192)
(2). Blathering about the income tax being unlawful does not make it so. (1). Pretending that a system fraught with corruption, confusion and confiscation that has refused to address simple straight forward requests from those it intends to "tax", such as what makes one liable for or subject to the so-called income tax, a system that has veered drastically from its original intent and intended targets, has brought us to where we are today. A runaway federal bureaucracy, legislated by pious perverts and social deviants, supported by a criminal judiciary, all padding their own pockets and that of their associates at the expense of common decency but more pertinently to the destruction of common liberty, while demanding the debt not be questioned by those expected to finance it. This may satisfy your expectation of reality but leaves me wanting. (2). A tax on income (property) could be lawful if apportioned. [I know this debate rages relative to the 16th Amendment, but the 16th Amendment was ruled as not conferring any new power of taxation ... blah blah], or should the tax be imposed upon the event that produces the income (and we determine the specific definition of the word income without combining it with compound words such as net income, taxable income, or gross income, because we need to know first what income itself is defined as, not whether it was net, taxable or gross because all money that "comes in" isn't necessarily "income"), and if the tax is imposed upon an event we need to define what events are taxable, because every event is not taxable. Should an event (source) be taxable then the amount of revenue produced by that taxable event should be used to measure the amount of tax obligation due, and assess it "uniformly" throughout the system. The design of the tax system as originally constructed was ingenious because it left freemen free to "choose" whether they would be taxed either by choosing to partake in taxable events or purchase taxable items [and be taxed indirectly but uniformly] or pay a poll tax of some sort [that was direct but apportioned]. What you refer to as blathering I would call discussion. Like it or not we must endure it in the best interests of the people of this country, otherwise those you are supporting, those that are violating the public's trust, are going to completely bankrupt America. Our recent ancestors screwed the pooch through naivete and blind trust. We have awakened to find ourselves swamped in legalese that protects an unjust system that is counter productive to a free society. There are many factors that could be argued independently but the fundamental problem has its roots in the Central Banking authority held in private hands being abused horribly to the benefit of bankers and government. We know there exists a private side (non-taxable) and a public side (taxable) to our lives. We have a natural "right" to conduct private lives and private business without entering the public side. When we enter the public spectrum we are subject to public policy, but until then we are not. That's why the currency states on its face that it's legal tender (not money per se) for (substitute) all debt public and private. Maybe you're perfectly correct in your approach to realism as you see it. I grew up in a rough neighborhood full of bullies that would beat others up for their lunch money on a daily basis if not physically prevented from doing so. Our government and their agents have become the bully, only they're a little more sophisticated, and they use the lunch money they steal to hire goons, purchase guns, deal drugs, build weapons of mass homicide, start wars and kill people at will. [This is how I perceive reality, and I choose not to be robbed for the purposes aforementioned.] I guess you might call me a conscientious objector. My personal beliefs go beyond the simplicity of going along to get along, not making waves, or rocking the boat. However, these are personal beliefs and unnecessary to the conversation at hand. But in the end we only spend a short amount of time on this beautiful planet and I'm convinced we can improve our stewardship of it by regaining our moral compass, eliminating political rhetoric by reviving statesmanship that truly serves the betterment of our fellow man, and by dealing in honesty regarding all things. This may be unrealistic, but this is my life, the only one I get and I will be true to myself, otherwise life has very little meaning and all of the hocum about life, liberty and the pursuit of happiness (property) is pablum fed to infants purposed to brainwash rather than instill conviction of principles that appear unnecesary to your reality and have become a thing of the past. I'm not able to enjoy a reality free from principle and long held maxims that can be sacrificed for the sake of convenience or expediency simply because corruption seems to rule the day. "If I'm free just leave me alone, if I'm not free lock me up, either way quit lying to me"
(1). Making believe reality does not exist changes nothing.
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#196. To: nolu_chan (#190) (Edited)
The Congress shall have Power To Regulate commerce ... among the several States ... To establish ... uniform Laws on the subject of Bankruptcies throughout the United States ... To provide for the Punishment of counterfeiting the Securities and current Coin of the United States... Taxes ... specifically the one named "income taxes" were the subject of concern ... these other subjects named above are off point, D.C. laws are subject to the plenary authority of congress, others are not.
Also in Article 1, Section 8, the Constitution provides that,
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#197. To: noone222 (#195)
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 courts have both implicitly and explicitly recognized that the Sixteenth Amendment authorizes a non-apportioned direct income tax on United States citizens and that the federal tax laws as applied are valid. In United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990), cert. denied, 500 U.S. 920 (1991), the court cited Brushaber v. Union Pac. R.R., 240 U.S. 1, 12-19 (1916), and noted the United States Supreme Court has recognized that the "sixteenth amendment authorizes a direct nonapportioned tax upon United States citizens throughout the nation, not just in federal enclaves." In re Becraft, 885 F.2d 547 (9th Cir. 1989) - the court affirmed a failure to file conviction, rejecting the taxpayer’s frivolous position that the Sixteenth Amendment does not authorize a direct non-apportioned income tax. United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990) - the court found defendant’s argument that the Sixteenth Amendment does not authorize a direct, non-apportioned tax on United States citizens similarly to be “devoid of any arguable basis in law.” Lovell v. United States, 755 F.2d 517, 518 (7th Cir. 1984) - the court rejected the argument that the Constitution prohibits imposition of a direct tax without apportionment, and upheld the district court’s frivolous return penalty assessment and the award of attorneys’ fees to the government “because [the taxpayers’] legal position was patently frivolous.” The appeals court imposed additional sanctions for pursuing “frivolous arguments in bad faith.” Broughton v. United States, 632 F.2d 706 (8th Cir. 1980) - the court rejected a refund suit, stating that the Sixteenth Amendment authorizes imposition of an income tax without apportionment among the states. Stearman v. Commissioner, T.C. Memo. 2005-39, 89 T.C.M. (CCH) 823 (2005), aff’d, 436 F.3d 533 (5th Cir. 2006) - the court imposed sanctions totaling $25,000 against the taxpayer for advancing arguments characteristic of tax-protester rhetoric that has been universally rejected by the courts, including arguments regarding the Sixteenth Amendment. In affirming the Tax Court’s holding, the Fifth Circuit granted the government’s request for further sanctions of $6,000 against the taxpayer for maintaining frivolous arguments on appeal, and the Fifth Circuit imposed an additional $6,000 sanctions on its own, for total additional sanctions of $12,000. Prior to prohibition, the sale of booze was lawful. During prohibition it was unlawful. Now it is lawful again. Recognizing that neither supports prohibition nor the sale of booze. [noone222 #195] A tax on income (property) could be lawful if apportioned.
-- U.S. Const, Amd 16 [noone222 #195] I know this debate rages relative to the 16th Amendment, but the 16th Amendment was ruled as not conferring any new power of taxation ...
There is no raging debate about the sixteenth amendment. It is settled law. There was no new power of taxation conferred. The power to tax incomes was always there. The only argument left is how big the fine will be for advancing this patently frivolous argument in court. [noone222 #195] What you refer to as blathering I would call discussion. Like it or not we must endure it in the best interests of the people of this country, otherwise those you are supporting, those that are violating the public's trust, are going to completely bankrupt America.
I am not supporting anyone. Recognizing that something is lawful is not supporting it. [noone222 #195] I guess you might call me a conscientious objector.
I guess you might call me a retired veteran. USN (Ret).
#198. To: noone222 (#196)
The authority of Congress to lay taxes extends throughout the country. "Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States.... In United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990), cert. denied, 500 U.S. 920 (1991), the court cited Brushaber v. Union Pac. R.R., 240 U.S. 1, 12-19 (1916), and noted the United States Supreme Court has recognized that the "sixteenth amendment authorizes a direct nonapportioned tax upon United States citizens throughout the nation, not just in federal enclaves." In re Becraft, 885 F.2d 547, 549-50 (9th Cir. 1989) - the court, observing that Becraft's claim that federal laws apply only to United States territories and the District of Columbia "has no semblance of merit," and noting that this attorney had previously litigated cases in the federal appeals courts that had "no reasonable possibility of success," imposed monetary damages and expressed the hope "that this assessment will deter Becraft from asking this and other federal courts to expend more time and resources on patently frivolous legal positions."
[noone 222 #196] Taxes ... specifically the one named "income taxes" were the subject of concern ... these other subjects named above are off point, D.C. laws are subject to the plenary authority of congress, others are not.
noone #176 referred to "D.C. that has escaped its chains and slithered beyond its 10 square mile jurisdiction."
Congress did not escape any chains to impose an income tax beyond a 10 square mile jurisdiction. The jurisdiction of Congress is not limited to any 10 square mile area.
#199. To: nolu_chan (#197)
[noone222 #195] I guess you might call me a conscientious objector. I guess you might call me a retired veteran. USN (Ret). Odd isn't it, that the 21st Amendment "repeals" the 18th ... and no such language is used in the 16th as it would affect the 1st at section 8 clause 1 or section 9 clause 4. Recognizing that neither supports prohibition nor the sale of booze. I don't understand what you're trying to say here, the 21st did prohibit the sale of alcohol. However it didn't outlaw the manufacture for private use of alcohol, because that is beyond the purview of the CON-gress. I did my time, 4 years as a matter of fact, one of those being a year in Vietnam. [Headline: Young, impressionable kids join military to serve what they thought was their country, but they were terribly mistaken.] I have absolutely no ties to the U.S. Govt., "none" ! After WW II a show trial was held at Nuremburg. A number of Nazis were hung for following "the law" and orders directed to them according tolaw. This was a show trial, and a few putz's were hung and a number of them went to prison for their deeds, but declassified documents and a number of books demonstrate that most of the nazi scum were placed in the U.S. and Britain, given new identities and used in any number of government projects. Many of those imprisoned at Nuremburg had their sentences commuted by J.J. McCloy, (an American Nazi like the Bush family) who was the European Commissioner over the Nuremburg trial. J.J. McCloy also met at Clint Murchison's house the night before the nazis killed Kennedy here in America, and later sat on the Warren Commission that swept the assassination under the rug. I loathe the U.S. Govt., and everything it stands for, I am shamed by the greed and lust for power that drives the scumbags, murders and deviants controlling the country, and I am embarrased at the American people's ignorance that allows these miscreants to remain in authority because I don't think they would continue to prop up a fascistic executive dictatorship if they were cognizant of it. It seems to me that it's usually someone receiving a government check that maintains blind and unyielding support for the bullies in D.C. (District of Child molesters). And I know that many of them are unaware of the massive fraud, murder, genocide and general mayhem operated by what they perceive as a good government ... but those days are coming to an end. People are waking up thanks to 9-11, an inside government op perpetrated by the nazi deviants currently in power to instill fear and pass draconian legislation that strikes at the heart of the very liberty many of us ignorantly thought we defended. I am very hopeful that the cabal of criminal collusion in D.C. [District of Cock-Roaches] will be brought up on charges, convicted and publicly hung for their subversion against the people of America. In closing, I have not taken a light hearted approach to my position. I have spent thousands of hours researching the law, history, and the Scriptures. Unlike many of my fellow men/women I am unable to turn my head and ignore my conscience, wave a plastic flag and praise the satanist bastard you call your President. There is a semi-silent spiritual war in progress that has been on going for thousands of years. We all have the opportunity to determine our own fate, and enlist in the service of the Almighty Creator of the Universe or the legion of satan. The Creator makes no bones about the fact that there may be some persecution attached to service in his outfit, while satan offers some temporary conveniences that seemingly persuades otherwise good people to support his agenda. It's hard to blame Americans personally for their allegiance since it's drilled into their head from birth, and would appear to be a most natural condition if the government were benevolent and hadn't become vile. I can't see inside your mind, nor do I understand your life experiences to determine why you take the position you have chosen, all I can know is what's inside of my mind and the path I've chosen.
Prior to prohibition, the sale of booze was lawful. During prohibition it was unlawful. Now it is lawful again. Recognizing that neither supports prohibition nor the sale of booze.
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
#200. To: nolu_chan (#198)
Rather than offer my personal determinations that obviate the aforementioned claim ... I find it sufficient to note that the infallible Supreme Court gods have lost my confidence for a myriad of causes, some that might even be actionable. I have determined that the services rendered by the U.S. Govt. Inc., at the point of a gun, violate my conscience and my liberty of choice so I have discontinued them, refused them, repudiated them, terminated them, canceled them, rescinded them and somewhat regretfully fled the plantation. I have pledged my allegiance to the King of the Universe, who doesn't permit dual loyalties or dual citizenship. Gal 5:1 ¶ Stand fast therefore in the liberty wherewith Christ hath made us free, and be not entangled again with the yoke of bondage. My Scriptures instruct me not to be unequally yoked with evil ... the U.S. Govt. is evil to its rotten core.
the United States Supreme Court has recognized that the "sixteenth amendment authorizes a direct nonapportioned tax upon United States citizens throughout the nation, not just in federal enclaves."
"They say Justice is blind and I agree ... so much so that she hasn't found her way into a courtroom since 1938"
noone222 12-17-06
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