User:Famspear

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I am an American in Texas. I have worked in the following areas: practice of law; practice as a certified public accountant (including but not limited to bank auditing); broadcast news reporter; talk show host; a gardener; a stock boy in a warehouse; and a clerk in a convenience store (among other things, and not necessarily in that order). My public performance exploits have included playing basketball against these guys, comic relief in a rodeo, and interviewing this gentleman. I was fortunate enough to be in the audience at the Great American Music Hall in San Francisco on Friday, June 18, 1976, to see this guy during the live recording of some of this album. I've attended performances by these guys (August 1970), these guys (September 1970), these guys (November 1972), these guys (early 1970s), this guy (early 1970s) and this guy (again, early 1970s) and these guys (1984). According to unverified family tree records, this lady might be my tenth cousin. According to the family records, this guy may be my great-great-great-great-great-great-great-great-great-great-great-great-great-great-grandfather. Also according to my family records, this guy apparently was my "half-fifth-great-grand-uncle."

In the real world, among other things, I currently represent taxpayers in their dealings with the Internal Revenue Service.

Contents

Cool things I have seen[edit]

Some of the most impressive things I have ever seen include: the birth of my son, the Musée d'Orsay, the Musée du Louvre, L'Arc de Triomphe, la Tour Eiffel and la Gare Montparnasse in Paris, the Palace of Versailles near Paris, the London Underground, St. Paul's Cathedral, Westminster Abbey, Liverpool Street Station, Paddington Station, and Abbey Road Studios (just the outside of the building) in London, the Art Institute of Chicago and the Field Museum of Natural History in Chicago, the United States Capitol, the White House, the court house of the Supreme Court of the United States, Arlington National Cemetery, the National Air and Space Museum in Washington, DC, the Monterey Bay Aquarium, the Golden Gate Bridge, breathtaking sunrise through the fog in the Atchafalaya swamp, Mount St. Helens, the cockpit of a Grumman F-14 Tomcat fighter plane, the Bavarian Alps, Yosemite National Park in California, and Willie Mays hitting a home run at the Astrodome in Houston when I was a boy.

Barnstars[edit]

Original Barnstar.png The Original Barnstar
I Morphh award Famspear this Barnstar for the large efforts and contributions to income taxation articles. Many Thanks!

Danke schön! Yours, Famspear 20:12, 15 August 2006 (UTC)

Barnstar of Diligence.png The Barnstar of Diligence
This is for all of the hard work, effort, and research you have put into Ed and Elaine Brown article. Sidatio 22:05, 19 July 2007 (UTC)

Cluestick for Famspear![edit]

As a show of WikiLove for all the times you had to deal with outrageously stupid and uncivil tax protesters and their frivolous arguments, I, Eastlaw, award you the Cluestick.

You, my friend, are an inspriation to law students and aspiring attorneys such as myself, especially when I encounter so many similar arguments on Internet discussion boards. You rock. --Eastlaw 01:26, 28 October 2006 (UTC)

Additional note: Wikipedia had a server error and logged me out as I posted this, so if the edit history of your talk page looks weird, now you know why. :) --Eastlaw 01:30, 28 October 2006 (UTC)

Dear Eastlaw: Wow, seriously you made my day! Thanks! Yours, Famspear 02:05, 28 October 2006 (UTC)

Veteran Editor (or Tutnum)[edit]

This editor is a Veteran Editor, and is entitled to display this Iron Editor Star


{{subst:SA-veteran}}

This editor is a Tutnum, and is entitled to display this Book of Knowledge


{{subst:SA-tutnum}}

Ribbon equivalent

Tutnumribbon.jpg

Requirements:
  • 8,000 edits and
  • 2 years' service

Great work! Morphh (talk) 13:49, 11 May 2007 (UTC)

Wow, thanks! Famspear 14:11, 11 May 2007 (UTC)

Barnstar from Legis[edit]

Working Man's Barnstar.png The Working Man's Barnstar
I seem to constantly come across your hard work and diligence in editing articles; I wish we had many more professional editors like you keeping the less glamorous articles accurate and tidy. --Legis (talk - contribs) 00:29, 20 September 2007 (UTC)

Thanks! Wait a minute, I edit primarily in legal articles, especially tax law articles. Isn't tax law the most glamorous topic in all of Wikipedia?

Oh, wait. Maybe I need to get out more! Yours, Famspear 00:53, 20 September 2007 (UTC)

Wikipedia official policies, guidelines, etc.[edit]

WP:Five pillars

WP:POL (official policy)

http://en.wikipedia.org/wiki/Wikipedia:List_of_policies (list of policies)

NPOV[edit]

"Neutral Point of View": WP:Neutral point of view (official policy)

WP:Neutral_point of view/FAQ (official policy)

WP:NPOV dispute (maintenance process, including the rule prohibiting drive-by tagging)

Verifiability[edit]

"Verifiability": WP:Verifiability (official policy)

No Original Research[edit]

"No Original Research": WP:No original research (official policy)

WP:No original research#Primary.2C secondary.2C and tertiary sources (primary, secondary and tertiary sources)

WP:Attribution (summary of Verifiability and No Original Research)

Vandalism[edit]

WP:VANDAL

Behavior[edit]

WP:Consensus (official policy)

WP:ATT/FAQ (proposed policy, guideline or process)

WP:Civility (official policy)

WP:Assume good faith (official policy)

WP:No Personal Attacks (official policy)

WP:OWN Ownership of articles

WP:NLT (no legal threats)

http://en.wikipedia.org/wiki/Wikipedia:Don%27t_overlook_legal_threats (essay)

WP:Dispute resolution (official policy)

WP:Etiquette (behavioral guideline)

WP:What Wikipedia is not (official policy)

WP:Spam (guideline)

WP:Fringe theories (content guideline)

WP:Talk page guidelines (guideline)

WP:Reverting (help page)

WP:Three-revert rule (official policy)

WP:Edit war (editing guideline)

http://en.wikipedia.org/wiki/Template:Uw-3rr (warning template)

{{subst:uw-3rr|Article}} (warning template)

WP:Administrators' noticeboard/3RR (to report edit war)

WP:Vandalism (official policy)

WP:Disruptive editing (behavioral guideline)

http://en.wikipedia.org/wiki/Wikipedia:SPA

WP:Sock

WP:TE (essay on tendentious editing)

WP:Conflict_of_interest (behavioral guideline)

WP:External links (guideline)

http://en.wikipedia.org/wiki/Wikipedia:Requests_for_comment/User_conduct

More on Verifiability[edit]

WP:Reliable sources (guideline)

WP:Reliable sources#Using online and self-published sources (guideline)

WP:Citing sources (style guide)

WP:Citing sources/example style (example)

http://en.wikipedia.org/wiki/Bluebook (Harvard Bluebook: A Uniform System of Citation)

http://en.wikipedia.org/wiki/ALWD_Citation_Manual (ALWD Citation Manual)

http://en.wikipedia.org/wiki/Case_citation (Case citation)

Manual of style[edit]

WP:MOS (guideline)

WP:MOSBIO (guideline)

Glossary[edit]

WP:Glossary

Notice boards[edit]

http://en.wikipedia.org/wiki/Wikipedia:Fringe_theories/Noticeboard

Wikipedia related concepts[edit]

Biographies of living persons[edit]

See WP:Biographies of living persons

Notability[edit]

http://en.wikipedia.org/wiki/Wikipedia:Notability

WP:Notability (people)

http://en.wikipedia.org/wiki/Wikipedia:Notability_%28academics%29

http://en.wikipedia.org/wiki/Wikipedia:Notability_%28books%29

Criteria for deletion of articles, etc.[edit]

http://en.wikipedia.org/wiki/Wikipedia:Deletion_policy (official policy)

http://en.wikipedia.org/wiki/Wikipedia:Articles_for_deletion (description of nominating process, etc.)

http://en.wikipedia.org/wiki/Wikipedia:Proposed_deletion (policy: uncontroversial deletions)

http://en.wikipedia.org/wiki/Wikipedia:CSD (policy: criteria for speedy deletion)

http://en.wikipedia.org/wiki/Category:AfD_debates (categories for AfD debates)

http://en.wikipedia.org/wiki/Wikipedia:Deletion_process (guideline: description of the actual deletion process)

http://en.wikipedia.org/wiki/Wikipedia:Introduction_to_deletion_process (essay)

Neutral point of view does not mean that the source cannot be biased[edit]

From the rule on Neutral Point of View:

As the name suggests, the neutral point of view is a point of view, not the absence or elimination of viewpoints. The neutral point of view policy is often misunderstood. The acronym NPOV does not mean "no points of view". The elimination of article content cannot be justified under this policy by simply labeling it "POV". The neutral point of view is a point of view that is neutral, that is neither sympathetic nor in opposition to its subject. Debates within topics are described, represented and characterized, but not engaged in. Background is provided on who believes what and why, and which view is more popular. Detailed articles might also contain the mutual evaluations of each viewpoint, but studiously refrain from asserting which is better. One can think of unbiased writing as the fair, analytical description of all relevant sides of a debate, including the mutual perspectives and the published evidence. When editorial bias toward one particular point of view can be detected, the article needs to be fixed.

See: [1] (copied on 4 January 2008; bolding added).

If, for example, a liberal think tank supports a particular position about whether the Alternative Minimum Tax is good or bad, it is OK to document that in Wikipedia with an adequate description that it is the liberal think tank that is taking that position. You cannot delete "points of view" in Wikipedia merely because they are liberal, conservative, leftist, rightist, etc. Neutral point of view does not mean the absence of bias in the SOURCE MATERIAL. In essence, it is OK for the source material to be biased, and it is OK for the source itself to be biased, as odd as that may sound. Neutral point of view means that Wikipedia itself does not take a position that this source's viewpoint is correct, or that some other source's viewpoint is incorrect.


Bias of a particular source compared to neutral point of view of the article[edit]

"Bias" generally does relate to the Wikipedia policy on Neutral Point of View [ . . . ]. Bias of a particular source is not the same as neutral point of view (or lack of same) of the article as a whole. Although it may seem odd to a newcomer at first, there is no "neutral point of view" requirement in Wikipedia that sources used in Wikipedia be unbiased. If you think about it after a while, you may realize why this is so.

Here is the rule:

As the name suggests, the neutral point of view is a point of view, not the absence or elimination of viewpoints. The neutral point of view policy is often misunderstood. The acronym NPOV does not mean "no points of view". The elimination of article content cannot be justified under this policy by simply labeling it "POV". The neutral point of view is neither sympathetic nor in opposition to its subject: it neither endorses nor discourages viewpoints. Debates within topics are clearly described, represented and characterized, but not engaged in. Background is provided on who believes what and why, and which view is more popular. Detailed articles might also contain the mutual evaluations of each viewpoint, but must studiously refrain from asserting which is better.

-- from WP:NPOV (bolding added).

You cannot present opposing viewpoints in an article without those viewpoints being biased. By definition, the viewpoints must be biased in order for those viewpoints to be opposed to each other. "Neutral point of view" means the neutrality of the article as a whole -- not the absence of points of view (biased or unbiased) within the article.

It is not Wikipedia itself that is saying the words in the quotation. It is the source that is making the statement. And it is OK to show that quotation (or an accurate paraphrase of that statement) in the Wikipedia article, even if the statement is biased and even if the source making that statement is biased.

What would be impermissible, however, would be for Wikipedia to then say "Oh, by the way, this source is correct" or "that source is wrong".

Neutral point of view is a complicated concept in Wikipedia, and we would agree that there are certainly some ways that an article might fail the NPOV standard, even without the article expressly saying "this source is right" or "that source is wrong." Deleting an accurate, in-context quotation from a reliable, previously published third party source merely because that quotation is biased, however, is generally not appropriate -- for the simple reason that the mere use of a "biased quotation" does not, in and of itself, violate the NPOV rule.

from:

http://en.wikipedia.org/wiki/Talk:Sovereign_Citizen_Movement

(by Famspear, on 18 April 2008).

Undue weight[edit]

Regarding undue weight:

NPOV says that the article should fairly represent all significant viewpoints that have been published by a verifiable source, and should do so in proportion to the prominence of each. Now an important qualification: Articles that compare views need not give minority views as much or as detailed a description as more popular views, and may not include tiny-minority views at all. For example, the article on the Earth only very briefly refers to the Flat Earth theory, a view of a distinct minority.
We should not attempt to represent a dispute as if a view held by a small minority deserved as much attention as a majority view, and views that are held by a tiny minority should not be represented except in articles devoted to those views. To give undue weight to a significant-minority view, or to include a tiny-minority view, might be misleading as to the shape of the dispute. Wikipedia aims to present competing views in proportion to their representation among experts on the subject, or among the concerned parties. This applies not only to article text, but to images, external links, categories, and all other material as well.
Undue weight applies to more than just viewpoints. Just as giving undue weight to a viewpoint is not neutral, so is giving undue weight to other verifiable and sourced statements. An article should not give undue weight to any aspects of the subject, but should strive to treat each aspect with a weight appropriate to its significance to the subject. Note that undue weight can be given in several ways, including, but not limited to, depth of detail, quantity of text, prominence of placement, and juxtaposition of statements.
Minority views can receive attention on pages specifically devoted to them — Wikipedia is not paper. But on such pages, though a view may be spelled out in great detail, it must make appropriate reference to the majority viewpoint, and must not reflect an attempt to rewrite majority-view content strictly from the perspective of the minority view.
From Jimbo Wales, paraphrased from this post from September 2003 on the mailing list:
  • If a viewpoint is in the majority, then it should be easy to substantiate it with reference to commonly accepted reference texts;
  • If a viewpoint is held by a significant minority, then it should be easy to name prominent adherents;
  • If a viewpoint is held by an extremely small (or vastly limited) minority, it does not belong in Wikipedia (except perhaps in some ancillary article) regardless of whether it is true or not; and regardless of whether you can prove it or not.
Views held only by a tiny minority of people should not be represented as significant minority views, and perhaps should not be represented at all.
If you are able to prove something that no one or few currently believe, Wikipedia is not the place to premiere such a proof. Once a proof has been presented and discussed elsewhere, however, it may be referenced.

Copied from [2] on 30 March 2007 (US central daylight time)


NPOV and notability[edit]

From the discussion of NPOV:

Notability is especially important because while NPOV encourages editors to add alternate and multiple points of view to an article, it does not claim that all views are equal. Although NPOV does not claim that some views are more truthful than others, it does acknowledge that some views are held by more people than others. Accurately representing a view therefore also means explaining who holds the view and whether it is a majority or minority view.
Soon it became evident that editors who rejected a majority view would often marshall sources to argue that a minority view was superior to a majority view - or would even add sources in order to promote the editor's own view. Therefore, the NOR policy was established in 2003 to address problematic uses of sources. The original motivation for NOR was to prevent editors from introducing fringe views in science, especially physics - or from excluding verifiable views that, in the judgement of editors, were wrong. [ . . ]

Minority views[edit]

" [ . . . ] the Wikipedia neutrality policy certainly does not state, or imply, that we must "give equal validity" to minority views. It does state that we must not take a stand on them as encyclopedia writers; but that does not stop us from describing the majority views as such; from fairly explaining the strong arguments against the pseudoscientific theory; from describing the strong moral repugnance that many people feel toward some morally repugnant views; and so forth." Copied from [3] on 30 March 2007 (US Central daylight time)

On "fairness of tone":

If we are going to characterize disputes neutrally, we should present competing views with a consistently fair and sensitive tone. Many articles end up as partisan commentary even while presenting both points of view. Even when a topic is presented in terms of facts rather than opinion, an article can still radiate an implied stance through either selection of which facts to present, or more subtly their organization.
We should write articles with the tone that all positions presented are at least worthy of unbiased representation, bearing in mind that views which are in the extreme minority do not belong in Wikipedia at all. We should present all significant, competing views impartially.

(bolding added). From [4], on 7 February 2008.

A bit about fringe theories[edit]

Articles which cover hypotheses in detail should document (with reliable sources) the current level of acceptance among the relevant academic community of the hypothesis. If proper attribution cannot be found among reliable sources of a hypothesis's standing, it should be assumed that the hypothesis has not received consideration or acceptance. However, a lack of consideration or acceptance does not necessarily imply rejection; hypotheses should not be portrayed as rejected [ . . . ] unless such claims can be documented in reliable sources.

Hypotheses which have been rejected, which are widely considered to be absurd [ . . . ] should be documented as such. Copied from [5] on 8 January 2007.

Reliability and self-published materials[edit]

“Anyone can create a website or pay to have a book published, and then claim to be an expert in a certain field. For that reason, self-published books, personal websites, and blogs are largely not acceptable as sources.

“Exceptions may be when a well-known, professional researcher in a relevant field, or a well-known professional journalist has produced self-published material. In some cases, these may be acceptable as sources, so long as their work has been previously published by reliable third-party publications. However, exercise caution: if the information in question is really worth reporting, someone else is likely to have done so.” Copied from [6] on 3 October 2006

"A self-published source is a published source that has not been subject to any form of independent fact-checking, or where no one stands between the writer and the act of publication. It includes personal websites, and books published by vanity presses. Anyone can create a website or pay to have a book published, and then claim to be an expert in a certain field. For that reason, self-published books, personal websites, and blogs are largely not acceptable as sources." Copied from [7] on 5 October 2006.

On false authority[edit]

“Look out for false claims of authority. Advanced degrees give authority in the topic of the degree. Web sites that have numerous footnotes may be entirely unreliable. The first question to ask yourself is, "What are the credentials and expertise of the people taking responsibility for a website?" Anyone can post anything on the web.

“Use sources who have postgraduate degrees or demonstrable published expertise in the field they are discussing. The more reputable ones are affiliated with academic institutions. The most reputable have written textbooks in their field: these authors can be expected to have a broad, authoritative grasp of their subject. In general, higher education textbooks are frequently revised and try to be authoritative. Textbooks aimed at secondary-school students, however, do not try to be authoritative and are subject to political approval.” Copied from [8] on 3 October 2006.

Exceptional claims require exceptional evidence[edit]

"Certain red flags should prompt editors to closely and skeptically examine the sources for a given claim. [ . . . . ] Claims not supported[,] or claims that are contradicted by the prevailing view in the relevant academic community. Be particularly careful when proponents say there is a conspiracy to silence them." Copied from [9] on 5 October 2006.

How to determine whether a view is established[edit]

The inclusion of a view that is held only by a tiny minority may constitute original research because there may be a lack of sufficiently credible, third-party, published sources to back it up.

From a mailing list post by Jimbo Wales, Wikipedia's founder:

  • If a viewpoint is in the majority, then it should be easy to substantiate it with reference to commonly accepted reference texts;
  • If a viewpoint is held by a significant minority, then it should be easy to name prominent adherents;
  • If a viewpoint is held by an extremely small (or vastly limited) minority, it doesn't belong in Wikipedia (except perhaps in some ancillary article) regardless of whether it's true or not; and regardless of whether you can prove it or not. Copied from [10] on 9 October 2006.

Wikipedia is not a publisher of original thought[edit]

Wikipedia is not a place to publish your own thoughts and analyses or to publish new information not heretofore published. Please do not use Wikipedia for [ . . . ]:

Personal essays or Blogs that state your particular opinions about a topic. Wikipedia is supposed to compile human knowledge. It is not a vehicle to make personal opinions become part of human knowledge. In the unusual situation where the opinions of a single individual are important enough to discuss, it is preferable to let other people write about them. Personal essays on topics relating to Wikipedia are welcome in your user namespace or on the Meta-wiki. There is a Wikipedia fork at Wikinfo that encourages personal opinions in articles.

Copied from [11] on 6 December 2006.

Kinds of sources[edit]

Although most articles should rely predominantly on secondary sources, there are rare occasions when they may rely entirely on primary sources (for example, current events or legal cases). An article or section of an article that relies on a primary source should (1) only make descriptive claims, the accuracy of which is easily verifiable by any reasonable, educated person without specialist knowledge, and (2) make no analytic, synthetic, interpretive, explanatory, or evaluative claims. Contributors drawing on entirely primary sources should be careful to comply with both conditions.

Copied from [12] on 22 March 2007.

Drive-by tagging[edit]

Drive-by tagging is not permitted. The editor who adds the tag must address the issues on the talk page, pointing to specific issues that are actionable within the content policies, namely Wikipedia:Neutral point of view, Wikipedia:Verifiability, Wikipedia:No original research and Wikipedia:Biographies of living persons. Simply being of the opinion that a page is not neutral is not sufficient to justify the addition of the tag. Tags should be added as a last resort. Copied from [13] on 15 August 2007.

For an example of drive-by tagging by an anonymous editor -- who, without actually making a substantive change in the applicable article and without discussing in the related talk page, inserted the hurried comment "don't have time to nitpick everything in the article, the general message is biased against the film, this needs to be neturalised [sic]" -- see [14]

Expertise[edit]

"Points of view held as having little credibility by experts, but with wide popular appeal (e.g.: the belief in astrology, considered as irrational and incorrect by the vast majority of scientists and astronomers), should be reported, but as such: that is, we should expose the point of view and its popular appeal, but also the opinion held by the vast majority of experts." Copied from [15] on 30 March 2007 (US central daylight time).

Vandalism: persistent insertions of non-neutral point of view material after having been warned[edit]

NPOV violations: The neutral point of view is a difficult policy for many of us to understand, and even Wikipedia veterans occasionally accidentally introduce material which is non-ideal from an NPOV perspective. Indeed, we are all affected by our beliefs to a greater or lesser extent. Though inappropriate, this is not vandalism in itself unless persisted in after being warned.

Copied from [16] on 15 February 2007 (bolding added).

Links normally to be avoided[edit]

"In addition to the restrictions on linking, and except for a link to a page that is the subject of the article or is an official page of the subject of the article, one should avoid:

[ . . . ]

  1. Any site that misleads the reader by use of factually inaccurate material or unverifiable research. See Reliable sources.
  2. Links mainly intended to promote a website.
  3. Links to sites that primarily exist to sell products or services. For example, instead of linking to a commercial bookstore site, use the "ISBN" linking format, giving readers an opportunity to search a wide variety of free and non-free book sources.

[ . . . ]

  1. Links to blogs and personal web pages, except those written by a recognized authority.

[ . . . ]"

Copied on 12 December 2006 from[17]

Deletion of one spam link is not an endorsement of those that remain[edit]

To quote from a guideline:

Inclusion of one spam link is not a reason to include another
Many times users can be confused by the removal of spam links because other links that could be construed as spam have been added to the article and not yet removed. The inclusion of a spam link should not be construed as an endorsement of the spam link, nor should it be taken as a reason or excuse to include another.

See [18] and [19]

Systemic bias[edit]

http://en.wikipedia.org/wiki/WP:BIAS (countering systemic bias)

Essay on bias and neutral POV, from an article talk page[edit]

A new user deleted a quotation from the Anti-Defamation League, objecting to the verbiage because the verbiage is biased. I reinstated the verbiage.

"Bias" generally does relate to the Wikipedia policy on Neutral Point of View -- but not in the way that the new user may have thought. Bias of a particular source is not the same as neutral point of view (or lack of same) of the article as a whole. Although it may seem odd to a newcomer at first, there is no "neutral point of view" requirement in Wikipedia that sources used in Wikipedia be unbiased. If you think about it after a while, you may realize why this is so.

Here is the rule:

As the name suggests, the neutral point of view is a point of view, not the absence or elimination of viewpoints. The neutral point of view policy is often misunderstood. The acronym NPOV does not mean "no points of view". The elimination of article content cannot be justified under this policy by simply labeling it "POV". The neutral point of view is neither sympathetic nor in opposition to its subject: it neither endorses nor discourages viewpoints. Debates within topics are clearly described, represented and characterized, but not engaged in. Background is provided on who believes what and why, and which view is more popular. Detailed articles might also contain the mutual evaluations of each viewpoint, but must studiously refrain from asserting which is better.

-- from WP:NPOV (bolding added).

You cannot present opposing viewpoints in an article without those viewpoints being biased. By definition, the viewpoints must be biased in order for those viewpoints to be opposed to each other. "Neutral point of view" means the neutrality of the article as a whole -- not the absence of points of view (biased or unbiased) within the article.

It is not Wikipedia itself that is saying the words in the quotation. It is the source that is making the statement. And it is OK to show that quotation (or an accurate paraphrase of that statement) in the Wikipedia article, even if the statement is biased and even if the source making that statement is biased.

What would be impermissible, however, would be for Wikipedia to then say "Oh, by the way, this source is correct" or "that source is wrong".

Neutral point of view is a complicated concept in Wikipedia, and we would agree that there are certainly some ways that an article might fail the NPOV standard, even without the article expressly saying "this source is right" or "that source is wrong." Deleting an accurate, in-context quotation from a reliable, previously published third party source merely because that quotation is biased, however, is generally not appropriate -- for the simple reason that the mere use of a "biased quotation" does not, in and of itself, violate the NPOV rule.

--by Famspear, from talk page for Sovereign Citizen Movement

Wikipedia instructions, user boxes, etc.[edit]

http://en.wikipedia.org/wiki/Wikipedia:How_to_archive_a_talk_page

http://en.wikipedia.org/wiki/Wikipedia:Single_purpose_account (essay)

A guideline:

"Wikipedia articles are supposed to represent all views (more at NPOV), instead of supporting one over another, even if you believe something strongly. The Talk ("discussion") pages are not a place to debate value judgments about which of those views are right or wrong or better. If you want to do that, there are venues such as Usenet, public weblogs and other wikis. Use the Talk pages to discuss the accuracy/inaccuracy, POV bias, or other problems in the article, not as a soapbox for advocacy." Copied from [20] on 20 October 2006.

http://en.wikipedia.org/wiki/Wikipedia:Requests_for_comment#Request_comment_on_users (information on requests for comments on users)

http://en.wikipedia.org/wiki/Category:Law_citation_templates

http://en.wikipedia.org/wiki/Template:TX_Govt_Code

http://en.wikipedia.org/wiki/Wikipedia:Requests_for_administrator_attention

http://en.wikipedia.org/wiki/Wikipedia:Requests_for_Adminship

http://en.wikipedia.org/wiki/Wikipedia:Administrators%27_reading_list

http://en.wikipedia.org/wiki/Wikipedia:Administrators%27_how-to_guide

http://en.wikipedia.org/wiki/Wikipedia:Guide_to_requests_for_adminship

http://en.wikipedia.org/wiki/WP:SOUP (essay)

http://en.wikipedia.org/wiki/WP:Userbox

http://en.wikipedia.org/wiki/Wikipedia:Userbox_Maker

http://en.wikipedia.org/wiki/Wikipedia:WikiProject_Userboxes

http://en.wikipedia.org/wiki/Category:AfD_debates

http://en.wikipedia.org/w/index.php?title=Special:ListUsers/sysop&limit=1500

http://en.wikipedia.org/wiki/Wikipedia:Rollback_feature

http://en.wikipedia.org/wiki/Wikipedia:Rollback_policy

http://en.wikipedia.org/wiki/Wikipedia:User_access_levels

Opportunity cost theory of value[edit]

The opportunity cost theory of value:

The cost of any action or forebearance is the value of the best alternative in the set of mutually exclusive alternatives applicable thereto.

Semantic silly stuff[edit]

From time to time I've heard people rant about the use of the word "raise" in connection with the bringing up of children. The story I hear is that we "rear" children but we "raise" corn, and that saying that we "raise" children is somehow incorrect.

Sorry, but that's wrong.

In terms of bringing up children, the terms "rear" and "raise" are properly interchangeable in American English:

raise [verb, transitive].... to bring up or rear (children).....

--from Webster's New World Dictionary of the American Language, p. 1174, World Publishing Co., Inc. (2nd Coll. Ed. 1978) (parenthetical in the original).

raise [verb, transitive].... to bring up (a child).....

--from Webster's New Collegiate Dictionary, p. 954, G. & C. Merriam Co. (8th ed. 1976) (parenthetical in the original).

Ideological purity in politics[edit]

"....the price of ideological purity is electoral irrelevance..."

--Timothy Stoltzfus Jost, Law Professor, Washington and Lee University (Nov. 8, 2012).

From the Bible[edit]

From Ecclesiastes:

Be not rash with your mouth, nor let your heart be hasty to utter a word before God, for God is in heaven, and you upon the earth; therefore let your words be few.

--Ecclesiastes 5:2 (Rev. Stand. Vers.) (5:1 in Hebrew)

From Proverbs:

It is the glory of God to conceal things, but the glory of kings is to search things out.

-- Proverbs 25:2 (Rev. Stand. Vers.)

From the Gospel of Matthew:

Beware of false prophets, who come to you in sheep's clothing but inwardly are ravenous wolves. You will know them by their fruits. Are grapes gathered from thorns, or figs from thistles? So every sound tree bears good fruit, but the bad tree bears evil fruit. [....] Not every one who says to me, 'Lord, Lord,' shall enter the kingdom of heaven, but he who does the will of my Father who is in heaven. On that day many will say to me, 'Lord, Lord, did we not prophesy in your name, and cast out demons in your name, and do many mighty works in your name?' And then I will declare to them, 'I never knew you; depart from me, you evildoers.' Every one then who hears these words of mine and does them will be like a wise man who built his house upon the rock; and the rain fell, and the floods came, and the winds blew and beat upon that house, but it did not fall, because it had been founded on the rock. And every one who hears these words of mine and does not do them will be like a foolish man who built his house upon the sand; and the rain fell, and the floods came, and the winds blew and beat against that house, and it fell; and great was the fall of it.

--Matthew 7:15-27 (Rev. Stand. Vers.)

More from the Gospel of Matthew:

And when he entered the temple, the chief priests and the elders of the people came up to him as he was teaching, and said, "By what authority are you doing these things, and who gave you this authority?" Jesus answered them, "I also will ask you a question; and if you tell me the answer, then I also will tell you by what authority I do these things. The baptism of John, whence was it? From heaven or from men?" And they argued with one another, "If we say, 'From heaven,' he will say to us, 'Why then did you not believe him?' But if we say, 'From men,' we are afraid of the multitude; for all hold that John was a prophet." So they answered Jesus, "We do not know." And he said to them, "Neither will I tell you by what authority I do these things."

--Matthew 21:23-27 (Rev. Stand. Vers.)

"There is a way which seems right to a man, but its end is the way to death." --Proverbs 16:25 (Rev. Stand. Vers.)

"Faithful are the wounds of a friend; profuse are the kisses of an enemy." --Proverbs 27:6 (Rev. Stand. Vers.)

On faith:

Now faith is the assurance of things hoped for, the conviction of things not seen. For by it the men of old received divine approval. By faith we understand that the world was created by the word of God, so that what is seen was made out of things which do not appear.

--Hebrews 11:1-3 (Rev. Stand. Vers.)

Tax and other law stuff too[edit]

Some key links[edit]

http://en.wikipedia.org/wiki/Wikipedia:WikiProject_Taxation

http://en.wikipedia.org/wiki/Category:United_States_government_navigational_boxes

http://en.wikipedia.org/wiki/Template:UStaxation

http://en.wikipedia.org/wiki/Template:US_tax_acts

http://en.wikipedia.org/wiki/Category:WikiProject_Taxation_articles

http://en.wikipedia.org/wiki/Category:United_States_federal_taxation_legislation

http://en.wikipedia.org/wiki/Wikipedia:Fringe_theories/Noticeboard/Archive_25 (includes a discussion about the Wikipedia tax protester articles)

http://en.wikipedia.org/wiki/Talk:Tax_protester/Archive_05

Talk:Income tax/Removed text (link to an old talk page on income tax)

Talk:Tax protester/Request for comment (23 January - 9 February 2008)

Talk:Tax protester/Request for comment - examples

User:BD2412/Tax protesters - the role of courts

http://en.wikipedia.org/wiki/Wikipedia:Version_1.0_Editorial_Team/Taxation_articles_by_quality_log

http://en.wikipedia.org/wiki/Wikipedia:Categories_for_discussion/Log/2008_December_10#Category:American_tax_evaders

What is law?[edit]

law (noun) -- "body of principles, standards and rules promulgated by government" - Black's Law Dictionary, p. 796 (5th ed. 1979).

Legal commentator Daniel B. Evans has stated:

I am often asked, “Why do you always assume that the courts are right and the tax protesters are wrong?” Or, “Couldn’t the courts be wrong about what the Constitution means?” Those questions demonstrate that the questioner doesn’t really understand what is meant by “law” or the “rule of law.”
Law is not some kind of abstraction that floats in the air, free from any connection to people or events. “The law” is what legislatures, courts, and governments do, and the real test of what the law “is” shows in how the law is applied in actual cases.
So when lawyers talk about what “the law” is, they are talking about how a judge will rule. Not how the judge should rule, or might rule, but will rule. As Justice Oliver Wendell Holmes once explained, “the only definition of law for a lawyer’s purposes is something which the Court will enforce.” Letter to Sir Frederick Pollock, 7/3/1874. Or, more famously: “The prophecies of what the courts will do in fact and nothing more pretentious are what I mean by the law.” The Paths of the Law (1897).
[ . . . ]when the courts, the legislatures, and the voters all agree on what the law is, then that is what the law is. The fact that some people believe that the law should be different that what courts have said it is doesn’t mean that the law is different from what the courts have said, but only that they should argue their positions within the political system and attempt to change the results.
In the case of the income tax, there is no conflict. The judicial, executive, and legislative branches of our government, and a majority of the voters, have all agreed for more than 90 years that (1) an income tax is constitutional, (2) it applies to wages, and (3) every citizen and resident of every state is required to file a tax return and pay the tax [ . . . ]

--Daniel B. Evans, The Tax Protester FAQ, retrieved on 5 Sept. 2007 from [21]

Daniel B. Evans has also stated:

Most tax protesters really don't understand what goes on in courts, or court opinions. They don't understand "due process" or "jurisdiction" or "burden of proof." To them, what goes on in court is just moving words around. It's incomprehensible and nonsensical to them, which makes it the same as magic.
Their response is to try to rearrange the words to find the right incantation, the right spell, to allow them to win. What they write is meaningless gibberish to us because what we write is meaningless gibberish to them. They respond in an imitative but nonsensical way because superficial manipulations of words is all that they can understand.
And when I say they can't understand, I'm not necessarily commenting on their intelligence, because it's really a combination of ignorance and emotional blockage. They don't really want to understand anything that means they're wrong, so they don't really try to understand.

Daniel B. Evans, June 19, 2009.

More from Daniel B. Evans:

"The reason that tax protesters write gibberish is that they don’t understand basic legal concepts like jurisdiction, due process, or common law, and frequently misapply the meanings of even ordinary words like “income” and “includes.” Combine that kind of ignorance with self-righteous anger towards the entire legal system and delusions of literacy, and the result is usually an indecipherable tapestry of legal jargon woven together into an unintelligible mess."

The terms "democracy" and "republic", etc.[edit]

democracy: "a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usu. involving periodically held free elections" --Webster's New Collegiate Dictionary, p. 302, G & C. Merriam Company (8th ed. 1976).

democracy: "That form of government in which the sovereign power resides in and is exercised by the whole body of free citizens directly or indirectly through a system of representation, as distinguished from a monarchy, aristocracy, or oligarchy." --Black's Law Dictionary, pp. 388-389 (5th ed. 1979).

republic: "a government having a chief of state who is not a monarch and who in modern times is usu. a president [ . . . ] a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law" --Webster's New Collegiate Dictionary, p. 983, G & C. Merriam Company (8th ed. 1976).

republic: "that form of government in which the administration of affairs is open to all the citizens." --Black's Law Dictionary, p. 1171 (5th ed. 1979).

republican government: "a government by representatives chosen by the people" --Black's Law Dictionary, p. 1171 (5th ed. 1979).

Tax provisions in the United States Constitution[edit]

Selected provisions of the United States Constitution:


The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.....

--from Article I, section 8, clause 1.


All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

--from Article I, section 7, clause 1.


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....

--from Article I, section 2, clause 3.


No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

--from Article I, section 9, clause 4.


No Tax or Duty shall be laid on Articles exported from any State.

--from Article I, section 9, clause 5.


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.


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.

--from Article I, section 9, clause 1.


Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed....

--From the Fourteenth Amendment, section 2.


The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

--From the Twenty-Fourth Amendment, section 1.

Tenth Amendment and federal taxes; regulatory effect of taxes[edit]

The Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

--Ratified Dec. 15, 1791.

From the U.S. Supreme Court (a federal estate tax case):

The Tenth Amendment does not operate as a limitation upon the powers, express or implied, delegated to the national government. United States v. Darby, 312 U.S. 100, 123-4. The amendment has clearly placed no restriction upon the power delegated to the national government to lay an excise tax qua tax. Undoubtedly every tax which lays its burden on some and not others may have an incidental regulatory effect. But since that is an inseparable concomitant of the power to tax, the incidental regulatory effect of the tax is embraced within the power to lay it. It has long been settled that an Act of Congress which on its face purports to be an exercise of the taxing power, is not any the less so because the tax is burdensome or tends to restrict or suppress the thing taxed. In such a case it is not within the province of courts to inquire into the unexpressed purposes or motives which may have moved Congress to exercise a power constitutionally conferred upon it[....]

---from Fernandez v. Wiener, 326 U.S. 340, 66 S. Ct. 178, 45-2 U.S. Tax Cas. (CCH) ¶10,239 (1945) (bolding added).

From the Darby case:

Our conclusion is unaffected by the Tenth Amendment which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

See United States v. Darby, 312 U.S. 100 (1941), at [22] (not a tax case).

According to the U.S. Court of Appeals for the Seventh Circuit, neither the Ninth Amendment nor the Tenth Amendment is "a source of any specific limitation on congressional power to tax and spend..." See Bartley v. United States, 123 F.3d 466 (7th Cir. 1997), at [23].

The Seventh Amendment[edit]

The Seventh Amendment to the U.S. Constitution:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

From the U.S. Supreme Court:

...We come now to inquire whether the Court of Claims erred in awarding judgment against the appellant for the amount paid to him out of the treasury of the United States upon the settlement of his accounts.
Upon this branch of the case counsel for the claimant contends that so much of the act of March 3, 1863, as invests the Court of Claims with power to render judgment in favor of the United States against a claimant, is in violation of the Seventh Amendment of the national Constitution, which provides that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.
That section, referring to the trial of causes in which the government may plead against the claimant any set-off, counter-claim, claim for damages, or other demand, provides that the court shall hear and determine such claim and demand both for and against the government and claimant; and if, upon the whole case, the court finds that the claimant is indebted to the government, it "shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law." There is nothing in these provisions which violates either the letter or spirit of the Seventh Amendment. Suits against the government in the Court of Claims, whether reference be had to the claimant's demand, or to the defence, or to any set-off, or counter-claim which the government may assert, are not controlled by the Seventh Amendment. They are not suits at common law within its true meaning. The government cannot be sued, except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States. Congress, by the act in question, informs the claimant that if he avails himself of the privilege of suing the government in the special court organized for that purpose, he may be met with a set-off, counter-claim, or other demand of the government, upon which judgment may go against him, without the intervention of a jury, if the court, upon the whole case, is of opinion that the government is entitled to such judgment. If the claimant avails himself of the privilege thus granted, he must do so subject to the conditions annexed by the government to the exercise of the privilege. Nothing more need be said on this subject.

---from McElrath v. United States, 102 U.S. 426 (1880) (bolding added), at [24].

From the U.S. Tax Court:

Petitioner has not been wrongfully denied a jury trial. "The Seventh Amendment does not apply to suits against the United States, because there was no common law action against the sovereign....

---from Abrams v. Commissioner, 82 T.C. 403 (1984), at [25]

From the Funk case:

Finally, Taxpayers' argument that they were entitled to a jury trial because of the seventh amendment is without merit. The seventh amendment preserves the right to a jury trial "in suits at common law." Because there was no right of action at common law against a sovereign, enforceable by jury trial or otherwise, there is no constitutional right to a jury trial in a suit against the United States. [ . . . ] On the contrary, there is a right to a jury trial in actions against the United States only if a statute so provides. [ . . . ] Congress has not provided for a jury trial where the taxpayer elects to contest a deficiency asserted by the Commissioner by petitioning the Tax Court.

--Funk v. Commissioner, 687 F.2d 264 (8th Cir. 1982) (per curiam), at [26].

Direct taxes, indirect taxes, and the Sixteenth Amendment[edit]

Text of 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.

--Ratified Feb. 3, 1913 (declared ratified Feb. 25, 1913).

Capitation tax. A poll tax (q.v.). Black's Law Dictionary, p. 191 (5th ed. 1979).

Poll-tax. A capitation tax; a tax of a specific sum levied upon each person within the jurisdiction of the taxing power and within a certain class (as, all males of a certain age, etc.) without reference to his property or lack of it. Black's Law Dictionary, p. 1043 (5th ed. 1979).

From Famspear:

1. The question of whether a particular income tax is direct or indirect is legally irrelevant to the question of whether the Congress has the power, under the U.S. Constitution as amended by the Sixteenth Amendment, to impose that tax. Congress has the power to impose any income tax, regardless of whether that tax is deemed direct or indirect.
2. The question of whether a particular income tax is direct or indirect is also legally irrelevant to the issue of whether that tax must be apportioned. After the Sixteenth Amendment, no income tax of any kind whatsoever, whether direct or indirect, is required to be apportioned.
3. Under the Constitution as amended, the only important legal relevancy to the question of whether a particular income tax is Constitutionally valid (aside from rules such as the one prohibiting taxes on exports, or rules that revenue measures must originate in the House, etc.) is probably whether that income tax is imposed with what the law refers to as geographical uniformity. That is, an income tax cannot be imposed on, say, just the incomes of people who happen to reside in New York and Montana.
--from a Famspear commentary at the talk page for the article on the Sixteenth Amendment (18 March 2007).

More from the United States Tax Court:

Thus, since the ratification of the Sixteenth Amendment it is immaterial, with respect to income taxes, whether the tax is a direct or an indirect tax.

---from Johnson v. Commissioner, 37 T.C.M. (CCH) 189, T.C. Memo 1978-32 (1978).

And, from the United States Tax Court in another case:

Thus, since the ratification of the Sixteenth Amendment it is immaterial, with respect to income taxes, whether the tax is a direct or an indirect tax.

---from Sortillon v. Commissioner, 38 T.C.M. (CCH) 1097, T.C. Memo 1979-281, CCH Dec. 36,194(M), Docket No. 2108-79 (July 26, 1979).

From the U.S. Court of Appeals for the Tenth Circuit:

Dickstein's argument that the sixteenth amendment does not authorize a direct, non-apportioned tax on United States citizens similarly is devoid of any arguable basis in law. Indeed, the Ninth Circuit recently noted "the patent absurdity and frivolity of such a proposition." In re Becraft, 885 F.2d 547, 548 (9th Cir.1989). For seventy-five years, the 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, see Brushaber v. Union Pac. R.R., 240 U.S. 1, 12-19, 36 S.Ct. 236, 239-42, 60 L.Ed. 493 (1916); efforts to argue otherwise have been sanctioned as frivolous, see, e.g., Becraft, 885 F.2d at 549 (Fed.R.App.P. 38 sanctions for raising frivolous sixteenth amendment argument in petition for rehearing); Lovell v. United States, 755 F.2d 517, 519-20 (7th Cir.1984) (Fed.R.App.P. 38 sanctions imposed on pro se litigants raising frivolous sixteenth amendment contentions).

--from United States v. Collins, 920 F.2d 619 (10th Cir. 1990) (bolding added).

And, from the decision in yet another case before the United States Tax Court:

Since the ratification of the Sixteenth Amendment, it is immaterial with respect to income taxes, whether the tax is a direct or indirect tax. The whole purpose of the Sixteenth Amendment was to relieve all income taxes when imposed from [the requirement of] apportionment and from [the requirement of] a consideration of the source whence the income was derived.

---from Abrams v. Commissioner, 82 T.C. 403, CCH Dec. 41,031 (1984).

From the U.S. Tax Court:

At the trial, Mr. Wikoff [the taxpayer] also raised the issue of the constitutionality of the Federal income tax. He argues that as a graduated direct tax on income, the Federal income tax statute was not within the intended scope of the 16th Amendment to the Constitution. According to him, the framers of the 16th Amendment envisioned an indirect excise tax on corporations, such as that contained in the Tariff Act of 1909. Since the petitioner is an "individual sovereign citizen" and the Federal income tax is a direct, progressive tax, he claims not to be subject to such tax.
It has long been settled that the Federal income tax is within the scope of the 16th Amendment and is constitutional. See, e.g., Brushaber v. Union Pac. R.R. Co. [1 USTC ¶ 4], 240 U.S. 1 (1916); Stanton v. Baltic Mining Co. [1 USTC ¶ 8], 240 U.S. 103 (1916); Cupp v. Commissioner [Dec. 33,459], 65 T.C. 68 (1975), affd. without published opinion 559 F. 2d 1207 (3d Cir. 1977). The "whole purpose" of the 16th Amendment, as stated by the Supreme Court in Brushaber v. Union Pac. R.R. Co., supra at 18, was "to relieve all income taxes when imposed from apportionment from a consideration of the source whence the income was derived." Thus, since the ratification of the 16th Amendment, it is immaterial, with respect to Federal income taxes, whether the tax is a direct or an indirect tax. Mr. Wikoff relied on the Supreme Court's decision in Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), but the effect of that decision has been nullified by the enactment of the 16th Amendment. Brushaber v. Union Pac. R.R. Co., supra.

--from Wikoff v. Commissioner, 37 T.C.M. (CCH) 1539, T.C. Memo. 1978-372 (1978) (bolding added) (footnote omitted).

Thus, the U.S. Tax Court has stated, in at least four different decisions (Johnson, Sortillon, Abrams, and Wikoff), that with respect to the Federal income tax, it does not matter whether the tax is deemed to be a direct tax or an indirect tax.

Tax lawyer Alan O. Dixler has written:

Each year some misguided souls refuse to pay their federal income tax liability on the theory that the 16th Amendment was never properly ratified, or on the theory that the 16th Amendment lacks an enabling clause. Not surprisingly, neither the IRS nor the courts have exhibited much patience for that sort of thing. If, strictly for the purposes of this discussion, the 16th Amendment could be disregarded, the taxpayers making those frivolous claims would still be subject to the income tax. In the first place, income from personal services is taxable without apportionment in the absence of the 16th Amendment. Pollock specifically endorsed Springer's holding that such income could be taxed without apportionment. The second Pollock decision invalidated the entire 1894 income tax act, including its tax on personal services income, due to inseverability; but, unlike the 1894 act, the current code contains a severability provision. Also, given the teaching of Graves [Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939)] -- that the theory that taxing income from a particular source is, in effect, taxing the source itself is untenable -- the holding in Pollock that taxing income from property is the same thing as taxing the property as such cannot be viewed as good law.

--Alan O. Dixler, "Direct Taxes Under the Constitution: A Review of the Precedents," Report to the Committee on Legal History of the Bar Association of the City of New York, Nov. 20, 2006, as republished in Tax History Project, Tax Analysts, Falls Church, Virginia (italics in original; footnotes omitted), at [27].

From the U.S. Supreme Court:

A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.

--from National Federation of Independent Business v. Sebelius, no. 11-393; no. 11-398; no. 11-400 (slip opinion, U.S. Supreme Court, June 28, 2012).

From Young v. United States:

A capitation is a direct tax based solely on one's status, and is most often epitomized by a poll tax. Considering the large number of cases which consider discrimination settlements "income" subject to taxation within the broad ambit of 26 U.S.C. §61(a), see, e.g., Commissioner of Internal Revenue v. Schleier, 515 U.S. 323, 115 S.Ct. 2159, 132 L.Ed.2d 294 (1995); United States v. Burke, 504 U.S. 229, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992), the Court finds that the tax withheld by the Internal Revenue Service in this case [i.e., the Federal income tax under the Internal Revenue Code of 1986] is not a "capitation".

---Young v. United States, 2001-2 U.S. Tax Cas. (CCH) ¶ 50,732, fn. 3 (W.D. Ky. 2001) (Federal income tax case).

The following is from a federal estate tax case, but the principle can be applied to the Federal income tax (and as a clarification of the meaning of the term "direct tax") as well. The United States Supreme Court stated:

Even without apportionment, Congress may tax "an excise upon a particular use or enjoyment of property or the shifting from one to another of any power or privilege incidental to the ownership or enjoyment of property. [ . . . . ] A tax imposed upon the exercise of some of the numerous rights of property is clearly distinguishable from a direct tax, which falls upon the owner merely because he is owner, regardless of his use or disposition of the property.

---Fernandez v. Wiener, 326 U.S. 340, 66 S. Ct. 178, 45-2 U.S. Tax Cas. (CCH) ¶10,239 (1945) (bolding added).

In Tilley v. United States, the taxpayer made the argument that the Federal income tax was "unconstitutional, since a tax measured by an individual's so-called income is in the nature of a capitation tax and can only be imposed by apportionment [ . . . . ]". That argument was ruled "frivolous" by the court. The court stated:

Several of the Tilleys' claims are frivolous and fail as a matter of law. In one claim, the Tilleys argue that "the taxes were unconstitutional, since a tax measured by an individual's so-called income is in the nature of a capitation tax and can only be imposed by apportionment." (Compl. ¶VI(d)(3)). The Sixteenth Amendment puts such an argument to rest, stating:
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 Tilley v. United States, 270 F. Supp. 2d 731, 2003-2 U.S. Tax Cas. (CCH) ¶50,594 (M.D.N.C. 2003).

In Pollock and other cases, the federal courts (including the Supreme Court) rejected the theories of political economists as providing any definition the nature of the terms "direct tax" and "excise tax." Instead, the nature of the tax is determined from the standpoint of the Constitution, not from the standpoint of Adam Smith or any other economist. As the United States Court of Appeals for the Second Circuit has stated:

There is not to be found in the cases, a clear definition of precisely what is meant by a direct tax or, indeed, an excise tax. It has become a rule of application to each particular tax. The nature of the tax is to be determined from the standpoint of the Constitution. It may not be answered by the theories of political economists. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429; Knowlton v. Moore, 178 U.S. 41.

---Anderson v. McNeir, 16 F.2d 970, 1927 CCH ¶7073 (2d Cir. 1927).

The United States Court of Appeals for the Fourth Circuit has indicated that after the ratification of the Sixteenth Amendment in 1913, whether an income tax is a "capitation or other direct tax" or not, the apportionment restriction (the rule that capitations or other direct taxes must be apportioned) simply does not apply if the tax in question is an income tax:

The power to tax is conferred on Congress by article I, section 8, clause 1 of the Constitution, but other sections of the Constitution impose certain restrictions upon the manner in which the taxing power of the Federal Government may be exercised. In addition to the general limitations placed upon that power by the due process clause of the Fifth Amendment, Congress is specifically prohibited from laying any tax on the export of goods; whatever indirect taxes it may enact shall be "uniform throughout the United States"' and it may impose a capitation or direct tax only if apportioned among the states according to population. This last restriction, the only one pertinent to the present case [the federal income tax under the Internal Revenue Code of 1954], has been limited in scope by the Sixteenth Amendment which permits taxes "on incomes, from whatever source derived" without regard to the apportionment requirement.

---Simmons v. United States, 308 F.2d 160, 165-66, 62-2 U.S. Tax Cas. (CCH) ¶9713 (4th Cir. 1962) (emphasis added), at [28].

The Sixteenth Amendment to the Constitution grants to Congress "the 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." [ . . . . . ] A direct tax is a capitation tax, a tax upon real estate and upon income derived from real estate and from personal property held for investment, and upon income of personal property. Pollock v. Farmers' Loan & Trust Company, 158 U. S. 601; 15 S. Ct. 912; 39 L. Ed. 1108. The tax created by the challenged Act [the federal income tax under section 501 of the Revenue Act of 1936] has none of the features of a direct tax, and if a tax, is an income tax, and is therefore, subject only to the rule of geographical uniformity which is synonymous with the expression "to operate generally throughout the United States. [ . . . . ] If [the tax is] an income tax, no apportionment is required as provided in Sections 2 and 9 of Article I of the Constitution.

---Kingan & Company, Inc. v. Smith, 17 F. Supp. 217, 36-2 U.S. Tax Cas. (CCH) ¶9551 (S.D. Ind. 1936) (emphasis added), at [29].

...the federal income tax is constitutional, wages are taxable income, and the Sixteenth Amendment removed the apportionment requirement for [income taxes to the extent, if any, such taxes are otherwise treated as] direct taxes.

---Zuckman v. Department of the Treasury, case no. 10-4717, U.S. Ct. App. for the Second Circuit, Jan. 18, 2012 (summary order).

Pollock overruled[edit]

Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, aff'd on reh'g, 158 U.S. 601 (1895), was overruled by the ratification of the Sixteenth Amendment in 1913, and by subsequent U.S. Supreme Court decisions including Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939) and South Carolina v. Baker, 485 U.S. 505 (1988). See also Wikoff v. Commissioner, 37 T.C.M. (CCH) 1539, T.C. Memo. 1978-372 (1978); Graf v. Commissioner, 44 T.C.M. (CCH) 66, TC Memo. 1982-317, CCH December 39,080(M) (1982); William D. Andrews, Basic Federal Income Taxation, p. 2, Little, Brown and Company (3d ed. 1985); Boris I. Bittker, "Constitutional Limits on the Taxing Power of the Federal Government", Tax Lawyer, Vol. 41, No. 1, p. 3, American Bar Ass'n (Fall 1987). See generally Brushaber v. Union Pac. R.R. Co., 240 U.S. 1 (1916). See also Sheldon D. Pollack, "Origins of the Modern Income Tax, 1894-1913," 66 Tax Lawyer 295, 323-324, Winter 2013 (Amer. Bar Ass'n).

Certain other cases involving U.S. Federal income tax[edit]

Under O’Malley v. Woodrough, 307 U.S. 277 (1939), a non-discriminatory tax laid generally on net income is not, when applied to the income of a federal judge, a diminution of the judge’s salary within the prohibition of Article III, section 1, of the U.S. Constitution -- overruling Evans v. Gore, 253 U.S. 245 (1920) and Miles v. Graham, 268 U.S. 501 (1925).

Murphy v. Internal Revenue Serv., 460 F.3d 79 (D.C. Cir. 2006) was vacated in Murphy v. Internal Revenue Serv., 493 F.3d 170 (D.C. Cir. 2007).

Certain cases involving U.S. federal taxes other than the income tax[edit]

The 0.125% harbor maintenance tax on the value of commercial cargo involved in a taxed port use under 26 U.S.C. § 4461 was unanimously ruled unconstitutional under Art. 1, sec. 9, cl. 5, in the case of United States v. United States Shoe Corp., 523 U.S. 360, 118 S. Ct. 1290, 98-1 U.S. Tax Cas. (CCH) paragr. 70,091 (1998). No tax protester arguments were raised in this case. The government had argued that the tax was only a "user fee." The Court ruled that it was an unconstitutional tax on exports. The harbor maintenance tax was not an income tax.

Similarly, the coal excise tax under 26 U.S.C. § 4221 was ruled to be an unconstitutional tax on exports by a federal district court in 1998 in the case of Ranger Fuel Corp. v. United States, 33 F. Supp. 2d 466, 99-1 U.S. Tax Cas. (CCH) paragr. 70,109 (E.D. Va. 1998).

In United States v. Hatter, 532 U.S. 557, 121 S. Ct. 1782 (2001), the Supreme Court held that because certain special retroactivity-related Social Security rules enacted in 1983 effectively singled out then-sitting federal judges for unfavorable treatment, the Compensation Clause of the Constitution (in Article III, section 1, relating to reduction of the compensation of federal judges) prohibited the application of the Social Security tax to those judges. The Social Security tax is not an income tax.

See also United States v. International Business Machines Corp., 517 U.S. 843, 116 S. Ct. 1793, 96-1 U.S. Tax Cas. (CCH) paragr. 70,059 (1996) (Supreme Court ruled that an excise tax on casualty insurance premiums paid to foreign insurers to cover shipments of goods violated prohibition on tax on exports).

From Miranda[edit]

"To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning

[---]that he has the right to remain silent,

[---]that anything he says can be used against him in a court of law,

[---]that he has the right to the presence of an attorney, and

[---]that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him."

---U.S. Supreme Court, Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (original text modified to add spacing for ease in reading).

Fifth Amendment, self-incrimination, the right to have legal counsel, and the role of the criminal defense lawyer[edit]

Of all the rights guaranteed under the U.S. Constitution, the right not to be compelled in a criminal case to be a witness against oneself is one of the most widely misunderstood. In part, this is because the concept of "self-incrimination" is one of the most widely misunderstood concepts. Many people do not even know the definition of a "self-incriminating statement." Many people mistakenly assume that a self-incriminating statement is limited only to a statement which provides evidence that the person making the statement is actually guilty of a crime.

What is self-incrimination? What is a self-incriminating statement?

An incriminating statement includes any statement that tends to increase the danger or likelihood that the person making the statement will be accused, charged or prosecuted – even if the statement is true, and even if that person is innocent of any crime.

From Black's Law Dictionary:

"[to] Incriminate ... to expose [oneself or another person] to an accusation or charge of crime; to involve oneself or another [person] in a criminal prosecution or the danger thereof." Black's Law Dictionary, p. 690 (5th ed. 1979) (bolding added).

The "danger" that is being described here is not limited to the danger of being convicted of a crime that the individual actually committed. The danger being described here is the danger of being accused or charged or prosecuted.

Is it possible for an innocent person to be falsely accused? To be falsely charged? To be falsely prosecuted? Of course.

From the U.S. Supreme Court:

The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patricia) Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223. But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 1917, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, and to require him to answer if 'it clearly appears to the court that he is mistaken.' Temple v. Commonwealth, 1880, 75 Va. 892, 899. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim 'must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.'

--from Hoffman v. United States, 341 U.S. 479 (1951) (bolding added).

The protection of the privilege against self incrimination extends only to witnesses who have “reasonable cause to apprehend danger from a direct answer.” The determination of whether there is a risk of incrimination is made by the court; the witness’ assertion does not by itself establish that there is a risk of incrimination. A danger of “imaginary and unsubstantial character” will not suffice. See generally Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam) at [30], citing Hoffman v. United States, 341 U. S. 479, 486 (1951) and Mason v. United States, 244 U.S. 362, 366 (1917).

An innocent person who makes true statements can incriminate himself or herself[edit]

Even a person who is innocent of any crime who testifies truthfully can be incriminated by that testimony. Truthful statements by a completely innocent person can and do increase the danger or likelihood that the person will be falsely accused, falsely charged, or falsely prosecuted. The United States Supreme Court has stated that the Fifth Amendment privilege against being compelled to be a witness against oneself:

protects the innocent as well as the guilty.... one of the Fifth Amendment’s basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances.

--from Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam) (bolding added; internal quotation marks omitted).

.... truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.

--also from Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam) (bolding added), citing another case.

"The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime."

--from Hoffman v. United States, 341 U.S. 479, 490 (1951), citing United States v. White, 322 U. S. 694, 698 (1944), at [31].

More from the U.S. Supreme Court:

Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. The Founders of the Nation were not naive or disregardful of the interests of justice.

--from Ullmann v. United States, 350 U.S. 422, 426 (1956) (footnote omitted), at [32].

From another Supreme Court decision:

Here the Board [the Board of Higher Education of New York City], in support of its position, contends that only two possible inferences flow from appellant's claim of self-incrimination: (1) that the answering of the question would tend to prove him guilty of a crime in some way connected with his official conduct; or (2) that in order to avoid answering the question he falsely invoked the privilege by stating that the answer would tend to incriminate him, and thus committed perjury.
[ . . . ]
At the outset we must condemn the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as "one of the most valuable prerogatives of the citizen." Brown v. Walker, 161 U. S. 591, 610. We have reaffirmed our faith in this principle recently in Quinn v. United States, 349 U. S. 155. In Ullmann v. United States, 350 U. S. 422, decided last month, we scored the assumption that those who claim this privilege are either criminals or perjurers. The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.

--from Slochower v. Board of Higher Education of New York City, 350 U.S. 551 (1956) (bolding added).

More from the U.S. Supreme Court, this from a case decided in 1908:

The exemption from testimonial compulsion, that is, from disclosure as a witness of evidence against oneself, forced by any form of legal process, is universal in American law, though there may be differences as to its exact scope and limits. At the time of the formation of the Union the principle that no person could be compelled to be a witness against himself had become embodied in the common law and distinguished it from all other systems of jurisprudence. It was generally regarded then, as now, as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded or tyrannical prosecutions.

--from Twining v. New Jersey, 211 U.S. 78 (1908) (bolding added), at [33].

Coercion, denying access to legal counsel during interrogation, and denying access to a hearing[edit]

From the U.S. Supreme Court's opinion in Watts v. Indiana:

Until his inculpatory statements were secured, the petitioner was a prisoner in the exclusive control of the prosecuting authorities. He was kept for the first two days in solitary confinement in a cell aptly enough called "the hole" in view of its physical conditions as described by the State's witnesses. Apart from the five night sessions, the police intermittently interrogated Watts [the defendant] during the day and on three days drove him around town, hours at a time, with a view to eliciting identifications and other disclosures. Although the law of Indiana required that petitioner be given a prompt preliminary hearing before a magistrate, with all the protection a hearing was intended to give him, the petitioner was not only given no hearing during the entire period of interrogation but was without friendly or professional aid and without advice as to his constitutional rights. Disregard of rudimentary needs of life—opportunities for sleep and a decent allowance of food—are also relevant, not as aggravating elements of petitioner's treatment, but as part of the total situation out of which his confessions came and which stamped their character.
A confession by which life becomes forfeit must be the expression of free choice. A statement to be voluntary of course need not be volunteered. But if it is the product of sustained pressure by the police it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation and therefore the reverse of voluntary. We would have to shut our minds to the plain significance of what here transpired to deny that this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation. The very relentlessness of such interrogation implies that it is better for the prisoner to answer than to persist in the refusal of disclosure which is his constitutional right. To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process.

--Watts v. Indiana, 338 U.S. 49 (1949) (bolding added), at [34].

From Justice Jackson in the same case:

Amid much that is irrelevant or trivial, one serious situation seems to me to stand out in these cases. The suspect neither had nor was advised of his right to get counsel. This presents a real dilemma in a free society. To subject one without counsel to questioning which may and is intended to convict him, is a real peril to individual freedom. To bring in a lawyer means a real peril to solution of the crime, because, under our adversary system, he deems that his sole duty is to protect his client — guilty or innocent — and that in such a capacity he owes no duty whatever to help society solve its crime problem. Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.

--Justice Robert H. Jackson, concurring and dissenting, in Watts v. Indiana, 338 U.S. 49 (1949) (bolding added), at [35].

Freedom of speech[edit]

On freedom of speech:

[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas...

--from FCC v. Pacifica Foundation, 438 U.S. 726 (1978), as quoted in Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

Origination Clause[edit]

From the U.S. Constitution:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

--U.S. Constit., art. I, sec. 7, clause 1.

From the U.S. Supreme Court:

Without intimating that there is judicial power after an act of Congress has been duly promulgated to inquire in which House it originated for the purpose of determining its validity, and upon the assumption for the sake of the argument that such power may be invoked, again we think the court below disposed of the contention upon a ground entirely satisfactory which we adopt and approve, the court saying:
"I am also satisfied that the section in question is not void as a bill for raising revenue originating in the Senate and not in the House of Representatives. It appears that the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient. Having become an enrolled and duly authenticated Act of Congress, it is not for this Court to determine whether the amendment was or was not outside the purposes of the original bill."

--from the United States Supreme Court opinion in Rainey v. United States, 232 U.S. 310 (1914) (bolding added), at [36].

A challenge to the Patient Protection and Affordable Care Act -- on the ground that its enactment violated the Origination Clause -- was rejected in Sissel v. U.S. Dep't of Health and Human Services, no. 1:10-cv-01263-BAH, docket entry 51, U.S. District Court for the District of Columbia (June 28, 2013). As of early October 2013, that decision is being appealed by the plaintiff (Matthew Sissel) to the United States Court of Appeals for the District of Columbia Circuit (no. 13-5202). The District Court noted that the general power to amend legislation falls under article I, section 5, clause 2 in connection with the exclusive power of Congress to "determine the Rules of its Proceedings." The District Court indicated that the questioning of this power by a court of law would involve a "non-justiciable political question." The District Court stated that article I, section 5, clause 2 is a "textually demonstrable constitutional commitment of [an] issue to a coordinate political department" (citing Baker v. Carr, 369 U.S. 186 (1962)). In Sissel, the District Court held (1) that the Commerce Clause challenge to the ACA was foreclosed by the Supreme Court decision in NFIB v. Sebelius, (2) that the Origination Clause challenge failed, as the bill enacting the individual mandate was not a bill for raising revenue, and (3) that even if the bill enacting the individual mandate were a bill for raising revenue, the Origination Clause challenge failed because the bill was an amendment to a bill that had originated in the House of Representatives. On appeal, the U.S. Court of Appeals for the District of Columbia Circuit upheld the District Court's judgment, but stated that the Court of Appeals would not decide whether the statute originated in the House of Representatives, as section 5000A of the Internal Revenue Code (the relevant provision of the statute) was not a bill for "raising Revenue" anyway. See Sissel v. U.S. Dep't of Health and Human Services, case no. 13-5202, slip op., July 29, 2014, U.S. Court of Appeals for the District of Columbia Circuit.

Key points in U.S. Supreme Court decision in National Federation of Independent Business v. Sebelius[edit]

Summary of National Federation of Independent Business v. Sebelius, no. 11-393; no. 11-398; no. 11-400 (slip opinion, U.S. Supreme Court, June 28, 2012), interpreting Internal Revenue Code section 5000A as enacted by the Patient Protection and Affordable Care Act, Public Law No. 111-148, 124 Stat. 119, 244 (March 23, 2010), as amended by the Health Care and Education Reconciliation Act of 2010, Public Law No. 111-152, 124 Stat. 1029 (March 30, 2010) (with paraphrases and quotes shown below):

1. The Affordable Care Act does not require that the penalty under Internal Revenue Code section 5000A be treated as a tax for purposes of the Anti-Injunction Act, and the Anti-Injunction Act does not prohibit this lawsuit by the National Federation of Independent Business et al. (page 15 of the slip opinion)

2. Although the statute uses the term “penalty” to describe the imposition under section 5000A, the “penalty” label does not determine whether the payment may be viewed as a constitutional exercise of the Congressional taxing power. (page 33)

3. The decision of Congress that the Anti-Injunction Act shall not apply to the section 5000A penalty does not determine whether the section 5000A penalty is within the constitutional power of Congress to impose a “tax.” (page 33)

4. Certain exactions that are not labeled as “taxes” nonetheless have been authorized under the power of Congress to “tax.” (page 34)

5. The section 5000A penalty or “shared responsibility payment” may, for constitutional purposes, be considered a tax, not a penalty. (page 35)

6. The section 5000A penalty or “shared responsibility payment” is merely the imposition of a tax that citizens may lawfully choose to pay in lieu of buying health insurance. (page 38)

7. Congress had the power to impose the section 5000A exaction under its taxing power, and section 5000A does not need to be read to do more than imposing a tax. (page 39)

8. Under the Constitution, the 5000A exaction is not a direct tax that must be apportioned among the several States. (page 41)

9. The Constitution does not guarantee that individuals may avoid taxation through inactivity. (page 41)

10. The Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. (pages 41-42) The Constitution makes no such promise with respect to taxes. (page 42)

11. Upholding the section 5000A individual mandate under the Taxing Clause does not recognize any new federal power; upholding the mandate determines that Congress has used an existing federal power. (page 42)

12. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty [under section 5000A of the Internal Revenue Code] for not obtaining health insurance may reasonably be characterized [for purposes of determining the requirement’s constitutionality] as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” (page 44)

Note: The term "individual mandate" that is often used is not actually found in section 5000A. The terms found in section 5000A are "penalty" and "shared responsibility payment."

Examples of rights and privileges of national citizenship in the United States[edit]

From the U.S. Supreme Court:

Thus among the rights and privileges of National citizenship recognized by this court are the right to pass freely from State to State, Crandall v. Nevada, 6 Wall. 35; the right to petition Congress for a redress of grievances, United States v. Cruikshank, supra; the right to vote for National officers, Ex parte Yarbrough, 110 U.S. 651; Wiley v. Sinkler, 179 U.S. 58; the right to enter the public lands, United States v. Waddell, 112 U.S. 76; the right to be protected against violence while in the lawful custody of a United States marshal, Logan v. United States, 144 U.S. 263; and the right to inform the United States authorities of violation of its laws, In re Quarles, 158 U.S. 532.

--from Twining v. New Jersey, 211 U.S. 78 (1908).

Definitions[edit]

law (noun) -- "body of principles, standards and rules promulgated by government" - Black's Law Dictionary, p. 796 (5th ed. 1979).

Jurisprudence. "The philosophy of law...." Black's Law Dictionary, p. 767 (5th ed. 1979); "the science or philosophy of law..." Webster's New Collegiate Dictionary, p. 628, G&C Merriam Co. (8th ed. 1976); "The philosophy or the formal science of law." American Heritage Dictionary, p. 694 (2d Coll. Ed. 1985).

Natural rights. "Those [rights] which grow out of [the] nature of man and depend upon his personality and are distinguished from those [rights] which are created by positive laws enacted by a duly constituted government to create an orderly civilized society." Black's Law Dictionary, p. 925 (5th ed. 1979).

Case law. "The aggregate of reported cases as forming a body of jurisprudence, or the law of a particular subject as evidenced or formed by the adjudged cases, in distinction to statutes and other sources of law. See Common law." Black's Law Dictionary, p. 196 (5th ed. 1979).

Common law. "[ . . . ] the common law comprises the body of those principles and rules of action [ . . . ] which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts [ . . . ] and, in this sense, particularly the ancient unwritten law of England." Black's Law Dictionary, p. 250-251 (5th ed. 1979).

"'Common law' consists of those principles [ . . . ] which do not rest for their authority upon any express and positive declaration of the will of the legislature." Black's Law Dictionary, p. 251 (5th ed. 1979).

subjective (adj) "peculiar to a particular individual" --Webster's New Collegiate Dictionary, p. 1159, G. & C. Merriam Co. (8th ed. 1976).

objective (adj.): "relating to or being methods that eliminate the subjective by limiting choices to fixed alternatives requiring a minimum of creative interpretation" --Webster's New Collegiate Dictionary, p. 791, G. & C. Merriam Co. (8th ed. 1976).

tax (noun) -- “A compulsory payment, usually a percentage, levied on income, property value, sales price, etc., for the support of a government” -- Webster’s New World Dictionary of the American Language, p. 1458, World Publishing Co., Inc. (2nd Coll. Ed. 1978); “a rate or sum of money assessed on a person or property for the support of the government …” – Barron’s Law Dictionary, p. 470 (2nd Ed. 1984).

compulsory (adjective) -- “obligatory; required [ . . . .] coercive” -- Webster’s New World Dictionary of the American Language, p. 292, World Publishing Co., Inc. (2nd Coll. Ed. 1978).

to tax (verb) -- “to require to pay a percentage of income, property value, etc., for the support of a government” -- Webster’s New World Dictionary of the American Language, p. 1458, World Publishing Co., Inc. (2nd Coll. Ed. 1978).

slavery (noun) -- “the owning or keeping of slaves as a practice or institution […..] a condition of submission to or domination by some influence, habit, etc.” -- Webster’s New World Dictionary of the American Language, p. 1338, World Publishing Co., Inc. (2nd Coll. Ed. 1978).

slave (noun) -- “a human being who is owned as property by another and is absolutely subject to his will” -- Webster’s New World Dictionary of the American Language, p. 1338, World Publishing Co., Inc. (2nd Coll. Ed. 1978).

forensic (adjective) -- "of, characteristic of, or suitable for a law court, public debate, or formal argumentation"; (noun) -- "debate or formal argumentation" -- Webster’s New World Dictionary of the American Language, p. 546, World Publishing Co., Inc. (2nd Coll. Ed. 1978).

money (noun) -- "something generally accepted as a medium of exchange, a measure of value, or a means of payment". Webster's New Collegiate Dictionary, p. 742, G. & C. Merriam Co. (8th ed. 1976).

inflation: "an increase in the volume of money and credit relative to available goods resulting in a substantial and continuing rise in the general price level". ---Webster's New Collegiate Dictionary, p. 591, G&C Merriam Co. (8th ed. 1976); "An abnormal increase in available currency and credit beyond the proportion of available goods, resulting in a sharp and continuing rise in price levels". ---The American Heritage Dictionary, p. 660, Houghton Mifflin Company (2d Coll. Ed. 1985); "a decline in the value of money relative to all other goods or, in more familiar terms, a rise in the money price of goods generally". ---Paul Heyne & Thomas Johnson, Toward Economic Understanding, p. 495, Science Research Associates, Inc. (1976).

pure inflation: "a rise in the average price level not caused by any changes in conditions of supply but brought about entirely by changes in demand [....] a decrease in the value of money relative to all other goods, with no change induced by altered supply conditions in the values of those other goods relative to one another". ---Paul Heyne & Thomas Johnson, Toward Economic Understanding, p. 623-624, Science Research Associates, Inc. (1976).

Employee (noun): "A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed." Black's Law Dictionary, page 471 (5th ed. 1979).

Sovereignty (noun): ..."the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation....[t]he power to do everything in a state without accountability -- to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like." Black's Law Dictionary, page 1252 (5th ed. 1979).

Sovereign (noun): "A person, body, or state in which independent and supreme authority is vested...." Black's Law Dictionary, page 1252 (5th ed. 1979).

A sovereign state has been defined as an entity having (1) a defined territory, (2) a permanent population, (3) an effective government, and (4) the capacity to enter into relations with other states. See Thomas Buergenthal & Sean D. Murphy, Public International Law in a Nutshell, p. 36, West Group (3d ed. 2002).

conspire (verb): "to join in a secret agreement to do an unlawful or wrongful act or to use such means to accomplish a lawful end." Webster's New Collegiate Dictionary, p. 243 (G. & C. Merriam Company, 8th ed. 1976).

conspiracy (noun): "the act of conspiring together...an agreement among conspirators...." Webster's New Collegiate Dictionary, p. 243 (G. & C. Merriam Company, 8th ed. 1976).

deadbeat (noun): "one who persistently fails to pay his debts or his way...." Webster's New Collegiate Dictionary, p. 290 (G. & C. Merriam Company, 8th ed. 1976).

arrogance (noun): "a feeling of superiority manifested in an overbearing manner or presumptuous claims". Webster's New Collegiate Dictionary, p. 63 (G. & C. Merriam Company, 8th ed. 1976); "overbearing pride or self-importance". Webster's New World Dictionary of the American Language, p. 77 (2d Coll. ed. 1978).

arrogant (adjective): "exaggerating or disposed to exaggerate one's own worth or importance in an overbearing manner". Webster's New Collegiate Dictionary, p. 63 (G. & C. Merriam Company, 8th ed. 1976); "full of or due to unwarranted pride and self-importance; overbearing; haughty". Webster's New World Dictionary of the American Language, p. 77 (2d Coll. ed. 1978).

arrogate (verb): "to claim or seize without justification.... to make undue claims to having". Webster's New Collegiate Dictionary, p. 63 (G. & C. Merriam Company, 8th ed. 1976); "to claim or seize without right... to ascribe or attribute without reason". Webster's New World Dictionary of the American Language, p. 77 (2d Coll. ed. 1978).

blowhard (noun): "braggart". Webster's New Collegiate Dictionary, p. 121 (G. & C. Merriam Company, 8th ed. 1976).

braggart (noun): "a loud arrogant boaster." Webster's New Collegiate Dictionary, p. 133 (G. & C. Merriam Company, 8th ed. 1976).

boast (verb): "to speak of or exert with excessive pride...." The term "often suggests ostentation and exaggeration". Webster's New Collegiate Dictionary, p. 123 (G. & C. Merriam Company, 8th ed. 1976).

Definitions relating to "income"[edit]

Some tax protesters say things like this: "The word 'income' is not defined in the Constitution or the Internal Revenue Code, so I don't have to pay the tax."

Well, not exactly.

For purposes of the income tax, it is correct to say that the word "income" itself is not defined in the Internal Revenue Code.

The terms "gross income," "adjusted gross income," and "taxable income" are defined in sections 61, 62, and 63 respectively.

More directly to the point -- and this may come as a shock to some people -- under the U.S. legal system there is no legal requirement that any particular word be defined in a statute (or anywhere else) in order for that statute to be valid. That goes for income tax statutes and any other statutes. In fact, most words in most statutes are not defined in those statutes.

By the way, most words in the U.S. Constitution also are not defined in the Constitution, and that has no effect on legal validity.

Regarding imposition of income tax, Internal Revenue Code sections 1 and 11 are examples of statutes that impose an income tax on taxable income, which is defined in section 63.

From the Glenshaw Glass case:

....we cannot but ascribe content to the catchall provision of § 22 (a) [of the Internal Revenue Code of 1939, now section 61 of the 1986 Code], "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 ... to say now that it adds nothing to the meaning of "gross income."
Nor can we accept respondent's contention that a narrower reading of § 22 (a) is required by the Court's characterization of income in Eisner v. Macomber, 252 U. S. 189, 207, as "the gain derived from capital, from labor, or from both combined." ... The Court was there endeavoring to determine whether the distribution of a corporate stock dividend constituted a realized gain to the shareholder, or changed "only the form, not the essence," of his capital investment. Id., at 210. It was held that the taxpayer had "received nothing out of the company's assets for his separate use and benefit." Id., at 211. The distribution, therefore, was held not a taxable event. In that context—distinguishing gain from capital—the definition served a useful purpose. But it was not meant to provide a touchstone to all future gross income questions. Helvering v. Bruun, supra, at 468-469; United States v. Kirby Lumber Co., supra, at 3.
Here we have instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.....

--from Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). See: [37].

In Penn Mutual Indemnity Co. v. Commissioner, the United States Court of Appeals for the Third Circuit stated:

It did not take a constitutional amendment to entitle the United States to impose an income tax. Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 158 U. S. 601 (1895), only held that a tax on the income derived from real or personal property was so close to a tax on that property that it could not be imposed without apportionment. The Sixteenth Amendment removed that barrier. Indeed, the requirement for apportionment is pretty strictly limited to taxes on real and personal property and capitation taxes.
It is not necessary to uphold the validity of the tax imposed by the United States that the tax itself bear an accurate label [ . . . ]
It could well be argued that the tax involved here [a U.S. federal income tax] is an "excise tax" based upon the receipt of money by the taxpayer. It certainly is not a tax on property and it certainly is not a capitation tax; therefore, it need not be apportioned. [ . . . ] Congress has the power to impose taxes generally, and if the particular imposition does not run afoul of any constitutional restrictions then the tax is lawful, call it what you will.

--Penn Mutual Indemnity Co. v. Commissioner, 277 F.2d 16, 60-1 U.S. Tax Cas. (CCH) paragr. 9389 (3d Cir. 1960) (footnotes omitted).

Gross income other than the receipt of money[edit]

From the U.S. Supreme Court:

Section 22(a) of the Revenue Act [now section 61 of the Internal Revenue Code of 1986] is broad enough to include in taxable income any economic or financial benefit conferred on the employee as compensation, whatever the form or mode by which it is effected.

---from Commissioner v. Smith, 324 U.S. 177, 65 S. Ct. 591, 45-1 U.S. Tax Cas. (CCH) ¶9187 (1945) (dicta).

The text of the opinion in the Wangrud case, in full:

PER CURIAM:
Mr. Wangrud appeals his conviction on two counts of wilful failure to make an income tax return. 26 U.S.C. § 7203. For the tax years in question the defendant received checks from the State Farm Insurance Company as compensation for his services. He now argues that he did not receive money, since the checks could be cashed only for federal reserve notes and that these are not redeemable in specie. We publish this opinion solely to make it clear that this argument has absolutely no merit. We affirm this conviction.
By statute it is established that federal reserve notes, on an equal basis with other coins and currencies of the United States, shall be legal tender for all debts, public and private, including taxes. 31 U.S.C. § 392 (Supp.1976) [now 31 U.S.C. § 5103]. This statute is well within the constitutional authority of Congress. U.S.Const. art. I, § 8. It so completely disposes of appellant's argument that it is unnecessary for us to invoke other provisions of the Internal Revenue Code which would be equally dispositive, defining as income compensation received in forms other than money. See Internal Revenue Code of 1954, § 61.
We have considered appellant's other argument and we find it to be without merit.
The conviction is affirmed.

--United States v. Wangrud, 533 F.2d 495 (9th Cir. 1976) (per curiam), cert. denied, 429 U.S. 818 (1976), at [38] (bolding added).

Precedent[edit]

Precedent. "[ . . . ] A rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases." Black's Law Dictionary, p. 1059 (5th ed. 1979).

In the United States, which uses a common law system in its federal courts, the Ninth Circuit Court of Appeals has stated:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

--United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996), at [39] (bolding added).

The United States Supreme Court has stated that where a court gives multiple reasons for a given result, each alternative reason that is "explicitly" labeled by the court as an "independent" ground for the decision is not treated as "simply a dictum." See O'Gilvie v. United States, 519 U.S. 79, 84 (1996).

One law professor has described mandatory precedent as follows:

Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of the precedent case are also present in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.

--Marjorie D. Rombauer, Legal Problem Solving: Analysis, Research and Writing, pp. 22-23 (West Publishing Co., 3d ed. 1978). (Rombauer was a professor of law at the University of Washington.)

Somewhat misleading information from the Internal Revenue Manual (specifically, in paragraph 3):

4.10.7.2.9.8 (01-01-2006)
Importance of Court Decisions
1. [. . . . ]
2. Certain court cases lend more weight to a position than others. A case decided by the U.S. Supreme Court becomes the law of the land and takes precedence over decisions of lower courts. The Internal Revenue Service must follow Supreme Court decisions. For examiners, Supreme Court decisions have the same weight as the Code.
3. Decisions made by lower courts, such as Tax Court, District Courts, or Claims Court, are binding on the Service only for the particular taxpayer and the years litigated. Adverse decisions of lower courts do not require the Service to alter its position for other taxpayers.

Paragraph 3 is the problematic material. Before we get into an explanation of that, we should explain that the Internal Revenue Manual itself is not authoritative as a statement about the law. Further, the general rule is that neither the taxpayer nor the IRS is bound by the Internal Revenue Manual. See, e.g., United States v. Horne, 714 F.2d 206 (1st Cir. 1983) (per curiam); First Federal Savings & Loan Ass'n v. Goldman, 86-2 U.S. Tax Cas. (CCH) ¶ 9624 (W.D. Pa. 1986). Thus -- ironically -- the IRS is not even bound by its own statement that "[d]ecisions made by lower courts, such as Tax Court, District Courts, or Claims Court, are binding on the Service only for the particular taxpayer and the years litigated". The Internal Revenue Manual is simply an internal manual published by the IRS for guidance to its own personnel.

Now, as to paragraph 3: The statement that the decisions of lower courts are binding on the IRS "only for the particular taxpayer and the years litigated" needs to be taken with a grain of salt. The legal reality is that if a given lower court has established a precedent on a particular point of law in a prior case and the IRS tries to re-argue that same point in a subsequent case in that same court, the IRS is probably going to lose -- again. And, if a court of appeals for a given circuit has established a precedent on a particular point of law in a prior case and the IRS tries to re-argue that same point in a subsequent case in a lower court that is within that particular circuit, the IRS is probably going to lose -- again. IRS attorneys know this. And IRS attorneys are not in the habit of beating their heads against the wall by the wholesale disregard of the fundamental concept of judicial precedent.

Further, I have been representing taxpayers in dealings with the IRS for over twenty years, in tax return examinations, lien issues, levy issues, tax refund issues, etc. I have dealt with IRS revenue agents, revenue officers, appeals officers, special agents, IRS attorneys, and others. I have never once had an IRS officer or employee tell me that the IRS was not going to follow a particular judicial precedent that I cited because the precedential rule was "binding on the Service only for the particular taxpayer and the years litigated."

Here is a more accurate explanation of what paragraph 3 means, from the IRS (the explanation was written by IRS attorneys):

AODs [IRS Actions on Decisions, a set of internal IRS pronouncements regarding court decisions] and subsequent announcements generally do not affect the application of stare decisis or the rule of precedent. The Service will recognize these principles and generally concede issues accordingly during administrative proceedings. Furthermore, the Service generally adheres to the controlling precedent of a given circuit when litigating a case bound by that circuit’s precedent, per Golsen v. Commissioner [the court case establishing the legal doctrine that in the absence of a United States Supreme Court ruling on a given issue, the U.S. Tax Court follows the precedent of the United States Court of Appeals for that circuit applicable to that case (assuming of course that the applicable Court of Appeals has made a ruling on that matter)].
Nevertheless, in very rare circumstances, nonacquiescence to a circuit court case will not necessarily imply an intention on the part of the Service to comply with the precedent within the same circuit issuing the opinion. This [an IRS intention to continue to take a position in a given circuit that might be contrary to the ruling of the Court of Appeals for that circuit] may occur if the Service intends to continue to litigate the matter in the deciding circuit or if the case does not establish controlling circuit court precedent because the holding can be limited to its unique facts. In such cases, the AOD will provide explicit guidance concerning how to handle the matter within the issuing circuit.

--from Mitchell Rogovin & Donald L. Korb, "The Four R’s Revisited: Regulations, Rulings, Reliance, and Retroactivity in the 21st Century: A View From Within", 46 Duquesne Law Review 323 (2008); re-printed in CCH’s Taxes – The Tax Magazine, August 2009 (CCH) (bolding added).

Even this Rogovin-Korb explanation is a bit confusing. Perhaps the IRS position is that in very rare circumstances, the IRS will not acquiesce with respect to a point of law discussed in the written opinion of a court of appeals in a given case in a given circuit, and will continue to litigate that point in subsequent cases in that circuit, where IRS attorneys believe that the IRS can take a reasonable position that the holding of that case can be limited to its unique facts.

Burden of proof[edit]

The term "burden of proof" is used variously, to refer to one or more of three kinds of burdens in American courts:

Burden of pleading: “the obligation to plead each element of a cause of action or affirmative defense on pain of suffering a dismissal [ . . . ]” Barron’s Law Dictionary, p. 56 (2nd ed. 1984).

Burden of production, duty of producing evidence, burden of evidence, production burden, or burden of going forward: “the duty that the plaintiff has at the beginning of the trial to produce evidence sufficient to avoid a preemptory finding at the close of his case [ . . . ]” the “burden of making a prima facie [ . . . ] showing as to each fact needed to make a prima facie case” [ . . . ] “This burden, once allocated, is often shifted in the course of the trial to the opposing side”. Barron’s Law Dictionary, p. 56 (2nd ed. 1984).

Burden of persuasion or risk of nonpersuasion: the risk that the party encumbered with the burden “will lose if the trier of fact in deliberating the final outcome of the case, remains in doubt or is not convinced to the degree required [ . . . ] ” (e.g., preponderance of the evidence, or clear and convincing evidence, or evidence beyond a reasonable doubt, depending on the type of legal proceeding). Barron’s Law Dictionary, p. 55 (2nd ed. 1984).

Real party in interest, capacity and standing[edit]

Regarding the legal doctrine of “real party in interest”:

[ . . ] the named plaintiff [must] possess, under the governing substantive law, the right sought to be enforced [ . . .]

--from Jack H. Friedenthal, Mary Kay Kane and Arthur R. Miller, Civil Procedure, § 6.3, p. 319 (West Publishing Co. 1985) (footnotes omitted).

Regarding the legal doctrine of “capacity”:

Capacity to sue or be sued refers to an individual’s ability to represent her interests in a lawsuit without the assistance of another person.

--from Jack H. Friedenthal, Mary Kay Kane and Arthur R. Miller, Civil Procedure, § 6.3, p. 323 (West Publishing Co. 1985).

Regarding the legal doctrine of “standing”:

In addition to the threshold requirements of real party in interest and capacity, a party must have “standing” to sue -- a doctrine typically in issue when the plaintiff seeks to challenge a statute or an executive or administrative decision by a governmental agency.
[ . . . ] all standing issues are rooted in the constitutional restriction that courts may adjudicate only “cases or controversies.” If a federal court decides that the party bringing the action is not associated sufficiently with the controversy, the court is prohibited by Article III from hearing the action.
[ . . .]To have standing, a plaintiff must show (1) that the challenged conduct has caused injury in fact, and (2) that the interest sought to be protected is within the zone of interests to be protected or regulated by the statutory or constitutional guarantee in question.

--from Jack H. Friedenthal, Mary Kay Kane and Arthur R. Miller, Civil Procedure, § 6.3, pp. 325 - 327 (West Publishing Co. 1985) (footnotes omitted).

Usufruct[edit]

The concept of the usufruct,

I think, we find

Is neatly tucked

Somewhere within the Civil Law.

Louisiana stands in awe!

If Cajun Country's your abode,

You'll find Napoleonic Code--

Unlike the folks who live in Texas.

Over here, the only nexus

With the French that we can find

Is Cajun seafood -- we don't mind!

The English law, it works for me.

Compare the two, and you may see

A little similarity

In usufruct

And equity.

--Famspear, Oct. 1, 2010.

Psychology stuff[edit]

"In every utterance a speaker or writer unknowingly tells us a great deal about himself of which he is entirely unaware."

--Walter C. Langer, The Mind of Adolf Hitler: The Secret Wartime Report, p. 147 (Basic Books Inc. 1972).

More commentary from Daniel B. Evans:

My own observations of tax protesters lead me to believe that the actions of tax protesters are driven by emotional or psychological needs that are more complicated than simple greed, and that the “arguments” they present to the IRS and the courts are really nothing but elaborate rationalizations (or delusions) that they have constructed in order to avoid a reality that they are unable to accept. Sometimes the unacceptable reality is a sense of personal financial failure. Unable to accept the idea that their own incomes (or the lack thereof) might be the result of their own lack of skill or effort, or a matter of impersonal economics, tax protesters instead decide that the income tax system is the problem and begin finding reasons why it should not exist. In other cases, the unacceptable reality may be a moral or legal failure. An unhappy encounter with the government, such as a bad result in a divorce or a child custody dispute, or even something as minor as a speeding ticket, can lead to a belief that the government is broken, corrupt, or otherwise dysfunctional, which can then lead to a fixation on the federal tax system as symbolic of that dysfunction. In the case of almost every persistent tax protester, there is some personal, financial, or legal trauma or crisis that precedes the tax protester’s obsession with the tax system.

--From Daniel B. Evans, the Tax Protester FAQ

More from Evans:

You can self-determine your own opinions and your own actions, but what you can't do is self-determine reality.
You can self-determine the laws of aerodynamics, and self-determine how to build your own plane based on your own laws, but that doesn't mean your plane will fly.
And you can self-determine your own tax laws, and self-determine how to file your own tax returns, but that doesn't mean your returns will fly in court.
How the courts rule is reality. Talking about a "correct" view of tax law that consistently fails in court is as silly as talking about a "correct" view of the laws of aerodynamics that consistently fails in the sky.
Most of what lawyers do is try to predict how courts will rule, and we predict how courts will rule by studying how judges think. When it comes to a CtC [Cracking the Code, a federal tax evasion scam whose creator served time in federal prison for using the scam on his own tax returns] argument, I can tell you with 100% certainty that it will fail in court. I can tell you that because I have read enough of CtC to see that its reasoning, and its conclusions, are completely inconsistent with every opinion written by every judge in the history of the United States.

--Daniel B. Evans, July 9, 2010, at [40].

From "Duke2Earl" on September 8, 2010:

The actual fact is tax denial is usually a symptom, not a disease in itself. Tax deniers are usually people that have a whole panopy of other issues with their relationship to society and especially authority. And the reason why they can't be treated is because it is usually not effective to treat a symptom apart from the disease. There are exceptions, of course, people who have been led astray on this one issue but they are the minority... and they often do see the light. But for most tax deniers, tax denial is only a single manifestation of a much larger problem.

--from the Quatloos forum at [41].

The tax protester's typical train of thought:

1. They are making me do it.
2. I don't want to do it.
3. I don't understand whey they are making me do it.
4. This is a free country, so I shouldn't have to do it.
5. If they are still trying to make me do it, I have to find some explanation as to why they are doing all this to me.
6. They use fancy lawyer-talk to make me do it.
7. I need to find some fancy lawyer-talk of my own to make them stop.

by Pottapaug1938, June 24, 2011, at [42]

Tax Protesters and Transference[edit]

From something I wrote on the subject of tax protesters a few years ago:

To some degree, many of us in our daily lives may from time to time engage in a mental process called "Transference," which one psychiatrist has defined as "the inappropriate repetition in the present of a relationship that was important in a person's childhood." (Leonard H. Kapelovitz, M.D., To Love and To Work/A Demonstration and Discussion of Psychotherapy, p 66 (1987)). Part of the animus behind the ravings of some tax protesters is the burning, infantile urge to rebel against an Authority Figure (probably in many cases a parent). This includes an attempt to work out an unresolved situation or problem with an Authority Figure that developed in infancy or early childhood. The subject tries to work through the problem by inappropriately substituting a present-day person (or even an object or a concept) for the parent, and dealing with the Substitute as though it were the parent. This means that instead of consciously attacking "Mommie" or "Daddy" directly, the subject subconsciously substitutes a presumably safer and more distant target.
A possible psychological aspect of all this is the deep seated infantile feeling among some tax protesters that they have been lied to or misled or neglected or abused or otherwise treated unfairly by a parent or parental figure. The trust that should have been felt in the relationship with the parent was supplanted by fear, mistrust, etc. The resulting unhappy feeling sometimes manifests itself in what I call the "you can't fool me" syndrome -- a conspiratorial view of the world, perhaps bordering in a few cases on a paranoid view. This can be seen in the numerous references in tax protester literature to putatively malevolent authority figures -- judges, lawyers, CPAs, congressmen, bankers, etc. -- massive numbers of people since the advent of the modern U.S. income tax in 1913 who are supposedly engaged in a vast, selfish conspiracy to "hide the truth" about the Federal income tax.
"You can't fool me" is often the feeling, or emotion, or "affect" behind all this. Some tax protesters, like conspiracy theorists in general, work up a magnificent, elaborate, totally improbable "Weltanschauung." If the subject can create a fully elaborated explanation that connects the dots he or she feels in his or her mind should be connected, then he or she feels somehow "safer" or protected from the real or imagined predations that might come from the putatively malevolent "parent," and cannot be "fooled" by that parent's real or imagined actions.
The tax protester may feel he must deal with an early childhood conflict with his parent, but does so "safely" (or so he feels) by not confronting the parent directly. The protester, through this Transference, substitutes the Federal government or the central bank, or the tax law, etc., which becomes the Substitute Authority Figure. The protester subconsciously attempts to weaken the perceived "power" or even omnipotence of the parent by consciously attacking the validity, the legitimacy, of the Substitute Authority Figure. "There is no law that requires me to pay income tax" and so on.
In effect, the protester may be consciously trying to hold the Substitute Authority Figure accountable to the infantile standard (of fairness, etc.) set by the protester in his early, uncomfortable dealings with the parent. The protester consciously attempts to hold the Substitute Authority Figure accountable to the standards the protester subconsciously feels should have been used by his parents with him in early childhood by indirectly and unconsciously denying the legitimacy of the parent's authority and power -- through the device of directly and consciously denying the authority or righteousness or validity or power of the Substitute Authority Figure.
The protester is disturbed, however, when reality infuses the protester's attempt at the use of the Transference to resolve the infantile conflict. That is, the tax protester becomes upset when third parties point out massive amounts of authoritative information (i.e., the actual texts of the Constitution, statutes, regs, court decisions, etc.) that contradict the protester's view of the tax law (the Substitute Authority Figure) -- and the protester responds to this reality check very consciously and emotionally. This response is seated ultimately, however, not in the protester's present-day relationship to the tax law (the Substitute Authority Figure) but instead in the protester's past infantile relationship with the parent, which relationship is now being dealt with subconsciously and inappropriately. If the Substitute Authority Figure is shown to have validity and power, then in the subconscious mind of the protester the parent must also have been legitimate and powerful -- and the protester decompensates in a very emotional, angry, or otherwise uncomfortable way.
A further possible aspect of this in the process is that third parties who present authoritative information that contradicts a tax protester's view may, in the mind of the protester, be closely but subconsciously and inappropriately associated with the parent, and the anger, hurt or mistrust resulting from the infantile relationship with the parent may, through another Transference, be expressed by the tax protester toward the third party. Essentially, an attempt to provide data that contradicts the tax protester's view may be subconsciously but inappropriately viewed by the protester as an attempt by the third party to "take the side of the parent" -- or even be the parent -- in the dispute. One tax protester explicitly (but, in his own mind, subconsciously) apparently made this inappropriate connection on another web site in an exchange with me when he said, in response to something I wrote, that "because you say so on the (alleged) authority of your education is no different than: 'Because I'm the Mommy, that's why.'"
"[T]he patient misunderstands the present in terms of the past" (Kapelovitz, at p. 66, quoting Fenichel O, The Psychoanalytic Theory of Neurosis, p. 29 (1945)). "[ . . . ] [A]ll symptoms and neurotic patterns were originally solutions. Unfortunately, they were childhood solutions that have persisted into adulthood." Kapelovitz, p. 81.

Evidence[edit]

The United States Supreme Court has noted, regarding every man's evidence:

Dean Wigmore stated the proposition thus: "For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving [ . . . ]"

--United States v. Bryan, 339 U.S. 323, 331 (1950), citing Wigmore, Evidence (3d ed.) 2192.

From the U.S. Bankruptcy Code:

(e) Subject to any applicable privilege, after notice and a hearing, the court may order an attorney, accountant, or other person that holds recorded information, including books, documents, records, and papers, relating to the debtor’s property or financial affairs, to turn over or disclose such recorded information to the trustee.

--11 U.S.C. section 542(e).

From the committee reports on section 542(e):

Subsection (e) requires an attorney, accountant, or other professional that holds recorded information relating to the debtor’s property or financial affairs, to surrender it to the trustee. This duty is subject to any applicable claim of privilege, such as attorney-client privilege. It is a new provision that deprives accountants and attorneys of the leverage that they have today, under State law lien provisions, to receive payment in full ahead of other creditors when the information they hold is necessary to the administration of the estate.

--from Senate Report 95-989.

Quotes about taxes[edit]

"....in this world nothing can be said to be certain, except death and taxes." Letter from Benjamin Franklin to Jean-Baptiste Le Roy (Nov. 13, 1789), in 10 The Writings of Benjamin Franklin 69 (A. Smyth ed. 1907), as quoted by the United States Court of Appeals for the Tenth Circuit in United States v. Pflum, 2005-2 U.S. Tax Cas. (CCH) ¶50,603 (10th Cir. 2005) (not for pub.).

More quotes:

"Le protestataire d'impôts et l'homme qui suit: L'aveugle conduit l'aveugle, et le deux tombe dans une fosse." -- Famspear, July 16, 2007.

From a federal bankruptcy court:

The power to tax is "a fundamental and imperious necessity" of government. In the case of federal tax law, this power is not restricted by "mere legal fictions". Tyler v. U.S., 281 U.S. 497, 503, 50 S.Ct. 356, 358, 74 L.Ed. 991 (1930). Federal law may not be "struck blind" by state law. Drye v. U.S., 528 U.S. 49, 59, 120 S.Ct. 474, 481, 145 L.Ed.2d 466 (1999).

--from Jones v. Cendant Mortgage Corp. (In re Jones), 396 B.R. 638 (Bankr. W.D. Pa. 2008).

Court rulings versus Green Cheese arguments[edit]

From a talk page for a Wikipedia article:

Dear editor [xxxx]: Well, if Einstein's theory of relativity is a correct statement of how the laws of physics work, then it is "true" for that reason -- and not because Einstein and 99% of all present-day scientists contend it's true, or believe it's true, or say it's true.
Secular law (made made law) of the USA is a bit different. Under the rules of the U.S. legal system, the law literally is what courts rule that it is in an actual case or controversy. Some of the key concepts are Stare decisis and Ratio decidendi. Further, under our legal system, it is emphatically the province and duty of the courts to say what the law is, to paraphrase a famous Supreme Court case. To study the ontology of U.S. law, to understand what law really is, you study statutes, regs, treaties, and other sources as well -- but it's primarily a study of court decisions. Court decisions are where the rubber meets the road under our legal system.
I believe these articles do represent what the tax protesters' points of views are, and the courts' "views" as well. Further, the articles strive for neutral point of view, as they do not say "the courts are right" or "the protesters are right." There is a difference between saying "the court ruled in this case that the income tax was not unconstitutional, and this ruling contradicts the tax protester argument" (which is both verifiable and neutral) and saying "the court ruling in this case is correct." There is a nuance here. I don't think the articles say that "the courts are correct" (even though, by definition, the courts are correct).
The court's Ratio decidendi in any particular case must be determined using certain rules of legal analysis. The holding or holdings of each case can be broadly or narrowly stated, but under the rules of legal analysis there is simply no room for the tax protester argument (for example) that Merchants' Loan somehow stands for the legally frivolous idea that non-corporate income is not taxable as "income," as the Court in that case ruled that the income of a decedent's estate -- which is an example of non-corporate income -- IS taxable as income.
Any article on tax protester arguments that follows the Wikipedia rules (verifiability, neutral point of view, and no original research) will by definition leave most normally intelligent people with the correct impression that the tax protesters are incorrect -- because that is the actual state of the law. Tax protester arguments are a legal equivalent to the argument that the moon is made of green cheese. Wikipedia would do its readers a disservice if Wikipedia were to strain to try to provide equal weight to the tax protester argument. Indeed, by including tax protester arguments in Wikipedia, I would argue we are actually giving undue weight to them. Imagine Encyclopedia Brittanica giving substantial article space to the argument that the moon is made of green cheese -- comparing and contrasting scientific theories about the moon with the green cheese argument. Here you will have a good idea of the situation.

--from [43] by Famspear, on 27 October 2006.

Kruger and Dunning[edit]

Here is a quote from researchers Justin Kruger and David Dunning:

...when people are incompetent in the strategies they adopt to achieve success and satisfaction, they suffer a dual burden: Not only do they reach erroneous conclusions and make unfortunate choices, but their incompetence robs them of the ability to realize it. Instead . . . they are left with the mistaken impression that they are doing just fine.

Justin Kruger & David Dunning, “Unskilled and Unaware of It: How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessments,” Journal of Personality and Social Psychology, 1999, Vol. 77, No. 6, p. 1121. See Dunning-Kruger effect.

And another:

...the skills that engender competence in a particular domain are often the very same skills necessary to evaluate competence in that domain – one’s own or anyone else’s. Because of this, incompetent individuals lack what cognitive psychologists variously term metacognition [citation omitted], metamemory, [cit. omitted] metacomprehension [cit. omitted] or self monitoring skills [cit. omitted]. These terms refer to the ability to know how well one is performing, when one is likely to be accurate in judgment, and when one is likely to be in error.

Justin Kruger & David Dunning, “Unskilled and Unaware of It: How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessments,” Journal of Personality and Social Psychology, 1999, Vol. 77, No. 6, p. 1121.

The U.S. Constitution provides general descriptions of powers, not detailed, precise descriptions of subdivisions of those powers[edit]

From the U.S. Supreme Court:

A constitution, establishing a frame of government, declaring fundamental principles, and creating a national sovereignty, and intended to endure for ages and to be adapted to the various crises of human affairs, is not to be interpreted with the strictness of a private contract. The Constitution of the United States, by apt words of designation or general description, marks the outlines of the powers granted to the national legislature; but it does not undertake, with the precision and detail of a code of laws, to enumerate the subdivisions of those powers, or to specify all the means by which they may be carried into execution.

--from Juilliard v. Greenman, 110 U.S. 421 (1884), at [44].

Interpreting statutes according to their purpose or objective[edit]

From Learned Hand:

Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

--from Cabell v. Markham, 148 F.2d 737 (2d Cir. 1945).

Frivolous tax protester arguments as a burden on the courts[edit]

From the U.S. Court of Appeals for the Ninth Circuit:

Romero next alleges that he was denied a fair trial based on an unknowing and unintelligent waiver of appointed counsel. At his initial appearance on November 13, 1979, Romero was advised of his right to be represented by counsel, and a public defender was appointed to represent him. This representation continued until January 8, 1980, when Romero unequivocally stated he wished to represent himself; Romero elected to appear pro se in his own defense. We find that counsel for Romero did adequately represent him until the time of his discharge at the insistence of Romero. [ . . . .] Romero demanded that he be allowed to represent himself, despite being advised by the trial judge that self-representation would be extremely unwise. Romero "`knowingly and intelligently'" waived the assistance of counsel. Furthermore, Romero has a constitutional right to represent himself, which the court must honor upon proper request. [ . . . ] It appears that Romero, by his own deliberate and intentional actions, seeks to insert built-in error in these proceedings, so as to postpone a final inquiry into his failure to comply with the tax laws of this country. Courts are established at public expense to try issues, not to play games. Romero was following the scenario used by other tax protestors in discharging appointed counsel and then contending unknowing waiver of counsel.
[ . . . ]
Romero received a fair trial. He based his defense on his proclaimed belief that the wages he earned were not taxable income and that he was not a person within the meaning of the income tax laws. At trial the judge properly instructed the jury on these matters of law. The jury's function is to determine matters of fact. Compensation for labor or services, paid in the form of wages or salary, has been universally, held by the courts of this republic to be income, subject to the income tax laws currently applicable. We recognize that the tax laws bear heavily on all persons engaged in gainful activity, and recognize the right of a taxpayer to minimize his taxes by all lawful means. But Romero here is not attempting to minimize his taxes; instead he is attempting willfully and intentionally to shift his burden to his fellow workers by the use of semantics. He seems to have been inspired by various tax protesting groups across the land who postulate weird and illogical theories of tax avoidance, all to the detriment of the common weal and of themselves.

--from United States v. Romero, 640 F.2d 1014 (9th Cir. 1981) (bolding added) (Robert Romero's conviction on five counts of willful failure to file U.S. federal income tax returns was affirmed), at [45].

From the United States Tax Court:

In recent times, this Court has been faced with numerous cases, such as this one, which have been commenced without any legal justification but solely for the purpose of protesting the Federal tax laws. This Court has before it a large number of cases which deserve careful consideration as speedily as possible, and cases of this sort needlessly disrupt our consideration of those genuine controversies. Moreover, by filing cases of this type, the protesters add to the caseload of the Court, which has reached a record size, and such cases increase the expenses of conducting this Court and the operations of the IRS, which expenses must eventually be borne by all of us.
Many citizens may dislike paying their fair share of taxes; everyone feels that he or she needs the money more than the Government. On the other hand, as Justice Oliver Wendell Holmes so eloquently stated: "Taxes are what we pay for civilized society." Compania de Tabacos v. Collector, 275 U.S. 87, 100 (1927). The greatness of our nation is in no small part due to the willingness of our citizens to honestly and fairly participate in our tax collection system which depends upon self-assessment. Any citizen may resort to the courts whenever he or she in good faith and with a colorable claim desires to challenge the Commissioner's determination; but that does not mean that a citizen may resort to the courts merely to vent his or her anger and attempt symbolically to throw a wrench at the system. Access to the courts depends upon a real and actual wrong--not an imagined wrong--which is susceptible of judicial resolution. General grievances against the policies of the Government, or against the tax system as a whole, are not the types of controversies to be resolved in the courts; Congress is the appropriate body to which such matters should be referred.

--Hatfield v. Commissioner, 68 T.C. 895, CCH Dec. 34,628 (1977), at [46].

Natural rights and privileges are subject to taxation[edit]

From the United States Supreme Court:

We learn that employment for lawful gain is a 'natural' or 'inherent' or 'inalienable' right, and not a 'privilege' at all. But natural rights, so called, are as much subject to taxation as rights of less importance. An excise is not limited to vocations or activities that may be prohibited altogether. It is not limited to those that are the outcome of a franchise. It extends to vocations or activities pursued as of common right [ . . . ] Indeed, ownership itself, as we had occasion to point out the other day, is only a bundle of rights and privileges invested with a single name [ . . . ] 'A state is at liberty, if it pleases, to tax them all collectively, or to separate the faggots and lay the charge distributively.' [ . . . ] Employment is a business relation, if not itself a business. It is a relation without which business could seldom be carried on effectively. The power to tax the activities and relations that constitute a calling considered as a unit is the power to tax any of them.

---from Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (upheld the constitutionality of U.S. Social Security tax imposed on employers) (footnotes and citations omitted).

More from the U.S. Supreme Court:

Taxes, which are but the means of distributing the burden of the cost of government, are commonly levied on property or its use, but they may likewise be laid on the exercise of personal rights and privileges. As has been pointed out by the opinion in the Chas. C. Steward Machine Co. case, such levies, including taxes on the exercise of the right to employ or to be employed, were known in England and the Colonies before the adoption of the Constitution, and must be taken to be embraced within the wide range of choice of subjects of taxation, which was an attribute of the sovereign power of the states at the time of the adoption of the Constitution, and which was reserved to them by that instrument. As the present levy has all the indicia of a tax, and is of a type traditional in the history of Anglo-American legislation, it is within state taxing power, and it is immaterial whether it is called an excise or by another name.

--from Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 508-509 (1937) (bolding added) (holding that the Unemployment Compensation Act of Alabama did not infringe the due process and equal protection clauses of the Fourteenth Amendment, and rejecting argument that the Act was invalid because its enactment was coerced by the action of the Federal government in adopting the Social Security Act; also rejecting the argument that the Act was invalid because it involved an unconstitutional surrender to the national government of the sovereign power of the state).

A theme song for tax protesters[edit]

A theme song for tax protesters:

We're living in a land of make believe
And trying not to let it show....

--from "The Land of Make Believe", words and music by Justin Hayward, performed by the Moody Blues, from the album Seventh Sojourn (1972).

Quotes about writing, genius, etc.[edit]

Other quotes:

"Planning to write is not writing. Outlining, researching, talking to people about what you're doing, none of that is writing. Writing is writing...Writing is like driving at night in the fog. You can only see as far as your headlights, but you can make the whole trip that way." --E.L. Doctorow

"In every work of genius, we recognize our own rejected thoughts; they come back to us with a certain alienated majesty."--R.W. Emerson

"Greatness is not the gift of majorities; it cannot be thrust upon any man; men cannot give it to another; they can give place and power, but not greatness. The place does not make the man, nor the scepter the king. Greatness is from within."--Robert Ingersoll

From Absence of Malice[edit]

From the film Absence of Malice:

Davidek [the lawyer]: Let's suppose that your story proves to be false on its face.
Megan Carter [the reporter]: This story is true.
Davidek: Madam, if newspapers printed nothing but the truth, they need never employ attorneys, and I should be out of work -- which I am not.
Megan: I read the file.
Davidek: I'm not a whit interested in the facts; I'm concerned with the law. The question is not whether your story is true. The only question is: What protection do we have if it proves to be false? Mr. Gallagher is not a public official. Nor is he likely to become one...... Pity........ [Davidek contemplates, pensively, to himself.....] ......Is he a public figure?
Megan: He's not going to sue, for God's sake! What does it take to make him a public figure?
Davidek: If I knew that, I should be a judge. They never tell us till it's too late.

--From Absence of Malice (1981); screenplay by Kurt Luedtke and (uncredited) David Rayfiel; directed by Sydney Pollack.

Social Security benefits[edit]

Flemming v. Nestor, 363 U.S. 603 (1960).

Main points:

1. Where no application for an interlocutory or permanent injunction has been made, the exercise of jurisdiction over a dispute regarding the validity of an Act of Congress under the Constitution by only one judge rather than three at the U.S. District Court does not violate 28 USC section 2282.

2. The right to receive Social Security benefit payments is not an "accrued property right" to which an individual can be deemed to have been deprived under section 202(n) of the Social Security Act (codified at 42 USC section 402(n), relating in relevant part to termination of rights to receive Social Security benefit payments where the beneficiary is deported under section 241(a) of the Immigration and Nationality Act, 8 USC section 1251(a), on grounds specified in section 202(n)).

3. The right to receive Social Security benefit payments is not the kind of right where every defeasance of that right would violate the Due Process Clause of the Fifth Amendment.

4. Section 202(n) of the Social Security Act does not violate the constitutional protection of the Due Process Clause limiting the power of Congress to modify a statute in a way that constitutes arbitrary government action manifesting a patently arbitrary classification, utterly lacking in rational justification.

5. Section 202(n) of the Social Security Act does not violate the provision of Article I, section 9, clause 3 of the Constitution prohibiting an ex post facto law.

6. Section 202(n) of the Social Security Act does not violate the provision of Article I, section 9, clause 3 of the Constitution prohibiting a bill of attainder.

7. Section 202(n) of the Social Security Act does not violate Article III, section 2 clause 3 of the Constitution, relating to the right, in a criminal case, to a trial by jury in the state where the charged crime is alleged to have been committed.

8. Section 202(n) of the Social Security Act does not violate the Sixth Amendment to the Constitution, relating to a right to trial in a criminal case.

Generally, the right to receive Social Security benefits is not an "accrued property right". And: "To engraft upon the Social Security system a concept of 'accrued property rights' would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands." Thus, "...a person covered by the Act has not such a right in benefit payments as would make every defeasance of 'accrued' interests violative of the Due Process Clause of the Fifth Amendment." However: "The interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause."

Bias and prejudice in court[edit]

From the United States Supreme Court:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." In re J. P. Linahan, Inc., 138 F. 2d 650, 654 (CA2 1943). Also not subject to deprecatory characterization as "bias" or "prejudice" are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.

--from Liteky v. United States, 510 U.S. 540, 550-551 (1994), at [47] (bolding added).

Fair market value[edit]

For federal tax purposes, what is "fair market value"? The United States Supreme Court provides the answer:

The fair market value is the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.

--from United States v. Cartwright, 411 U. S. 546, 93 S. Ct. 1713, 1716-17, 36 L. Ed. 2d 528, 73-1 U.S. Tax Cas. (CCH) ¶ 12,926 (1973) (quoting from U.S. Treasury regulations relating to Federal estate taxes, at 26 C.F.R. sec. 20.2031-1(b)).

Another definition, from an appraiser:

The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: (1) buyer and seller are typically motivated; (2) both parties are well informed or well advised, and each acting in what he or she considers his or her own best interest; (3) a reasonable time is allowed for exposure in the open market; (4) payment is made in terms of cash in U. S. dollars or in terms of financial arrangements comparable thereto; and (5) the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions* granted by anyone associated with the sale.
  • Adjustments to the comparables must be made for special or creative financing or sales concessions. No adjustments are necessary for those costs which are normally paid by sellers as a result of tradition or law in a market area; these costs are readily identifiable since the seller pays these costs in virtually all sales transactions. Special or creative financing adjustments can be made to the comparable property by comparisons to financing terms offered by a third party institutional lender that is not already involved in the property or transaction. Any adjustment should not be calculated on a mechanical dollar for dollar cost of the financing or concession but the dollar amount of any adjustment should approximate the market's reaction to the financing or concessions based on the appraiser's judgment.

Legal logic[edit]

In response to a comment by a tax protester:

This commentary betrays a basic misconception common in the thought processes of many tax protesters. The tax protesters believe that through their own idiosyncratic version of "reasoning" or "logic," they have come to the correct conclusion about the law -- and that the courts, the vast majority of lawyers, CPAs, law professors, etc., etc., are incorrect because reasoning of the courts, the lawyers, etc., is somehow flawed.
Secular law, the set of rules enforced by government, is fundamentally different from the laws of science (e.g., the Earth in the center of the universe, etc.). I think we agree that if Einstein's General Theory of Relativity is a correct explanation of how the universe works, it is correct not because Einstein is recognized as an authority by the "system" of science or physics, but rather because the Theory accurately explains how things actually are. That's a bit tautological, but it illustrates the point: Even if Einstein is correct, the universe is the way it is not because Einstein (as an "authority") said so, but because -- well -- the world is just the way it is.
Secular law, however, is different. Under the U.S. legal system, the law is WHAT THE COURTS RULE THE LAW IS. This is a fundamental characteristic of the U.S. legal system itself. This means that judges are correct in their actual RULINGS about what the law is not because they have correctly deduced answers using what tax protesters feel are good rules of "logic", but rather because the "precedent" itself IS law (case law). Judges are correct in their rulings because, under the U.S. legal system, a ruling is BY DEFINITION a statement of what the law ACTUALLY IS -- until and unless that ruling is reversed (e.g., ruled erroneous) by a higher court or otherwise overturned by other legal action. (I'm oversimplifying here to make a point.)
In law school, I took a course called "Logic of Legal Discourse." Among other things, we studied the texts of actual court cases where the courts used flawed "logic" (in the sense of the accepted rules of logic you would study in a basic college philosophy course). The mere fact that a court uses flawed "logic" to arrive at a decision does not make that decision any less A CORRECT STATEMENT OF WHAT THE LAW IS (until and unless that decision is overturned, etc.) I know this may be a difficult concept to get your hands around.
You, like many tax protesters, are trying to "reason" your way to what you feel should be a correct statement of law. I see this all the time. The disagreement that tax protesters have with the courts over tax law involves in large part a disagreement over what law itself actually is. The fundamental concepts of jurisprudence and legal analysis that apply to the study of contracts, property, torts, criminal law, etc., also apply to taxation. The problem for the tax protesters is that they don't want to accept that. By attempting to reject the decisions reached by the courts on how tax law works, the protesters are effectively saying (without realizing it) that the rules of analysis that govern all areas of law (contracts, property, etc.) should not apply to taxation, that taxation is some sort of "special case." Unfortunately, that position is incorrect.
The protesters rely on incorrect idiosyncratic "reasoning" rather than correct jurisprudential reasoning - the actual rules of the logic of legal discourse. The protesters rely on their own idiosyncratic beliefs about logic and how they believe logic "should" work, how logic "should" be used, to arrive at correct legal conclusions, when what protesters should be doing is applying the ACTUAL rules of legal analysis embodied in our legal system based on the EXPERIENCE of real people in that system.
To paraphrase Oliver Wendell Holmes: The life of the law is not logic; the life of the law is experience.
Under the U.S. legal system, the proper study of law involves many things, but that study is in large part the study of case law -- how courts have ruled in the past, for the purpose of trying to predict with some reasonable accuracy how a court will actually rule on a given issue in the future. The proper study of law is not a strained, idiosyncratic effort to determine what the tax protester believes the law should be, using what the tax protester feels are rules of "logic."

---Famspear, June 5, 2007.

Argumentum ad Verecundiam[edit]

A short essay on the concept of fallacious appeal to authority:

Argumentum ad Verecundiam (appeal to authority)
In attempting to make up one's mind on a difficult and complicated question, one may seek to be guided by the judgment of an acknowledged expert who has studied the matter thoroughly. One may argue that such and such a conclusion is correct because it is the best judgment of such an expert authority. This method of argument is in many cases perfectly legitimate. For most of us the reference to an admitted authority in the special field of that authority's competence may carry great weight and constitute relevant evidence. If nonexperts are disputing over some question of physical science and one appeals to the testimony of Einstein on the matter, that testimony is very relevant. Although it does not prove the point, it certainly tends to support it. This is a relative matter, however, for if experts rather than nonexperts are disputing over a question in the field in which they themselves are experts, their appeal would be only to the facts and to reason, and any appeal to the authority of another expert would be completely without value as evidence.
But when an authority is appealed to for testimony in matters outside the province of that authority's special field, the appeal commits the fallacy of argumentum ad verecundiam. If in an argument about morality one of the disputants appeals to the opinions of Darwin, a great authority in biology, the appeal is fallacious. Similarly, an appeal to the opinions of a great physicist like Einstein to settle a political or economic argument would be fallacious. The claim might be that people brilliant enough to achieve the status of authorities in advanced and difficult fields like biology or physics must have correct opinions in field other than their specialties. But the weakness of this claim is obvious when we realize that, in this day of extreme specialization, to obtain thorough knowledge of one field requires such concentration as to restrict the possibility of achieving authoritative knowledge in others. Advertising "testimonials" are frequent instances of this fallacy. We are urged to wear garments of such and such a brand because a champion golfer or football star affirms their superiority. And we are assured that such and such a cosmetic is better because it is preferred by this opera singer or that movie star. Of course, such an advertisement may equally well be construed as snob appeal and listed as an example of an argumentum ad populum. But where a proposition is claimed to be literally true on the basis of its assertion by an "authority" whose competence lies in a different field, we have a fallacy of argumentum ad verecundiam.

--from Irving M. Copi, Introduction to Logic, Macmillan Publishing Company (7th ed. 1986), pp. 98-99 (bolding added).

Argumentum ad Hominem - Abusive[edit]

The phrase argumentum ad hominem translates literally as "argument directed to the man." It is susceptible to two interpretations, whose inter-relationship will be explained after the two are discussed separately. We may designate this fallacy on the first interpretation as the "abusive" variety. It is committed when, instead of trying to disprove what is asserted, one attacks the person who made the assertion.... This argument is fallacious, because the personal character of an individual is logically irrelevant to the truth or falsehood of what that individual says[,] or the correctness or incorrectness of that individual's argument.... This kind of argument is sometimes said to commit the Genetic Fallacy, because it attacks the source or genesis of the opposing position[,] rather than that position itself.

--from Irving M. Copi, Introduction to Logic, Macmillan Publishing Company (7th ed. 1986), p. 92.

Argumentum ad Hominem - Circumstantial[edit]

The other interpretation of the fallacy of argumentum ad hominem, the "circumstantial" variety, pertains to the relationship between a person's beliefs and his circumstances. Where two people are disputing, one may ignore the question of whether his own view is true or false and seek instead to prove that his opponent ought to accept it because of that opponent's special circumstances. Thus if one's adversary is a member of the clergy, one may argue that a certain proposition must be accepted because its denial is incompatible with the Scriptures. This [approach] is not to prove it [the first individual's view] is true, but to urge its acceptance by that particular [other] individual because of his or her special circumstances, in this case, religious affiliation.

--from Irving M. Copi, Introduction to Logic, Macmillan Publishing Company (7th ed. 1986), p. 93.

Where is the law that makes me "liable" for the tax?[edit]

Some tax protesters argue: "There is no law that makes me liable for the tax". The rhetoric they often use is "show me the law".

Some even contend or imply that for a given Code section to impose "liability," the language of that section itself must contain the word "liable". Some tax protesters promote this theory by pointing out that some sections of the Internal Revenue Code do contain the word "liable". The protesters' argument seems to be that because the word "liable" is used those Code sections, the word itself has a magical legal effect, such that the absence of the term "liable" in a Code section means that the section in question cannot impose any legal "liability." Unfortunately, that argument is false. Further, such a position is legally frivolous. The position is similar to the position that in order for murder to be against the law, or to be a crime, the statute itself must include the phrase "against the law" or the word "crime." There is no such rule of law that says that a particular statute must contain certain specific language. For example, the Texas statute making murder a crime does not include the word "crime" or the phrase "against the law."

Other tax protesters seem to believe that the entire verbiage imposing liability must be found in one and only one Code section. That belief is incorrect and, bluntly, a bit bizarre.

Regarding imposition of U.S. federal income tax, Internal Revenue Code sections 1 (26 U.S.C. § 1) and 11 (26 U.S.C. § 11) are examples of statutes that impose an income tax on "taxable income," which in turn is defined in section 63 (26 U.S.C. § 63).

For the requirement to file Federal income tax returns, see 26 U.S.C. § 6012.

For the general rule on the time prescribed for filing a federal income tax return for an individual, see subsection (a) of 26 U.S.C. § 6072 (generally, April 15th following the close of the tax year). See also 26 U.S.C. § 7502 and 26 U.S.C. § 7503.

For the general rule on the time prescribed for filing a federal income tax return for a corporation, see subsection (b) of 26 U.S.C. § 6072 (for a calendar year corporation, March 15th following the close of the tax year). See also 26 U.S.C. § 7502 and 26 U.S.C. § 7503.

For the duty to pay the tax at the time prescribed for filing the related tax return, see 26 U.S.C. § 6151. In citing this particular Code section, a unanimous United States Supreme Court stated, on February 25, 1992: "The Internal Revenue Code ties the duty to pay federal income taxes to the duty to make an income tax return." Holywell Corp. v. Smith, 503 U.S. 47 (1992), at [48].

For civil penalties for failure to timely file tax returns, see 26 U.S.C. § 6651(a)(1).

For civil penalties for failure to timely pay taxes, see 26 U.S.C. § 6651(a)(2).

For criminal penalties for failure to timely file tax returns or pay taxes, see 26 U.S.C. § 7203.

When does a U.S. federal income tax liability arise? (tax liability is created without assessment)[edit]

For bankruptcy law purposes[edit]

The Internal Revenue Service has advised its own attorneys that for the purpose of determining whether a given tax is pre-petition or post-petition in a bankruptcy case, the federal income tax liability arises at the close of the tax year if the bankruptcy case is in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, or Tenth Circuits. The IRS says that in the Eighth, Ninth, and Eleventh Circuits, case law provides for a "pro-rata" allocation, based on the number of days during the tax year before and after the time of the commencement of the case (see In re L.J. O'Neil Shoe Co., 64 F.3d 1146 (8th Cir. 1995); In re Pacific-Atlantic Trading Co., 64 F.3d 1292 (9th Cir. 1995); and In re Hillsborough Holdings Corp., 116 F.3d 1391 (11th Cir. 1997)). See "Memorandum for District Counsel, Gulf Coast District," number 199907016, Dec. 22, 1998 (release date Feb. 19, 1999), Kathryn A. Zuba, Chief, Branch 2 (General Litigation), Office of Chief Counsel, Internal Revenue Service, U.S. Dep't of the Treasury, Washington, D.C. For a special rule in chapter 13 bankruptcies, see In re Ripley, 926 F.2d 440 (5th Cir. 1991), cited in the IRS memorandum.

Many courts considering the point have ruled or otherwise indicated that in a federal bankruptcy case, assessment is not a pre-requisite to federal tax liability. See, e.g., In re Serignese, 214 F. Supp. 917 (D. Conn. 1963), aff'd per curiam sub nom. Goring v. United States, 330 F.2d 960 (2d Cir. 1964); In re Saxe, 14 B.R. 161 (Bankr. S.D.N.Y. 1981); In re Hatchett, 31 B.R. 833 (Bankr. E.D. Va. 1983); United States v. Craddock (In re Craddock), 184 B.R. 974 (D. Colo. 1995); Goldston v. United States (In re Goldston), 104 F.3d 1198 (10th Cir. 1997); Faulkner v. Kornman (In re The Heritage Organization, L.L.C.), case no. 04-35574-BJH-11, adv. no. 06-3377-BJH, Bankr. N.D. Tex. (Dec. 12, 2008).

There is at least one court case to the contrary: In re Flanigan's Enterprises, Inc., 75 B.R. 446 (S.D. Fla. 1987) (Flanigan; "unassessed tax cannot be collected by filing a proof of claim or otherwise"), vacated as moot, 117 B.R. 724 (Bankr. S.D. Fla. 1988). The Flanigan case is expressly critiqued in In re White, 168 B.R. 825, n.7 (Bankr. D. Conn. 1994). See also Schueler v. Rayjas Enterprises, Inc., 847 F. Supp. 1147 (S.D.N.Y. 1994) (indicating that Flanigan was overrruled by Congress in a 1994 amendment to 11 U.S.C. sec. 1129(a)(9)(C)).

For Federal criminal tax law and other purposes[edit]

For the duty to pay the tax at the time prescribed for filing the related tax return, see 26 U.S.C. § 6151. In citing this particular Code section, a unanimous United States Supreme Court stated, on February 25, 1992: "The Internal Revenue Code ties the duty to pay federal income taxes to the duty to make an income tax return." Holywell Corp. v. Smith, 503 U.S. 47 (1992), at [49].

From Internal Revenue Code section 6151:

(a) 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).

--from 26 USC section 6151(a) (bolding added).

The argument that no tax is owed unless the tax is first officially assessed by the IRS was specifically rejected by the United States Court of Appeals for the Second Circuit, which cited section 6151(a), in United States v. Ellett, 527 F.3d 38, 2008-1 U.S. Tax Cas. (CCH) paragr. 50,362 (2d Cir. 2008) (per curiam), at [50], citing United States v. Daniel, 956 F.2d 540, 542 (6th Cir. 1992), at [51]; United States v. Hogan, 861 F.2d 312, 315-16 (1st Cir. 1988), at [52]; and United States v. Dack, 747 F.2d 1172, 1174-75 (7th Cir. 1984) (per curiam) (distinguishing and limiting a contrary statement by the Court Appeals for the Seventh Circuit, in United States v. England, 347 F.2d 425 (7th Cir. 1965), to the effect that an assessment was required), at [53]. See also United States v. Voorhies, 658 F.2d 710 (9th Cir. 1981) and United States v. McLain, 646 F.3d 599 (8th Cir. 2011). See also dicta in United States v. Silkman, 156 F.3d 833 (8th Cir. 1998).

Under section 6501(a) of the Internal Revenue Code, the government may file a lawsuit for collection of a federal tax within three years after the related tax return is filed, even if the tax has not been assessed. (Further, if the tax is assessed within three years after the time the related tax return is filed, the government generally has ten years from the assessment date to collect the tax by levy, or to file a lawsuit for collection; see section 6502).

Further: “taxes may be and often are collected without assessment…[and] in such a case, the tax, if legally due, cannot be recovered [by the taxpayer as a tax refund] merely because it had not been formally assessed.” Meyersdale Fuel Co. v. United States, 44 F.2d 437 (Ct. Cl. 1930).

See also Theodore D. Peyser, "Limitations Periods, Interest on Underpayments and Overpayments, and Mitigation," vol. 627 (4th ed. 2012), Bloomberg BNA, under "General Rules of §§ 6501(a) and 6502": " . . . the government cannot begin any court proceeding without assessment for the collection of tax after the expiration of the three-year period, although the IRS rarely institutes a collection suit before making an assessment." In other words, even without assessment, the government can begin such a proceeding if the three year period has not yet expired, but such actions without assessment are rare.

From Bull v. United States: Tax assessment has the force of a judgment[edit]

From the United States Supreme Court in Bull v. United States:

A tax is an exaction by the sovereign, and necessarily the sovereign has an enforcible claim against every one within the taxable class for the amount lawfully due from him. The statute prescribes the rule of taxation. Some machinery must be provided for applying the rule to the facts in each taxpayer's case, in order to ascertain the amount due. The chosen instrumentality for the purpose is an administrative agency whose action is called an assessment. The assessment may be a valuation of property subject to taxation which valuation is to be multiplied by the statutory rate to ascertain the amount of tax. Or it may include the calculation and fix the amount of tax payable, and assessments of federal estate and income taxes are of this type. Once the tax is assessed the taxpayer will owe the sovereign the amount when the date fixed by law for payment arrives. Default in meeting the obligation calls for some procedure whereby payment can be enforced. The statute might remit the Government to an action at law wherein the taxpayer could offer such defense as he had. A judgment against him might be collected by the levy of an execution. But taxes are the life-blood of government, and their prompt and certain availability an imperious need. Time out of mind, therefore, the sovereign has resorted to more drastic means of collection. The assessment is given the force of a judgment, and if the amount assessed is not paid when due, administrative officials may seize the debtor's property to satisfy the debt.
In recognition of the fact that erroneous determinations and assessments will inevitably occur, the statutes, in a spirit of fairness, invariably afford the taxpayer an opportunity at some stage to have mistakes rectified. Often an administrative hearing is afforded before the assessment becomes final; or administrative machinery is provided whereby an erroneous collection may be refunded; in some instances both administrative relief and redress by an action against the sovereign in one of its courts are permitted methods of restitution of excessive or illegal exaction. Thus the usual procedure for the recovery of debts is reversed in the field of taxation. Payment precedes defense, and the burden of proof, normally on the claimant, is shifted to the taxpayer. The assessment supersedes the pleading, proof and judgment necessary in an action at law, and has the force of such a judgment. The ordinary defendant stands in judgment only after a hearing. The taxpayer often is afforded his hearing after judgment and after payment, and his only redress for unjust administrative action is the right to claim restitution. But these reversals of the normal process of collecting a claim cannot obscure the fact that after all what is being accomplished is the recovery of a just debt owed the sovereign. If that which the sovereign retains was unjustly taken in violation of its own statute, the withholding is wrongful. Restitution is owed the taxpayer. Nevertheless he may be without a remedy. [ . . . .]

--from the United States Supreme Court decision in Bull v. United States, 295 U.S. 247, 259-260 (1935) (bolding added).

The "voluntary" U.S. federal income tax[edit]

When tax protesters argue that there is no legal obligation to file federal income tax returns or pay federal income tax based on the use of the word "voluntary" in some court decisions and other publications, the protesters are engaging in a fallacy sometimes called "whole word equivocation." Essentially, the government is using the word "voluntary" in one sense and the tax protesters are using the word "voluntary" in another sense and at the same time falsely claiming that the government is using the term the way the tax protesters are using it.

The tax protesters are arguing that the government is using the term "voluntary" as an adjective to mean: "acting or done of one's own free will without valuable consideration or legal obligation" (per Webster's New Collegiate Dictionary, p. 1312, G. & C. Merriam Co. (8th ed. 1976)) or "Acting or performed without external persuasion or compulsion" (The American Heritage Dictionary, p. 1355, Houghton Mifflin Co. (2nd ed. 1985)), or "Without legal obligation...." The American Heritage Dictionary, p. 1355, Houghton Mifflin Co. (2nd ed. 1985).

But that's not what the government means by "voluntary" in this situation.

Instead, the government is using the term in the sense of "proceeding from the will or from one's own choice or consent" (Webster's New Collegiate Dictionary, p. 1312, G. & C. Merriam Co. (8th ed. 1976)) or "done by design or intention" (Webster's New Collegiate Dictionary, p. 1312, G. & C. Merriam Co. (8th ed. 1976)) or "Acting one one's own initiative" (The American Heritage Dictionary, p. 1355, Houghton Mifflin Co. (2nd ed. 1985)).

Clearly, a person can consent to do something which he is also legally obligated to do. The term "voluntary" in the context of filing a federal income tax return and paying the tax means that the individual consents to doing what he is legally obligated to do: To file his tax return by the due date and to pay his tax by the due date. As one commentator has pointed out, this is consent in the same sense that many (but not all) motorists voluntarily drive within posted speed limits and voluntarily stop where a stop sign is posted -- even when there is no other traffic nearby, and even when no policeman is nearby.

The Beard test: A legally valid federal tax return[edit]

The Beard test for legal validity of a U.S. federal tax return:

1. There must be sufficient data to calculate tax liability;

2. The document must purport to be a return;

3. There must be an honest and reasonable attempt to satisfy the requirements of the tax law; and

4. The taxpayer must execute the return under penalties of perjury.

See Beard v. Commissioner, 82 T.C. 766 (1984), aff'd per curiam, 793 F.2d 139 (6th Cir. 1986).

From the U.S. Supreme Court:

Perfect accuracy or completeness is not necessary to rescue a return from nullity, if it purports to be a return, is sworn to as such (Lucas v. Pilliod Lumber Co., 281 U. S. 245), and evinces an honest and genuine endeavor to satisfy the law.

--from Zellerbach Paper Co. v. Helvering, 293 U.S. 172 (1934).

Material on the term "frivolous" and related terms[edit]

"Frivolous. of little value or importance; trifling; trivial [ . . . ] not properly serious or sensible; silly and light-minded; giddy". Webster’s New World Dictionary of the American Language, p. 560, World Publishing Co. (2d Coll. Ed. 1978).

"Frivolous. of little weight or importance [ . . . ] lacking in seriousness [ . . . ] irresponsibly self-indulgent". Webster’s New Collegiate Dictionary, p. 461, G. & C. Merriam Co. (8th Ed. 1976).

"Frivolous. Unworthy of serious attention; trivial [ . . .] inappropriately silly". American Heritage Dictionary, p. 535, Houghton Mifflin Co. (2d Coll. Ed. 1985).

"Gibberish. unintelligible or meaningless language [ . . . ] pretentious or needlessly obscure language." Webster’s New Collegiate Dictionary, p. 484, G. & C. Merriam Co. (8th Ed. 1976).

From Kahn v. United States:

Section 6702 does not define the terms "position" or “frivolous,” but whatever else is meant by the term “frivolous,” it is reasonable to conclude that a claim is frivolous when there is no argument on either the law or the facts to support it.

--Kahn v. United States, 753 F.2d 1208, 85-1 U.S. Tax Cas. (CCH) paragr. 9152 (3d Cir. 1985).

From Coleman v. Commissioner:

A petition to the Tax Court, or a tax return, is frivolous if it is contrary to established law and unsupported by a reasoned, colorable argument for change in the law. This is the standard applied under Fed. R. Civ. P. 11 for sanctions in civil litigation, and it is a standard we have used for the award of fees under 28 U.S.C. §1927 and the award of damages under Fed. R. App. P. 38.

--Coleman v. Commissioner, 791 F.2d 68, 86-1 U.S. Tax Cas. (CCH) paragr. 9401 (7th Cir. 1986).

Many courts will not give frivolous arguments the time of day:

We perceive no need to refute these arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit. The constitutionality of our income tax system — including the role played within that system by the Internal Revenue Service and the Tax Court — has long been established. We affirm the dismissal of Crain's spurious "petition" and the assessment of a penalty imposed by the Tax Court for instituting a frivolous proceeding [....]

---from Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984) (per curiam).

If one is genuinely seeking the truth, if he focuses on what is relevant, and if he confines himself to good sense and logic, then the number of serious arguments he can make on a given point is limited. However, if one is already committed to a position regardless of its truth, if he is willing to say anything, if he is willing to ignore relevance, good sense, and logic, and if he is simply looking for subjects and predicates to put together into sentences in ostensible support of a given point, then the number of frivolous arguments that he can make on that point is effectively limitless. When each frivolous argument is answered, there is always another, as long as there are words to be uttered. Such arguments are without number. Consequently, a Court that decides cases brought by persons willing to make frivolous arguments--such as “tax protesters” or “tax defiers”--would by definition never be finished with the task of answering those frivolous arguments.

---from Wnuck v. Commissioner, 136 T.C. 498, 501-502 (2011) (footnote omitted).

Frivolous tax returns[edit]

The United States Congress has enacted Internal Revenue Code section 6702 "in an effort to deter tax protesters from filing frivolous returns." Kahn v. United States, 753 F.2d 1208, 85-1 U.S. Tax Cas. (CCH) paragr. 9152 (3d Cir. 1985). The penalty is $500 for positions taken on or before March 15, 2007. For certain positions taken on or after March 16, 2007, the penalty amount has been increased to $5,000, to the extent applicable to positions officially identified by the Internal Revenue Service (on or after March 15, 2007) as being legally frivolous. See Notice 2010-33 (April 7, 2010), to be published in 2010-17 I.R.B. 1 (April 2010), Internal Revenue Service, U.S. Department of the Treasury, modifying and superseding IRS Notice 2008-14 (Jan. 14, 2008), 2008-4 I.R.B. 310 (Jan. 28, 2008), modifying and superseding IRS Notice 2007-30 (March 15, 2007), 2007-14 I.R.B. 883 (April 2, 2007). See 26 U.S.C. § 6702.

Frivolous arguments in the United States Tax Court[edit]

The Congress has enacted Internal Revenue Code section 6673 imposing civil monetary penalties for making frivolous arguments in proceedings before the United States Tax Court. The law provides that frivolous arguments may result in a penalty of up to $25,000. See 26 U.S.C. § 6673.

From a U.S. Tax Court decision in 1985:

Petitioner raised a number of tax protester-type arguments. This Court has addressed such arguments on many occasions and will not do so now. [ . . . ] None of these arguments are meritorious.
Recently, this Court has been faced with numerous cases, such as this one, which have been commenced without any legal justification but solely for the purpose of protesting the Federal tax laws. This Court has before it a large number of cases which desire careful consideration as speedily as possible. Cases of this sort needlessly disrupt our consideration of those genuine controversies. Moreover, these frivolous cases add to the case load of the Court, which has substantially increased. They increase the expenses of conducting this Court and the operations of the IRS, which expenses must eventually be borne by all of us.
Many citizens may dislike paying their fair share of taxes. The greatness of our nation, however, is in no small part due to the willingness of our citizens to participate honestly and fairly in our tax collection system which depends on self-assessment. Any citizen may resort to the courts whenever he in good faith and with a reasonable claim desires to challenge respondent's determination. That does not mean, however, that a citizen may resort to the courts merely to vent his anger and attempt symbolically to throw a wrench at the system.
When frivolous cases such as this are brought to court, there is a question as to whether damages should be awarded under section 6673 [ . . .]
We have decided to impose such damages in this case in the amount of $500 since this proceeding was instituted primarily for delay [ . . . ]

--from Crim v. Commissioner, 49 T.C.M. (CCH) 451, T.C. Memo. 1985-8 (1985), at [54]

Frivolous arguments in a United States District Court[edit]

In a non-criminal case in a United States district court, a litigant (or a litigant's attorney) who presents any pleading, written motion or other paper to the court is deemed to have certified that, to the best of the presenter's knowledge and belief, the legal contentions "are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law". Rule 11(b)(2), Federal Rules of Civil Procedure. Monetary civil penalties for violation of this rule may in some cases be imposed on the litigant or the attorney under Rule 11(c) of the Federal Rules of Civil Procedure.

Frivolous arguments in a United States Bankruptcy Court[edit]

A similar rule penalizing frivolous litigation applies in U.S. Bankruptcy Court. See Rule 9011(b)(2) and Rule 9011(c), Federal Rules of Bankruptcy Procedure.

Frivolous appeals: in general[edit]

Congress has enacted section 1912 of title 28 of the United States Code providing that in the United States Supreme Court and in the various courts of appeals where litigation by the losing party has caused damage to the prevailing party, the court may impose a requirement that the losing party pay the prevailing party for those damages. See 28 U.S.C. § 1912.

A person who raises a frivolous argument in a Federal appeals court may also be subject to monetary penalties under Rule 38 of the Federal Rules of Appellate Procedure.

Frivolous appeals of decisions of the United States Tax Court[edit]

The U.S. Supreme Court and the federal courts of appeals may impose penalties where the taxpayer's appeal of a U.S. Tax Court decision was "maintained primarily for delay" or where "the taxpayer's position in the appeal is frivolous or groundless." See 26 U.S.C. § 7482(c)(4).

From the Coleman decision[edit]

From the decision of the United States Court of Appeals for the Seventh Circuit in Coleman v. Commissioner (Frank H. Easterbrook, J.):

Some people believe with great fervor preposterous things that just happen to coincide with their self-interest. "Tax protesters" have convinced themselves that wages are not income, that only gold is money, that the Sixteenth Amendment is unconstitutional, and so on. These beliefs all lead--so tax protesters think--to the elimination of their obligation to pay taxes. The government may not prohibit the holding of these beliefs, but it may penalize people who act on them.
It is an important function of the legal system to induce compliance with rules that a minority firmly believes are misguided. Legal penalties change the balance of self-interest; those who believe taxes wicked or unauthorized must nonetheless pay. When the legal system depends on honest compliance as much as the income tax system does--and when disobedience is potentially rewarding to those affected by the rule--it is often necessary to impose steep penalties on those who refuse to comply.
[ . . . ]
The billingsgate in appellants' briefs is customary in cases of this nature. Coleman says that wages may not be taxed because they come from his person, a depreciating asset. The personal depreciation offsets the wage, leaving no net income. Coleman thinks that only net income may be taxed under the Sixteenth Amendment--net income as Coleman defines it, rather than as Congress does. Holder, who styles himself a "private citizen," insists that wages may not be taxed because the Sixteenth Amendment authorizes only excise taxes, and in Holder's world excises may be imposed only on "government granted privileges." Because Holder believes that he is exercising no special privileges, he thinks he may not be taxed. These are tired arguments.
[ . . . ]
Both Coleman and Holder also argue that the income tax is a taking, which abridges their right to earn income. Taxes indeed "take" income, but this is not the sense in which the constitution uses "takings." Article I, section 8, clause 1 of the constitution grants to Congress "Power To lay and collect Taxes". The power thus long predates the Sixteenth Amendment, which did no more than remove the apportionment requirement of Art. I. sec. 2, cl. 3 from taxes on "incomes, from whatever source derived". Although the government might try to achieve through special taxes what the Takings Clause of the Fifth Amendment forbids if done directly, the general tax levied by the Internal Revenue Code does not offend the Fifth Amendment. Brushaber, supra.
Coleman argues that the IRS had to prove the amount of his income; he needed to show nothing. The statute is otherwise. People must make an honest report of their income to the government. If they fail to do this, they must establish any inaccuracies in the Commissioner's reconstruction of their income. [ . . . ] His further argument that the Seventh Amendment requires a jury trial in the Tax Court is empty. Even in ordinary litigation, the Seventh Amendment does not require a jury trial when there are no facts in dispute, and Coleman put none in dispute. The Seventh Amendment at all events does not apply to civil litigation against the United States. McElrath v. United States, 102 U.S. 426, 440 (1880); see also Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 450-51 (1977). Our circuit has apparently never held squarely that there is no right to a jury trial in the Tax Court, but other circuits have held this, and we agree with them. E.g., Parker v. CIR, 724 F.2d 469, 472 (5th Cir. 1984); Funk v. CIR, 687 F.2d 264, 266 (8th Cir. 1982).
Both appellants challenge the penalties imposed on them, contending that "frivolous" is too vague a designation to support a penalty. This is a staple term of civil litigation, however, and we have sustained against constitutional challenge 28 U.S.C. §1927, which allows awards against counsel for "vexatious" conduct. In re TCI, Ltd., 769 F.2d 441, 449 (7th Cir. 1985). Statutes need not be unambiguous in every application to be constitutional. Many words acquire meaning through judicial and administrative construction over the years, and this evolutionary process is constitutional. E.g., CSC v. Letter Carriers, 413 U.S. 548 (1973); cf. Rose v. Locke, 423 U.S. 48 (1975). Courts have been imposing penalties for frivolous litigation for hundreds of years, cf. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67 (1980), and the ambiguities that lurk in "frivolous" (or any other word) in marginal cases do not prevent the imposition of penalties. Uncertainty is a fact of legal life. The "law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree." Nash v. United States, 229 U.S. 373, 377 (1913). "Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the law . . . law to make him take the risk." United States v. Wurzbach, 280 U.S. 396, 399 (1930). See also, e.g., United States v. Powell, 423 U.S. 87 (1975).
The purpose of 26 U.S.C. §§6673 and 6702 is to compel taxpayers to think and to conform their conduct to settled principles before they file returns and litigate. A petition to the Tax Court, or a tax return, is frivolous if it is contrary to established law and unsupported by a reasoned, colorable argument for change in the law. This is the standard applied under Fed. R. Civ. P. 11 for sanctions in civil litigation, and it is a standard we have used for the award of fees under 28 U.S.C. §1927 and the award of damages under Fed. R. App. P. 38. [ . . . ] The inquiry is objective. If a person should have known that his position is groundless, a court may and should impose sanctions. See Thornton v. Wahl, No. 85-2786 (7th Cir. Apr. 3, 1986), slip op. 5.
Things are otherwise under §§6673 and 6702, the appellants say; these statutes require not only a lack of objective support but also subjective bad faith. Coleman cites May v. CIR, 752 F.2d 1301 (8th Cir. 1985), for this proposition. As originally published May used a subjective test, although the court found that May himself acted in subjective bad faith. The court later revised the opinion, stating the inquiry as whether the taxpayer "knew or should have known" that the claim, return, or argument was groundless. 55 A.F.T.R. 2d 747, 751 (8th Cir. 1985). "Should have known" is an objective test. We used an objective test for penalties under the tax laws in Lovell v. United States, supra, and there is no reason to change that approach. Section 6673, for example, states alternative tests: whether the suit was "maintained . . . primarily for delay" or whether the position is "frivolous or groundless." The former is a subjective inquiry, the latter is objective; either will support a penalty. See also In re TCI, supra, 769 F.2d at 445 (subjective bad faith is important under §1927 only when the litigation is objectively colorable).
The purpose of §§6673 and 6702, like the purpose of Rules 11 and 38 and of §1927, is to induce litigants to conform their behavior to the governing rules regardless of their subjective beliefs. Groundless litigation diverts the time and energies of judges from more serious claims; it imposes needless costs on other litigants. Once the legal system has resolved a claim, judges and lawyers must move on to other things. They cannot endlessly rehear stale arguments. Both appellants say that the penalties stifle their right to petition for redress of grievances. But there is no constitutional right to bring frivolous suits, see Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). People who wish to express displeasure with taxes must choose other forums, and there are many available. Taxes are onerous, no doubt, and the size of the tax burden gives people reason to hope that they can escape payment. Self-interest calls forth obtuseness. An obtuse belief--even if sincerely held--is no refuge, no warrant for imposing delay on the legal system and costs on one's adversaries. The more costly obtuseness becomes, the less there will be.
The contentions in this case are objectively frivolous. They have been raised and rejected so often that this circuit now handles almost all similar cases by unpublished orders. The Tax Court and the IRS were entitled to impose sanctions. We, too, regularly impose sanctions in these cases. In Van Wormer this court awarded attorneys' fees as a sanction for similar claims, and the Supreme Court added $1,000 in damages. Our unpublished orders in cases of this sort regularly end with awards of double costs and attorneys' fees in favor of the government. Precisely because the substantive claims are so weak, and the opinions are therefore unpublished, litigants may be unaware of our practice. The routine use of sanctions does not deter unless people know what lies in store. [ . . .]
Because average awards of actual attorneys' fees in tax protest cases exceed $1,000, we choose to impose sanctions of $1,500 in lieu of attorneys' fees. Even $1,500 cannot cover the indirect costs of this litigation--including the costs that befall serious litigants, who must wait longer for their cases to receive judicial attention. The decision to name a penalty rather than invite proof of the government's actual attorneys' fees produces some imprecision, doubtless. Coleman's case is a little more complex than Holder's--Coleman's brief is 38 pages, the government's 31; Holder's brief is 10 pages, the government's 16. There should be no weeping over this imprecision, however. Coleman and Holder could have avoided the penalty, and other people should avoid it, by the most minimal concern for settled rules. They knew or should have known that their claims are frivolous, and they (rather than their adversary) must pay the cost of their self-indulgent litigation.
The judgments are affirmed, with double costs and $1,500 damages in each case.

--from Coleman v. Commissioner, 791 F.2d 68, 86-1 U.S. Tax Cas. (CCH) paragr. 9401 (7th Cir. 1986) (bolding added), at [55].

From a prominent attorney[edit]

From attorney Wesley Serra:

If someone comes up to me with 30 pages of schematics for what he claims is a perpetual motion machine, those 30 pages won't matter to me either. I'll ask him to demonstrate that it works. If it doesn't perpetually move, I don't care what's in the schematics.
If someone comes up to me with 30 pages of legal hogwash, I'm not going to take the time to analyze that either. I'll ask him to demonstrate that it works. If it fails in the real world, I don't care what's in the 30 pages of hogwash.
Saves a lot of time, that way.

--Wesley Serra, Dec. 8, 2014, at [56].

Some lessons about statutory law[edit]

About how and why complex, hard-to-understand statutes are written the way they are written:

Statutes are not designed to be entertaining, or emotionally powerful, or beautiful, or profound. Some writers, primarily adherents of the plain language school, have claimed that statutes' primary virtue is the same as that of a good deal of expository prose: clarity. But common sense demands rejection of that position. Because statutes are written to effect policy decisions, their main virtue is accuracy in the sense of precisely effecting the desired policy. If a statute is difficult to comprehend but accomplishes its purpose it is a success. If its meaning can be discerned instantaneously but its effect is the opposite of the one intended, it is a failure.

--Jack Stark, Teaching Statutory Law, 44 J. Legal Educ. 579, 583 (1994), as quoted in: Timothy R. Zinnecker, When Worlds Collide: Resolving Priority Disputes Between the IRS and the Article Nine Secured Creditor, 63 Tenn. L. Rev. 585, 586, n.5 (Spring 1996) (bolding added).

Many tax protesters like to spread the false statement that the Internal Revenue Code is not really "the law." This tax protester lie is based in part on the statement that the Internal Revenue Code as published as title 26 of the United States Code is what is known as "non-positive law." It is correct to say that title 26 itself is "non-positive law" - but that doesn't mean that the Internal Revenue Code is non-positive law. Further, the statement that something "is non-positive law" is not the same as the statement that something "is not the law."

Confused? Read on.

As explained below, the Internal Revenue Code of 1986 (the current Code) is POSITIVE LAW. The Code was affirmatively enacted by Congress. Every single original provision thereof and amendment thereto -- are published in the United States Statutes at Large (except for the newest Congressional Acts, to be published in the most recent as-yet-to-be published volume).

When an Act of Congress becomes law (generally, by being signed into law by the President, or by becoming law through Congressional override of a presidential veto, etc.), the actual physical document is sent to the National Archives and Records Administration. An official pamphlet of the text of the Act is published. This pamphlet is called a "slip law." This is the first step in the official publication of statutes.

Later, the Acts of Congress are published by the United States Government Printing Office in chronological order, in a book publication called the United States Statutes at Large. These kinds of publications are referred to as "session laws." This is the second step in the official publication of statutes.

The third step in the official publication of statutes is that some, but not all, of the text of an Act of Congress is codified (arranged by topic) in a separate publication called the "United States Code."

From time to time, Congress has also enacted other codes -- separately from the United States Code. Further, some portions of the United States Code -- certain "titles" -- have been specifically enacted as "positive law" by the Congress.

Certain other titles have not been specifically enacted as positive law. Instead, the texts of those titles are copied from Acts of Congress that have been enacted as positive law.

The Internal Revenue Code of 1939, like the Internal Revenue Code of 1954, was a Congressional enactment. Both the 1939 Code and the 1954 Code were therefore published in the United States Statutes at Large (volume 53 part 1, in the case of the 1939 Code).

The Internal Revenue Code of 1986 is the current Code, and is a set of statutes enacted by the U.S. Congress. Notice that I said "the Internal Revenue Code of 1986" and not "title 26, the Internal Revenue Code". It's confusing, but "Title 26, the Internal Revenue Code," is not positive law, and the "Internal Revenue Code of 1986" is positive law.

"How can this be?" you may ask. Well, read on.

According to the United States Statutes at Large (published by the United States Government Printing Office) the Internal Revenue Code of 1954, the predecessor to the current 1986 code, was enacted by the Eighty-Third Congress of the United States with the phrase "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled" and was "approved" (signed into law, in this case by then-President Dwight D. Eisenhower) at 9:45 A.M. on August 16, 1954. The 1954 Code was published as volume 68A of the United States Statutes at Large. Section 1(a)(1) of the enactment states: "The provisions of this Act set forth under the heading 'Internal Revenue Title' may be cited as the 'Internal Revenue Code of 1954'. Section 1(d) of the enactment is entitled "Enactment of Internal Revenue Title Into Law", and the text of the Code follows, beginning with the statutory Table of Contents. The enactment ends with the approval (enactment) notation on page 929 of volume 68A of the Statutes at Large.

All amendments to the 1954 Code (including the Tax Reform Act of 1986, which changed the name of the '54 Code to "Internal Revenue Code of 1986") have been Acts of Congress -- without a single exception. Every single Act of Congress is given both a public law number and a "statutes at large" volume and page number. EVERY SINGLE AMENDMENT TO THE 1954/1986 CODE WAS ENACTED BY CONGRESS, AND HAS BEEN PUBLISHED IN THE UNITED STATES STATUTES AT LARGE!!!!! Many tax protesters seem to be blissfully ignorant about this point.

In addition to "the Internal Revenue Code" as scattered through the various volumes of the United States Statutes at Large, there is a separate publication called "title 26 of the United States Code." The name of title 26 is also -- can you guess? -- the Internal Revenue Code.

The Title 26 version of the Internal Revenue Code is compiled by the Law Revision Counsel of the U.S. House of Representatives. The tax protesters try to confuse people on terminology. The fact that title 26 itself -- meaning the actual, physical U.S. Government Printing Office publication known as "title 26" -- is "non-positive law" does not change the fact that the Internal Revenue Code of 1939, the Internal Revenue Code of 1954 (and, as renamed, the Internal Revenue Code of 1986) as amended to this very day are POSITIVE LAW. All were enacted in the form of ACTS OF CONGRESS, and every single Code with EVERY SINGLE AMENDMENT has been published in the United States Statutes at Large (except for amendments made most recently, and those are published as "slip law" pamphlets until the Government Printing Office can issue the latest volume of the Statutes at Large).

Just as importantly, the actual TEXT of the physical publication known as "Title 26, Internal Revenue Code" (the non-positive law published by the U.S. Government Printing Office) AND the actual TEXT of "Internal Revenue Code of 1986 as amended" (the positive law as enacted by Congress and published in the Statutes at Large, also published by the same U.S. Government Printing Office) ARE PRESUMED in COURT to be identical. If YOU THE TAXPAYER believe that there is some discrepancy between the text of the Internal Revenue Code published as title 26 and the Internal Revenue Code published and scattered through the volumes of the United States Statutes at Large -- you are out of luck -- UNLESS YOU THE TAXPAYER can show the court where there is an actual, physical difference between the two texts. The burden is on you, the taxpayer.

It gets worse.

Even if you the taxpayer could somehow locate an actual difference between the text as published as title 26 and the text as published in the Statutes at Large, the court is legally bound to follow THE LAW, which is the version in the United States Statutes at Large.

Consider the following from the case of Ryan v. Bilby. The taxpayer, Dennis Ryan, been convicted of failure to file tax returns, and had sued the district court judge, the prosecutor, the taxpayer's own attorney, two magistrates and the IRS agents in the case. Ryan's lawsuit was thrown out. He then appealed to the United States Court of Appeals for the Ninth Circuit, which ruled against Ryan and stated:

Ryan's primary contention on appeal is that, as Congress has never enacted Title 26 of the United States Code into positive law, the defendants violated his constitutional rights by attempting to enforce it. [footnote omitted] Thus, he concludes, the district court erred by dismissing his suit. This contention is frivolous.
Congress's failure to enact a title [of the United States Code] into positive law has only evidentiary significance and does not render the underlying enactment [as published in the Statutes at Large] 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.

--from Ryan v. Bilby, 764 F.2d 1325, 85-2 U.S. Tax Cas. (CCH) paragr. 9524 (9th Cir. 1985). The Court of Appeals imposed penalties on Mr. Ryan under 28 U.S.C. section 1912, in the form of ordering him to pay double costs, for filing a frivolous appeal.

Similarly, in United States v. McLain, the U.S. District Court for the District of Minnesota stated:

[The taxpayer, Frances] McLain also contends that the Internal Revenue Code of 1954 is prima facie evidence of the law on which Title 26 is based. Docket No. 163 at 4. McLain is incorrect. The Internal Revenue Code of 1954 was enacted into positive law in the form of a separate code and, as amended, is the authoritative statement of the law. 1 U.S.C. § 204(a) & note; ch. 736, 68A Stat. 3, 3 (1954); Pub. L. No. 99-514, 100 Stat. 2085, 2095 (1986) (stating that the Internal Revenue Title enacted in 1954, as amended, may be cited as the Internal Revenue Code of 1986); Tax Analysts v. IRS, 214 F.3d 179, 182 n.1 (D.C. Cir. 2000). Moreover, while McLain is technically correct in arguing that Title 26 is merely prima facie evidence of the law, the distinction is largely academic because the relevant sections of Title 26 are identical to the relevant sections of the Internal Revenue Code.

---United States v. McLain, 597 F. Supp. 2d 987, 2009-1 U.S. Tax Cas. (CCH) paragr. 50,256, fn. 6 (D. Minn. 2009) (italics added), at [57]

Now for the kicker.

What tax protesters also do not grasp is that many lawyers, government agencies, and even the courts themselves DO NOT ALWAYS USE THE NON-POSITIVE LAW publication ("title 26" as published by the Government Printing Office). We use commercially, privately published versions of the Internal Revenue Code -- as published by Thomson/West Publishing, CCH, and other private publishers. Additionally, many internet users refer to the Cornell University Law School web site for the text of the United States Code (including the text of title 26), the Cornell University Law School "version" is not an "official" publication of the law, either.

The VAST MAJORITY OF STATUTORY TEXTS are physically published by PRIVATE PUBLISHERS in the United States, and have been so since the late 1800s! NOBODY CARES THAT "TITLE 26" AS PUBLISHED BY THE GOVERNMENT PRINTING OFFICE IS NON-POSITIVE LAW, when most people don't use (and are not required to use) a government-published "official" copy anyway!!

Tax protesters impotently talk themselves in circles about "positive law" and "non-positive law" without ever connecting with this basic truth: Whether a particular verbatim physical reprint happens to be positive law or non-positive law is relatively unimportant from a legal standpoint. A verbatim reprint of the actual enactment -- even if re-printed on the back of a restaurant menu -- is still the law.

From Lanier v. Wachovia Bank:

Plaintiff's argument that the Internal Revenue Code is not controlling law has similarly been rejected by the courts as without merit. Plaintiff argues that "title 26 has never been enacted as positive law." (Pl.'s Surreply at 1 (emphasis added).) Plaintiff misunderstands that there is a difference between Title 26 of the United States Code and the individual positive law statute entitled "the Internal Revenue Code of 1986":
The Internal Revenue Code of 1986 is a statute enacted into positive law by congress, while the United States Code, including Title 26, is a statutory compilation by subject of enacted statutes. 1 U.S.C.A. § 204(a); 1 U.S.C.A. § 204 note (the note first lists United States Code Titles enacted as positive law, without including Title 26; however, the note follows up with a special comment on Title 26 stating that the Internal Revenue Code has been separately enacted into positive law by Congress, and indicating that the sections of Title 26 of the United States Code "are identical to the sections of the Internal Revenue Code"). Because the Internal Revenue Code and Title 26 of the United States Code are identical, even though they are distinct, for all practical purposes, Title 26 is positive law.

--from Lanier v. Wachovia Bank, memorandum opinion, March 24, 2010, docket no. 2:09-cv-4566-WY (E.D. Pa. 2010), citing quoted material from O'Boyle v. United States, No. 07-10006-MC, 2007 WL 2113583, at *1 (S.D. Fla. July 23, 2007) (footnote omitted).

In summary, let's review:

1. "Title 26 is non-positive law." -- A CORRECT STATEMENT.
2. "Title 26 is not the law." -- WRONG. Although title 26 is non-positive law, title 26 is still prima facie THE LAW.
3. "The Internal Revenue Code is not a statute enacted by Congress." --WRONG. See below.
4. "The Internal Revenue Code is not the law." -- WRONG. See below.
5. "The Internal Revenue Code is not positive law enacted by Congress." -- WRONG. See below.

In the above list (items 1 through 5), where you see "Internal Revenue Code" without the qualifying phrase "title 26," the phrase "Internal Revenue Code" is used to refer to the Internal Revenue Code of 1954 enacted on August 16, 1954 -- and as amended by subsequent Acts of Congress including the 1986 act which changed the name of the Code to Internal Revenue Code of 1986. All such materials are positive law, all such materials were enacted by Congress, and all such materials are published in the United States Statutes of Large, a U.S. Government Printing Office publication which is legally conclusive as to what the text of the statute is.

As I said in another web site on June 23, 2009:

In all the years I have been studying tax protesters, I have never seen a court case where a protester actually went into court with the actual, physical bound volumes of non-positive law known as the "United States Code" (with the specific volume or volumes known as "title 26, the Internal Revenue Code") and then set them on a desk beside the actual, physical bound volumes of POSITIVE law known as the United States Statutes at Large, and then say:
"Your honor, we found a discrepancy here in section blah blah blah. The non-positive version of the Code says xxx, Your Honor, but the positive version of the Code says yyy."
Why is that? It's because the tax protesters don't understand that this is basically what you would be doing if you were arguing that "title 26, the Internal Revenue Code", is not the law.
Again, the protesters are confusing the term "non-positive law" with the phrase "not the law." NON-POSITIVE LAW IS STILL THE LAW.
And, as I pointed out earlier, most legal scholars do not even use the actual physical books known as the United States Statutes at Large (positive law) or the United States Code (non-positive law).
What most legal scholars use today are ON LINE versions -- many published by non-governmental entities. Some of the most popular on line sources are Cornell University Law School, Lexis, Westlaw, CCH, and so on.
All the tax protesters' jabbering and gibberish also misses a crucial point: The whole reason that the law designates the Statutes at Large as POSITIVE law is that 300 million Americans simply cannot go back and look at each and every actual, physical document, each and every actual "paper" Act of Congress, that is signed into law by the President, etc., each time somebody wants an "authoritative" copy of a statute.
The actual, physical paper document that the President "signs into law" is kept in a safe place by the National Archives and Records Administration. That's why we have the United States Statutes at Large published by the U.S. Government Printing Office -- so that law libraries all over the country can have an actual, physical set of paper, bound volumes that are legally conclusive as to what the statute says.
And the reason why "title 26" is not yet "positive" law is that the Congress has not bothered to enact THAT PARTICULAR COPY (in the United States Code) as "positive law."
Again, the point that the protesters miss is that the "Internal Revenue Code of 1986, as amended" itself IS POSITIVE LAW -- in the United States Statutes at Large.
And, if the Archivist of the United States wants to do so, he or she can go through the official files of the National Archives and Records Administration and probably find every single one of the actual, physical "paper copy" Acts of Congress making up the Code (going back to August 16, 1954 in the case of the current Code).

--from [58]

A possible discrepancy (albeit an apparently insignificant one) between the wording in the Statutes at Large and the wording in some editions of the U.S. Code with respect to a provision of the Internal Revenue Code (specifically, the words "any papers" in the first sentence of section 6104(a)(1)(A)) is described by the U.S. Court of Appeals for the District of Columbia in the case of Tax Analysts v. Internal Revenue Serv., 214 F.3d 179 (D.C. Cir. 2000), in footnote 1, at [59]. For more on the effect of a difference between the U.S. Statutes at Large and the U.S. Code, see Stephan v. United States, 319 U.S. 423 (1943) (per curiam) (not a tax case), at [60].

Jury nullification[edit]

On the sometimes misunderstood concept of "jury nullification" in the United States, a primary misconception is that a party in a case has a right to argue the law directly to the jury. This is based in part on misreadings of old legal materials. But, let's start with the U.S. Supreme Court's statements in 1895:

But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court.
[ . . . ]
We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence. Upon the court [the judge] rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared [by the judge] to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions.
[ . . . ]
The trial was thus conducted upon the theory that it was the duty of the court to expound the law and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.
[ . . . ]
Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves.

--Sparf and Hansen v. United States, 156 U.S. 51 (1895) (bolding added), at [61].

Holdings: A trial court judge should not inform the jury that the jury has the power to acquit the defendants even if the defendants are clearly guilty, and the trial court judge should not permit the lawyers for the parties to make such an argument to the jury. See United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970), at [62].

Holding: A defendant in a criminal case is not entitled to have the judge instruct the jury that "the members of the jury have an inherent right to disregard the instructions of the court and the evidence presented and return a verdict of acquittal" if the jury finds that the defendant "was not blameworthy in the sense that he has not shocked the community conscience". United States v. Wiley, 503 F.2d 106 (8th Cir. 1974), at [63].

A federal district court does not err in refusing to instruct the jury that the jury could judge the law as well as the facts. United States v. Dack, 747 F.2d 1172, 1176, n.5 (7th Cir. 1984) (per curiam), at [64].

In short, in the United States:

1. A jury verdict of acquittal in a criminal case cannot be reversed, even if the jury clearly refused to follow the law.

2. The jury does not, however, have a right to read the statutes, cases, etc., themselves during the trial; the jury is given only the jury instructions from the judge.

3. Neither the prosecution nor the defendant in a criminal case has the right to "argue the law to the jury" or to provide the jury with copies of statutes, cases, etc.

4. Neither party in a case has the right to have the jury instructed during the trial about the concept of jury nullification.

5. The jury itself does not have the right to obtain an instruction during the trial about the concept of jury nullification.

History of changes in status of the United States Tax Court[edit]

Adapted in part from material I wrote at Quatloos:

Part of the confusion over the status of the U.S. Tax Court relates to the fact that the Court's predecessor, the Board of Tax Appeals, was considered "an executive or administrative board, upon the decision of which the parties are given an opportunity to base a petition for review to the courts after the administrative inquiry of the Board has been had and decided." See Old Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929). The Board was established by Congress in the Revenue Act of 1924, sec. 900, Ch. 234, 43 Stat. 253, 336 et seq. (June 2, 1924). The Board was initially established as an "independent agency in the executive branch of the government." Revenue Act of 1924, sec. 900(k), Ch. 234, 43 Stat. 253, 338 (June 2, 1924).

Another source of confusion for dimwitted tax protesters: The Board was housed originally housed in an IRS building.

But, as explained below, today's United States Tax Court is not the Board of Tax Appeals.

In 1942, Congress passed the Revenue Act of 1942, renaming the Board as the "Tax Court of the United States". Revenue Act of 1942, sec. 504(a), Pub. L. 753, Ch. 619, 56 Stat. 798, 957 (Oct. 21, 1942).

In 1969, the Congress, in sections 951 through 962 in Title IX of the Tax Reform Act of 1969, Public Law No. 91-172, 83 Stat. 487, 730-736 (Dec. 30, 1969), established the "United States Tax Court" as a continuation of the "Tax Court of the United States".

As noted above, in 1991, the U.S. Supreme Court in Freytag v. Commissioner stated that the current United States Tax Court is an "Article I legislative court" that "exercises a portion of the judicial power of the United States." Freytag v. Commissioner, 501 U.S. 868, 891 (1991). Today's Tax Court does not appear to be an "administrative" board like the Board of Tax Appeals was. However, see the Kuretski case, below.

From the U.S. Supreme Court:

The text of the Clause [the Appointments Clause, Art. II, sec. 2, clause 2 of the U.S. Constitution] does not limit the "Courts of Law" to those courts established under Article III of the Constitution.
[ . . . ]
Having concluded that an Article I court, which exercises judicial power, can be a "Cour[t] of Law" within the meaning of the Appointments Clause, we now examine the Tax Court's functions to define its constitutional status and its role in the constitutional scheme. See Williams, 289 U. S., at 563-567. The Tax Court exercises judicial, rather than executive, legislative, or administrative, power. It was established by Congress to interpret and apply the Internal Revenue Code in disputes between taxpayers and the Government. By resolving these disputes, the court exercises a portion of the judicial power of the United States.
The Tax Court exercises judicial power to the exclusion of any other function. It is neither advocate nor rulemaker. As an adjudicative body, it construes statutes passed by Congress and regulations promulgated by the Internal Revenue Service. It does not make political decisions.
The Tax Court's function and role in the federal judicial scheme closely resemble those of the federal district courts, which indisputably are "Courts of Law." Furthermore, the Tax Court exercises its judicial power in much the same way as the federal district courts exercise theirs......
[ . . . ]
The Tax Court remains independent of the Executive and Legislative Branches. Its decisions are not subject to review by either the Congress or the President. Nor has Congress made Tax Court decisions subject to review in the federal district courts. Rather, like the judgments of the district courts, the decisions of the Tax Court are appealable only to the regional United States courts of appeals, with ultimate review in this Court [the U.S. Supreme Court]. The courts of appeals, moreover, review those decisions "in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury."

--from Freytag v. Commissioner, 501 U.S. 868 (1991).

The Kuretski case[edit]

In 2010, Peter and Kathleen Kuretski filed a petition in the U.S. Tax Court in connection with certain collection actions against them by the Internal Revenue Service. The case is case number 018545-10L, and the Tax Court rendered a decision against the Kuretskis on September 11, 2012; see T.C. Memo 2012-262.

After the decision was rendered, the Kuretskis asked the Tax Court to consider a new theory: whether section 7443(f) of the Internal Revenue Code, which gives the President the power to remove Tax Court judges for certain limited causes, was unconstitutional under Article III of the U.S. Constitution. On March 4, 2013, the Tax Court declined to address this argument, and the Court denied the Kuretski motion to vacate its earlier decision.

The Kuretskis appealed to the U.S. Court of Appeals for the District of Columbia Circuit, in case number 13-1090. On June 20, 2014, the United States Court of Appeals ruled that section 7443(f) of the Internal Revenue Code, which gives the President the power to remove Tax Court judges for certain limited causes, does not infringe on the constitutional separation of powers. The Court of Appeals distinguished the Supreme Court's holding in the Freytag case from the arguments raised by Peter and Kathleen Kuretski in this case. For purposes of the section 7443(f) analysis, the Court of Appeals concluded that while the Tax Court is an article I legislative court per the Freytag decision, the Tax Court judges do not exercise "legislative power" under Article I of the Constitution. See Kuretski v. Commissioner, case no. 13-1090, Opinion of the Court, pages 22-23 (June 20, 2014). The Court of Appeals also noted that the Tax Court does not exercise the judicial power of the United States under Article III. See page 23 of the June 20, 2014 opinion. The Court of Appeals concluded that the Tax Court exercises its authority as part of the Executive Branch, but concluded that this opinion "is fully consistent with Freytag." (See p. 23 of the June 20, 2014 opinion). On November 26, 2014, Peter and Kathleen Kuretski filed a petition for a writ of certiorari with the U.S. Supreme Court (case no. 14-622), and are waiting to hear whether the Supreme Court will hear the case.

As it currently stands, the Kuretski case seems to stand for the proposition that the U.S. Tax Court is not an Article III court, but is instead an Article I legislative court that, however, does not exercise Article I legislative power, but instead exercises Article II executive branch power.

Title 18 of the United States Code[edit]

Some people have argued that they cannot properly be convicted of various federal crimes under Title 18 of the United States Code because, supposedly, that Title has not been enacted as "positive law."

That is incorrect.

Title 18, "Crimes and Criminal Procedure", was enacted in the Act of June 25, 1948 (House of Representatives Bill 3190, H.R. 3190), chapter 645, Public Law 772, 62 Stat. 683, signed into law at 12:23 p.m. EDT, on June 25, 1948. The Act is published in the United States Statutes at Large, in volume 62, from page 683 through page 868. Publication of the Act in the Statutes at Large is conclusive proof that the Act was indeed enacted:

The Archivist of the United States shall cause to be compiled, edited, indexed, and published, the United States Statutes at Large, which shall contain all the laws and concurrent resolutions enacted during each regular session of Congress..... The United States Statutes at Large shall be legal evidence of laws, concurrent resolutions, treaties, international agreements other than treaties, proclamations by the President, and proposed or ratified amendments to the Constitution of the United States therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.

--excerpt from 1 U.S.C. section 112 (bolding added).

Retroactive changes in tax law; tax law is not a contract[edit]

"Tax legislation is not a promise, and a taxpayer has no vested right in the Internal Revenue Code." -- from the U.S. Supreme Court decision in United States v. Carlton, 512 U.S. 26 (1994) (bolding added), at [65]. In the Carlton case, the Supreme Court ruled that a statute making a retroactive amendment to Internal Revenue Code section 2057 (limiting the availability of a deduction for the proceeds of sales of stock to employee stock-ownership plans) does not violate the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

The Supreme Court has upheld retroactive tax legislation against a due process challenge. See United States v. Hemme, 476 U.S. 558 (1986), at [66]; United States v. Darusmont, 449 U.S. 292 (1981), at [67]; United States v. Hudson, 299 U.S. 498 (1937), at [68]; Milliken v. United States, 283 U.S. 15 (1931), at [69]; Cooper v. United States, 280 U.S. 409 (1930), at [70].

See also McLaughlin v. United States, 832 F.2d 986 (7th Cir. 1987) (per curiam), at [71] ("The notion that the federal income tax is contractual or otherwise consensual in nature is not only utterly without foundation but, despite [Dan] McLaughlin's protestations to the contrary, has been repeatedly rejected by the courts...")

More regarding retroactive tax statutes:

Taxation is neither a penalty imposed on the taxpayer nor a liability which he assumes by contract. It is but a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Since no citizen enjoys immunity from that burden, its retroactive imposition does not necessarily infringe due process [ . . . ]

---from the U.S. Supreme Court decision in Welch v. Henry, 305 U.S. 134 (1938) (bolding added), at [72].

However, Congress has provided taxpayers with some limited statutory protection from the effects of retroactively applicable federal tax laws. Internal Revenue Code section 7805 provides (in part):

(b) Retroactivity of regulations
(1) In general
Except as otherwise provided in this subsection, no temporary, proposed, or final regulation relating to the internal revenue laws shall apply to any taxable period ending before the earliest of the following dates:
(A) The date on which such regulation is filed with the Federal Register.
(B) In the case of any final regulation, the date on which any proposed or temporary regulation to which such final regulation relates was filed with the Federal Register.
(C) The date on which any notice substantially describing the expected contents of any temporary, proposed, or final regulation is issued to the public.
(2) Exception for promptly issued regulations
Paragraph (1) shall not apply to regulations filed or issued within 18 months of the date of the enactment of the statutory provision to which the regulation relates.
(3) Prevention of abuse
The Secretary may provide that any regulation may take effect or apply retroactively to prevent abuse.
(4) Correction of procedural defects
The Secretary may provide that any regulation may apply retroactively to correct a procedural defect in the issuance of any prior regulation.
(5) Internal regulations
The limitation of paragraph (1) shall not apply to any regulation relating to internal Treasury Department policies, practices, or procedures.
(6) Congressional authorization
The limitation of paragraph (1) may be superseded by a legislative grant from Congress authorizing the Secretary to prescribe the effective date with respect to any regulation.

--from Internal Revenue Code section 7805(b).

U.S. Federal tax law complexity[edit]

Above all are the various provisions of the United States Constitution dealing with taxes.

Under the Constitution are statutes and treaties.

Under the statutes and treaties are the U.S. Treasury Regulations.

The statute known as the Internal Revenue Code of 1954 was signed into law by President Dwight D. Eisenhower on August 16, 1954. In 1986, the name of the Code was changed to "Internal Revenue Code of 1986". After August 16, 1954, and up through July 25, 2013, the Code has been amended by approximately 647 Acts of Congress. The first Act amending the 1954 Code came just 14 days after the '54 Code was signed -- on August 30, 1954, with the Atomic Energy Act of 1954, Public Law 703 of the 83rd Congress.

The January 10, 2014 version of the CCH deskbook copy of the Internal Revenue Code -- showing almost all the changes in the text of the Code since August 16, 1954 plus excerpts from the texts of various non-code statutory provisions -- runs to about 5,000 pages of thin, onion-skin paper with the text shown in small print. A conservative estimate of the extent of this text would be well over 3,000,000 words.

When people refer to the size of the "tax code", they are often including not only the Internal Revenue Code and the non-code statutes, but also the thousands of pages of U.S. Treasury Regulations published in the Federal Register and codified in the Code of Federal Regulations. As of the year 2008, the final signatory authority for the approval of Treasury Regulations rested not with the Commissioner of Internal Revenue (who heads the Internal Revenue Service) but instead with the Assistant Secretary of the Treasury (Tax Policy). So, Treasury Regulations, which are often called the "IRS regulations," technically are not promulgated by the IRS itself.

Also, there are tax treaties (agreements with other countries) to which the United States is a party.

Then, there are the rules of legal precedent found in court decisions of the U.S. Tax Court, the Court of Federal Claims, the U.S. Bankruptcy Courts, the U.S. District Courts, the U.S. Courts of Appeal, and the U.S. Supreme Court.

Of lesser weight than the Constitution, the statutes, the treaties and the regulations are the various Internal Revenue Service pronouncements such as Revenue Rulings, Revenue Procedures, Notices, Announcements, and so on.

Certain materials are not, strictly speaking, tax law, but are of interest to tax practitioners. These include the IRS forms, instructions, and publications. And, there are internal IRS documents such as Technical Advice Memoranda, Chief Counsel Notices, Program Manager Advices, Associate Memoranda, Field Legal Advices, Litigation Guideline Memoranda, Actions on Decisions, News Releases, Fact Sheets, Coordinated Issue Papers, Appeals Settlement Guidelines, Audit Technique Guides, Large and Midsized Business Commissioner's and Industry Director's Directives, and the Internal Revenue Manual.

From Erwin N. Griswold:

We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death: it doesn't get any worse every time Congress meets."

--Erwin N. Griswold, former Solicitor General of the United States, former Dean of Harvard Law School.

From the late Martin D. Ginsburg:

"There is an ancient belief that the gods love the obscure and hate the obvious. Without benefit of divinity, modern men of similar persuasion draft provisions of the Internal Revenue Code."

From the late Professor Boris Bittker:

"....the Internal Revenue Code is not what it used to be -- and never was."

--Boris I. Bittker, "Constitutional Limits on the Taxing Power of the Federal Government," 41 Tax Lawyer 3, 11, Amer. Bar Ass'n (1987-88).

From the United States Court of Appeals for the Fifth Circuit:

The Commissioner [of Internal Revenue] disallowed the Laneys' deductions because they exceeded Mrs. Laney's $1000 contribution to capital in the limited partnership. In order to understand his action, we must roll up our sleeves and delve into the latticework of the Internal Revenue Code of 1954, however much we might prefer not to.

---from Laney v. Commissioner of Internal Revenue, 674 F.2d 342 (5th Cir. 1982).

From Judge Learned Hand:

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 [the federal income tax statutes] 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.

from the article by Learned Hand, Thomas Walter Swan, 57 Yale Law Journal No. 2, 167, 169 (December 1947).

More quotes:

"Don't tax you, don't tax me, tax that fellow behind the tree." --Senator Russell B. Long

"If Patrick Henry thought that taxation without representation was bad, he should see how bad it is with representation." --Farmer's Almanac, 1966.

Criminal law provisions of the Internal Revenue Code[edit]

Criminal law provisions of the Internal Revenue Code include:

sections 5601 through 5606;
5661 through 5662;
5671 through 5672;
5674;
5681 through 5683;
5685 through 5688;
5690;
5871;
7201 through 7344;
9012;
9042.

Public Salary Tax Act of 1939 and Internal Revenue Code section 6331: IRS levy and the "federal worker" argument[edit]

Adapted from something I wrote at Quatloos:

Tax protesters sometimes argue (incorrectly) that section 6331(a), empowering the Internal Revenue Service to administratively levy (that is, to seize or distrain) the assets of a taxpayer, applies only to the assets of "federal workers." The genesis of all this argument about the "federal worker" language in section 6331(a) is a case -- decided over ninety years ago -- that had nothing to do with taxation.

Back in 1912, Congress enacted a law providing for a U.S. District Court in what was then the U.S. territory of the Canal Zone (the Panama Canal Zone). The law provided for a federal judge -- and a salary for that federal judge.

At some point, the judge was provided with living quarters owned by the U.S. government. An officer called the Auditor of the Canal Zone decided -- apparently on his own, as it turns out -- that he had the legal duty or right to withhold, from the judge’s pay checks, an amount to cover the rent for the government-owned living quarters provided to the judge.

The Auditor's action raised some eyebrows. In 1915, the Secretary of War (now, we would say the Secretary of Defense) asked for a legal opinion from the Attorney General as to whether the Auditor was legally entitled to do this.

The Attorney General rendered a legal opinion that the Auditor was not authorized to withhold from the judge’s pay unless a law allowed the withholding. Essentially, the Auditor was engaging in a “setoff” (or “offset”) – offsetting the amount the Auditor claimed was due by the judge to the U.S. government for rent against the salary due by the government to the judge. The Attorney General found no law allowing that offset.

The Auditor was not satisfied with the Attorney General’s opinion, and apparently continued to make the offsets for the rent.

The judge understandably filed a lawsuit to compel the Auditor to stop withholding the rent from the judge’s paychecks.

The Auditor lost the lawsuit -- both at the trial court, and on appeal at the United States Court of Appeals for the Fifth Circuit. Finally, the case went to the U.S. Supreme Court.

In April 1918, the Supreme Court ruled in favor of the judge and against the Auditor. In the absence of a law allowing the Auditor to make the offset, the Auditor would not be allowed to make the offset. The case is Smith v. Jackson, 246 U.S. 388 (1918).

According to the text of the United States Supreme Court decision in Sims v. United States, 359 U.S. 108 (1959), the language of what is now section 6331 regarding an officer, employee, or elected official, of the United States, etc., etc., (I’ll abbreviate this to the “federal worker language”) was added to the tax statutes many years ago because of the decision in Smith v. Jackson. This is another example of emphatic redundancy (or intensive redundancy) on the part of Congress –- purposefully adding what might be considered redundant language to a statute in response to prior court decisions, in this case to make absolutely crystal clear that it is the intent of Congress that the law allow an administrative levy against federal workers, etc. Had the Auditor in the Canal Zone never withheld the pay of that judge, the case of Smith v. Jackson would have never been brought, and it is entirely possible that the “federal worker language” of section 6331 would not be there today.

Congress was concerned because the Supreme Court, back in 1918, had ruled that an offset against a judge's pay was invalid -- in a case where the word “tax” is not even mentioned -- that an administrative levy for a federal tax on the income of a federal worker might be deemed to be an invalid offset covered by the doctrine of Smith v. Jackson. Now, in the absence of the "federal worker" language in 6331, maybe some court or another might view a tax levy as being covered by Smith v. Jackson, or maybe that court might not view it that way. Either way, the Congress simply wanted to avoid the problem and to make clear that federal administrative tax levies are not impaired by the Smith v. Jackson doctrine. Hence, the arguably redundant (i.e., partially redundant) language of what is now section 6331(a).

This illustrates the tendency of many tax protesters to take unfamiliar language in a statute or other legal text and go wild with conjectures and phony, pseudo-legal theories, straining for an argument against the validity of the tax law, etc., etc., without actually sitting down and doing cold, unemotional formal legal research needed to determine why the language is there in the first place and how the language has been interpreted in actual court decisions.

Aside from suffering from the psychological handicap of always fighting The Authority Figure, always concluding that The Authority Figure is “wrong" or "bad" or "unfair" or "corrupt", and then looking for any language they can find anywhere that they feel seems to “fit” their pre-determined conclusion, most tax protesters suffer from the handicap of not knowing how to perform proper, formal legal research and the handicap of not having studied literally thousands of statutes and court decisions. Statutes like section 6331 are often viewed by protesters in isolation, without a meaningful attempt to put the language of the text in the context of the origin of that language. Instead, the protester simply interprets the language in a way that seems to support the protester’s desired conclusion about the “invalidity” of the law, or to support whatever the protester is otherwise straining to do.

More on section 6331: Administrative levy by Internal Revenue Service[edit]

The United States Supreme Court has stated:

Administrative levy, unlike an ordinary lawsuit, and unlike the procedure described in §7403, does not require any judicial intervention, and it is up to the taxpayer, if he so chooses, to go to court if he claims that the assessed amount was not legally owing. See generally Bull v. United States, 295 U. S. 247, 260 (1935).

--from United States v. Rodgers, 461 U.S. 677, 103 S. Ct. 2132, 83-1 U.S. Tax Cas. (CCH) paragr. 9374 (1983), at [73] (dicta) (bolding added). See also United States v. National Bank of Commerce, 472 U.S. 713 (1985), at [74] (dicta).

The statute authorizing the Internal Revenue Service to seize assets without going to court is 26 U.S.C. § 6331.

Regarding the decision by the IRS to make an administrative levy, the United States Supreme Court has also stated:

.....The IRS need never go into court to assess and collect the amount owed; it is empowered to collect the tax by nonjudicial means (such as levy on property or salary, 26 U. S. C. §§ 6331, 6332), without having to prove to a court the validity of the underlying tax liability. Of course, the matter may end up in court if Baggot [the taxpayer] chooses to take it there, but that possibility does not negate the fact that the primary use to which the IRS proposes to put the materials it seeks is an extrajudicial one......

--from United States v. Baggot, 463 U.S. 476 (1983) (dicta), at [75]. Some exceptions to this rule have been enacted (see below).

In the case of Brian v. Gugin, a group of taxpayers (including a Mr. Ralph Brian) sued a group of IRS and other government employees, (including Ms. Phylis Gugin), for what the taxpayers claimed was a violation of their rights. The following is an excerpt from the court’s decision in the case:

The plaintiffs' premise for their complaint is that the IRS agents were required to have a court order in order to be able to legally seize property for delinquent taxes. Unfortunately, this is a faulty premise. Title 26 U.S.C. §6331 authorizes the IRS to seize property of any person liable for any tax upon ten days notice. The plaintiffs are incorrect in stating that §§6331 and 6321 only apply to the Bureau of Alcohol, Tobacco and Firearms. The statute specifically states that any person may have their property levied upon. 26 U.S.C. §§6331(a) and 6321. The plaintiffs also cite 26 U.S.C. §7402 which grants jurisdiction to the district courts to issue orders, processes and judgments as well as enforce IRS summons. This section does not require a court order in order to levy on property under §6331.
A "levy" by definition is a summary non-judicial process which provides the IRS with prompt and convenient method for satisfying delinquent tax claims. [ . . . ] [T]he IRS has the option under §6502 to collect its assessment by either a levy or a court proceeding [ . . . . ]
Accordingly, the IRS agents were acting within the authority granted under §6331 and no court order was required for the attempted levy on Ralph Brian's property. [. . . . ]
It is important to note that the plaintiff Ralph Brian is not without a course of action under the Internal Revenue Code. If the delinquent taxes claimed are not delinquent, the taxpayer may bring an action with the IRS for a refund.

--Brian v. Gugin, 853 F. Supp. 358, 94-1 U.S. Tax Cas. (CCH) paragr. 50,278 (D. Idaho 1994), aff’d, 95-1 U.S. Tax Cas. (CCH) paragr. 50,067 (9th Cir. 1995), at [76] (italics in original; bolding added).

For exceptions to this rule (for example, requirements that a levy on a principal residence be approved by a court), see subsection (e) of 26 U.S.C. § 6334. (Section 6334 also provides that certain assets are not subject to an IRS levy, such as certain wearing apparel and school books, fuel, furniture and household effects, certain books and tools of trade of the taxpayer's profession, undelivered mail, the portion of salary, wages, etc., that is needed to support minor children, etc.)

More from the U.S. Supreme Court:

Section 6331(a) of the 1954 Code authorizes the Secretary or his delegate to collect taxes "by levy upon all property and rights to property" belonging to a person who "neglects or refuses to pay" any tax "or on which there is a lien . . . for the payment of such tax." Section 6331 (b), and § 7701(a)(21) as well, define "levy" as including "the power of distraint and seizure by any means."

--from G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977) (bolding added; footnotes omitted), at [77].

A section 6331 issue was litigated in and decided by the U.S. Supreme Court in Sims v. United States, 359 U.S. 108 (1959), at [78].

Authority to execute 6020(b) returns[edit]

Some tax protesters argue that under the Internal Revenue Manual, IRM 5.1.11.6.8, IRS employees may have the authority to execute section 6020(b) returns for certain federal taxes under the Internal Revenue Code such as payroll taxes, but not for federal income taxes. The tax protesters are wrong. Federal income taxes are taxes required by the Internal Revenue Code, which is part of the internal revenue law of the United States. Unfortunately, the protesters overlook IRM 1.2.44.3, which is a publication of Treasury Delegation Order No. 182, revision 7, dated May 5, 1997, as updated October 2, 2000, and later redesignated as "Delegation Order 5-2." The order grants that authority with respect to taxes under ANY internal revenue law or regulation. From the Internal Revenue Manual, IRM 1.2.44.3:

1.2.44.3 (Sept. 19, 2012)
Delegation Order 5-2 (Rev. 1)
1. Prepare or Execute Returns
2. Authority: To prepare or execute returns required by any internal revenue law or regulation when the person required to file such return fails to do so.
3. Delegated to: Internal Revenue Agents; Tax Compliance Officers; Tax Auditors; GS-09 Revenue Officers and Revenue Officer Examiners; Compliance Services Collection Operations Managers; Campus Automated Substitute for Return Operations Managers; Campus Examination Operation Manager; GS-09 Campus Examination Revenue Agents; GS-09 Campus Examination Tax Compliance Officers; Campus Examination Managers; GS-09 Individual Tax Advisory Specialists; GS-11 Bankruptcy Advisors; GS-09 Bankruptcy Specialists; Indian Tribal Government Specialists; Federal State and Local Government Specialists; and Tax Exempt Bonds Specialists.
4. Redelegation: This authority may not be redelegated.
5. Sources of Authority: IRC § 6020(b); 26 CFR 301.6020-1(b) and 26 CFR 301.7701-9.
6. To the extent that the authority previously exercised consistent with this Order may require ratification, it is hereby affirmed and ratified. This order supersedes Delegation Order No. 5-2 (formerly DO-182 (Rev. 7), effective May 5, 1997.
7. Signed: Steven T. Miller, Deputy Commissioner for Services and Enforcement

[end of text; bolding added]

Interesting Quatloos forum threads[edit]

http://www.quatloos.com/Q-Forum/viewtopic.php?f=8&t=3460 (your first time.....)

http://www.quatloos.com/Q-Forum/viewtopic.php?f=27&t=762&start=0 (Logic of Legal Discourse)

http://www.quatloos.com/Q-Forum/viewtopic.php?f=27&t=4469 (The Blowhard Channel)

From "Nikki" at quatloos on 21 January 2011:

The following intentionally specifically excludes people (be they real or artificial) who are doing so just for the money -- those who are neither spending years "researching" the law nor spending thousands of dollars buying silver bullets from the paytriot snake-oil salesmen.
The LoserHeads, [i.e., the users of a tax evasion scheme called "Cracking the Code"] like all other non-excluded illegal tax protestors, tax evaders, and compliance-challenged freemen, sovereignoramuses, etc ALL cling to one core belief: there is a pony in there somewhere.
Despite the injunctions against promoters, prison sentences of their gurus, adverse administrative and court decisions against themselves, and loss of their property, businesses, friends, and family; they plod onward.
Somewhere, there's that magical piece of pasta which will finally stick to the wall. Someday, all the other like-minded people will arise and oust the illegal government which has been terrorizing them.
The one thing which will NOT happen ever is that they wake up, realize that they've been duped, and try to reassemble the remaining shards of their existence into something which actually resembles a life.

From: [79]

From user "Pottapaug1938" at Quatloos:

The problem with the TPers [tax protesters] is that CtC [Cracking the Code, a tax scam book] isn't just a tax-advice book to them; instead, it's secular Scripture. They just can't understand how ANYONE could not accept the Revealed Truth as vouchsafed by the Prophet Pete, so they come up with any excuse they can to explain away the skepticism of the rest of us. "If they would just read ALL of CtC", they think, "they would see the wisdom within it." Reading only part of CtC, to them, is like reading only part of The Bible.

---"Pottapaug1938", on July 6, 2009, at [80]

The Cheek doctrine[edit]

From the text of the Cheek case (United States Supreme Court):

Claims that some of the provisions of the tax code are unconstitutional are submissions of a different order. [citation omitted] 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.

I argue that the same logic can apply where the defendant makes a statutory argument, rather than a constitutional one. A taxpayer [ . . . ] is not free, under the law, to read the contrary court decisions and IRS pronouncements and IRS instruction books and then reject them -- no matter how strongly he believes the courts and the IRS to be "wrong" -- and to simply file his tax return under [his own] method, and then argue that the complexity of the law "caused" him to have a "misunderstanding". Clearly, the defendant in such a case is aware of the law. To knowingly, intentionally reject the IRS interpretation is the equivalent of awareness of the law itself -- not because the IRS says so, but because the IRS just happens to be right. To reject the IRS interpretation where, as a matter of law, the IRS just happens to be right, is a DISAGREEMENT with the law, not a good faith belief, etc., etc., as that term is used by the Court in Cheek. Sometimes, an actual belief is not a Cheek good faith belief.

Stated in a slightly different way: The defendant's rejection of the IRS's interpretation of the law (which just happens to be the correct interpretation) is, essentially, an indirect but functional admission of the defendant's awareness of the law -- and it is this awareness that negates willfulness under the Cheek doctrine. Again, it is up to the jury (assuming we have a jury trial) to make that determination.

Adapted from: [81]

More from the text of the U.S. Supreme Court decision in Cheek:

[ . . . ] in deciding whether to credit [defendant John] 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 v. United States, 498 U.S. 192, 202 (1991) (bolding added), at [82].

The Willie case[edit]

From the United States Court of Appeals for the Tenth Circuit:

[ . . . . ] [Defendant Wesley] Willie next contends that the trial court erred in prohibiting him from introducing exhibits to show the basis for his belief that he was not required to file tax returns. Willie argues that the exhibits were relevant to show the sincerity of his good faith belief that he need not file a tax return and thereby were relevant to his defense that, because of that belief, he did not willfully violate the tax laws. He further argues that Cheek v. United States, 111 S.Ct. 604 (1991), requires the admission of the exhibits for that purpose.
The exhibits in question include the Constitution, a History of Congress dated 1792, pages of the session laws, a Navajo Treaty, the Coinage Act of 1965, and letters from the defendant to the Departments of Justice and the Treasury setting forth Willie's contentions that the tax laws do not apply to him. All were denied as irrelevant and improper documents to go to the jury. We affirm the trial court's decision to exclude the documents because, due to his inadequate offer of proof, Willie has failed to preserve the issue for appeal and the court's ruling did not constitute plain error. In the alternative, we affirm the district court because the documents were unduly confusing to the jury. In the further alternative, we affirm the conviction because any error in excluding the evidence was harmless beyond a reasonable doubt.
[ . . . . ]
The problem with the type of material offered by Willie is that it can have both a proper and an improper purpose insofar as it is intended to show the offeror's belief that he need not file income tax returns. "Belief" is a mischievous and tricky concept in this context. It is not a single-faceted idea, but is better defined as having both a normative and descriptive side. A normative belief is how Willie wants the law to be interpreted and ardently believes it should be interpreted. How he believes the law is constitutes a descriptive belief. Thus, while "[tax protesters] believe with great fervor [many] preposterous things . . . ," Coleman v. Commissioner of Internal Revenue, 791 F.2d 68, 69 (7th Cir. 1986), belief in their tax-free status, no matter how sincerely held, is not necessarily a defense to the government's claim of willfulness. Rather, only a belief possessing those characteristics that counter the elements of willfulness is a valid and relevant defense.
"Willfulness" is defined as the "voluntary, intentional violation of a known legal duty." Cheek v. United States, 111 S.Ct. at 610 (emphasis added). To be a relevant defense to willfulness, then, Willie, because of his belief or misunderstanding, must not have known he had a legal duty. Id. at 611 (defendant must be "ignorant of his duty").
[ . . . . ]
It is apparent that it is a delicate task to differentiate between a belief that the law should be different and a belief that the law is different. The difficulty of discerning the often subtle distinctions is magnified by the fact that much of the same evidence can be used to prove both types of belief and because the word "belief" itself is used loosely in describing both sides of the dichotomy. As a result, the precise purpose for which the evidence is offered becomes crucial to the trial court's determination of admissibility, particularly in cases of this nature where the careless admission of evidence supporting both relevant and irrelevant types of belief could easily obfuscate the relevant issue and tempt the jury to speculate that the mere existence of documentary support for the defendant's position negates his independent knowledge that he has a legal duty. [ . . . . ] The defendant must, therefore, persuasively show the trial judge that the evidence is being offered for a permissible purpose by making a proffer of great specificity regarding the type of belief he seeks to prove. A mere statement that the evidence is submitted to show sincerity of belief is not enough.
[ . . . . ]
Willie argues that Cheek v. United States, 111 S.Ct. 604 (1991), requires the admission of any evidence arguably relating to the objective reasonability of his belief. Appellant's Supplemental Brief at 5. We disagree. While the Supreme Court acknowledged that the reasonableness of the defendant's belief may bear on the jury's determination of sincerity, the issue of admissibility of evidence was not before [the Supreme Court]. The Court held only that the jury should be instructed to determine the defendant's subjective beliefs as to the lawfulness of his actions, not that the trial judge must admit any and all evidence related to the basis of those beliefs.
[ . . . ]
Willie and the dissent both make essentially a fairness argument that since, under Cheek, the government is "free to present" evidence of court decisions and Code provisions "to establish the unreasonableness of the defendant's asserted beliefs, . . . the defendant should be able to introduce [similar] evidence . . . to support the objective reasonableness of his beliefs. . . ." Dissenting Opinion, slip op. at 4-5. They rely on the following language from Cheek:
the jury would be free to consider any admissible evidence . . . showing that Cheek was aware of his duty to file a return . . . , 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 v. United States, 111 S.Ct. at 611 (emphasis added). This excerpt, however, does not allow the government to present the court decisions, regulations or statutes themselves or testimony regarding their contents. Rather it only indicates that the jury could properly consider otherwise "admissible evidence" that the defendant was "aware" of those documents and, therefore, "aware" of his duty to file.
Thus, even if Willie had submitted an adequate proffer to the judge regarding the relevance of his belief and the evidence may have shown the basis for that belief, the admission of the exhibits would not be required under Cheek. Rather Cheek, while reinforcing this circuit's subjective standard in determining willfulness, did not abrogate other existing law regarding the admissibility of documentary evidence nor did it alter the trial court's traditional discretionary role in ruling on the admissibility of that evidence.
[ . . . . ] we hold alternatively that the exhibits were properly excluded under Fed. R. Evid. 403 because they were confusing, because the danger of the jury's misuse of the evidence for an improper purpose was great, and because the relevant point was provable by other evidence.

--from United States v. Willie, 941 F.2d 1384, 91-2 U.S. Tax Cas. (CCH) ¶50,409 (10th Cir. 1991) (bolding added), at [83].

My commentary on the Cheek doctrine[edit]

Some of the confusion over "willfulness" (as the term in the Internal Revenue Code is interpreted) has been caused the gradual "slide" of the courts, in their decisions, to the use of terms such as "belief" and "actual belief" and "actual good faith belief." The use of these terms cannot be understood -- in the way the courts use these terms -- without reference to the official formulation of willfulness: the voluntary, intentional violation of a KNOWN legal duty -- a legal duty of which the defendant is AWARE.

The willfulness element in the Internal Revenue Code has been interpreted by the courts as providing an exception to the general rule that ignorance of the law is not a defense. The Cheek defense, and the study of willfulness in the tax code, cannot be properly understood without reference to the point that we are talking about an exception to a general rule.

As the Court implied in Cheek, we must look to what Congress intended when it used the term "willful" in the tax law. The courts have ruled that Congress did not intend that an actual belief that the tax law is unconstitutional would be a valid defense. The courts have ruled that the kind of actual belief that qualifies to defeat a charge of willfulness is an actual good faith belief (even if not objectively reasonable or rational) based on a misunderstanding caused by the complexity of the tax law -- not based on one's own interpretation of the Constitution or one's own interpretation of the constitutionality of the tax law.

--from something I wrote at Quatloos, here: [84] (bolding added).

Thus, I would argue that under the Cheek doctrine, a jury could properly find that a defendant's actual belief that his income is not taxable (or his actual belief that the tax law does not apply to him, or that the tax law does not apply to his income) is not an actual good faith belief based on a misunderstanding caused by the complexity of the tax law. The jury could find that such an actual belief by the defendant is not the kind of actual belief that negates a finding of willfulness.
The existence of the defendant's actual belief that he does not have a legal duty does not necessarily negate a proper jury finding that the defendant is aware of the existence of that legal duty.
If the defendant's actual belief that he does not have a legal duty is an actual good faith belief based on a misunderstanding caused by the complexity of the tax law, then a rational jury could properly find that the defendant lacks willfulness - that the defendant has not engaged in the voluntary, intentional violation of a known legal duty.
If the defendant's actual belief that he does not have a legal duty is based on his persistent, perseverant, obdurate refusal to accept relevant provisions of (A) the Internal Revenue Code or Treasury regulations, or (B) court decisions rejecting his interpretation of the tax law, or (C) authoritative rulings of the Internal Revenue Service, or (D) the contents of income tax return forms and accompanying instructions, of which he is aware at the time of the commission of the alleged offense, a rational jury could properly find that the defendant's actual belief is not an actual good faith belief based on a misunderstanding caused by the complexity of the tax law, and that his actual belief does not negate willfulness.

Disagreement with the taxing authority's interpretation of the law does not negate willfulness. And if the taxing authority's interpretation of the law happens to be correct, a rational jury can find that the defendant's awareness of that interpretation is evidence of the defendant's willfulness -- evidence of the defendant's voluntary, intentional violation of a KNOWN legal duty -- a legal duty of which the defendant is AWARE. A refusal to believe that a legal duty exists after the defendant has been informed that such a legal duty exists is really a refusal to agree that the legal duty exists. The fact that the defendant refuses to agree that his legal duty exists does not negate his or her awareness of the existence of that legal duty. Thus, an actual belief that a legal duty does not exist -- where the defendant has been informed that such a legal duty exists but consciously refuses to accept it -- might not rise to the level of an actual good faith belief based on a misunderstanding caused by the complexity of the tax law, and thus might not negate willfulness.

The Arceneaux case[edit]

From a decision of the U.S. Court of Appeals for the Fifth Circuit:

.......the Government elicited evidence at trial that he [the defendant, Paul Richard Arceneaux] had relied on information provided by individuals who had violated tax laws. Whether Arceneaux knew that those individuals had been unsuccessful in their own attempts to avoid tax liability was relevant to whether Arceneaux's actions were willful.

--from United States v. Paul Richard Arceneaux, case no. 09-60656, U.S. Court of Appeals for the Fifth Circuit (July 8, 2011) (per curiam) (emphasis added).

Similarly, a taxpayer's inclusion of tax protest documents filed with his or her Form 1040 tax return may be circumstantial evidence of willfulness, per United States v. Shivers, 788 F.2d 1046, 1048-49 (5th Cir. 1986) (per curiam).

The Funk case: Income tax on compensation for labor[edit]

From the Funk case:

It is not disputed that Taxpayers failed to report as income wages received during the 1976 and 1977 taxable years. They argue that compensation for labor is not constitutionally subject to the federal income tax, that an individual's labor is capital in which he or she possesses a property right, that an individual has the right to exchange that property for other property, i.e. money, and that such a transaction is an equal exchange which does not give rise to any profit. [ . . . ] Taxpayers' argument that compensation for labor is not constitutionally subject to the federal income tax is without merit. There is no constitutional impediment to levying an income tax on compensation for a taxpayer's labors.

--Funk v. Commissioner, 687 F.2d 264 (8th Cir. 1982) (per curiam), at [85].

The Hendrickson Cracking the Code tax evasion scam and other cases on the frivolous "government privilege" argument[edit]

The creator of the Cracking the Code U.S. federal income tax evasion scam is Peter Eric Hendrickson, an ex-con who has two served terms in federal prison for tax crimes -- the second term for using the "Cracking the Code" scam on his own federal income tax returns. Some of the claims he has used in this scam are:

".....unprivileged, outside-of-federal-geographical-jurisdiction work cannot be taxed indirectly by the federal government." ---From p. 10, Peter E. Hendrickson, Cracking the Code: The Fascinating Truth About Taxation in America (12th Printing, Jan. 2010).

That is false. See below.

".....private-sector proceeds of work (in particular) cannot be taxed under an 'income' tax." ---Peter E. Hendrickson, from p. 25, Cracking the Code.

Completely false. See below.

".....Objects proper to an "income" excise are privileges -- which is to say, activities not of common right -- and even then only to the extent that such activities are profitable and properly fall under the taxing authority's jurisdiction. Consequently, the only lawful objects of the "income" tax are activities for which one is paid by the federal government or a federal agency or instrumentality; activities effectively connected with the performance of the functions of a public office; activities as a federal, federal instrumentality, or federally chartered "State" worker; or activities as a paid officer of a federal corporation [ . . . ]" ---Peter E. Hendrickson, from p. 88, Cracking the Code (italics in original).

Nonsense. Notice the false implication that excises are limited to taxes on "privileges" or "activities not of common right." Clearly, an excise can be validly imposed on an activity engaged in as of "common right." See Abney v. Campbell, 206 F.2d 836 (5th Cir. 1953), cert. denied, 346 U.S. 924 (1954).

".....'income', 'wages', 'self-employment income', 'employee', 'employer' and 'trade or business' – as these and certain other terms are used within, and in regard to, the tax law – have narrow legal meanings exclusively involving, and applying to, certain privileged activities, such as holding or administering a government office, or working in one." ---Peter E. Hendrickson, from introductory material, Cracking the Code.

No, these terms do NOT have the "narrow" legal meanings that Hendrickson falsely claims they have -- and no, these terms are NOT limited to "privileged" activities.

".....the law doesn't apply the income tax to his or her [an individual's] non-federally-connected earnings....." ---Peter E. Hendrickson, from his "Cracking the Code" web site forum.

Yes, the law does apply the federal income tax to an individual's earnings, whether federally connected or non-federally connected. See below.

"Privilege" or "activity" court cases prior to Hendrickson's scam; the meaning of the term "excise"[edit]

As the U.S. Court of Appeals for the Eighth Circuit has stated: "There is no constitutional impediment to levying an income tax on compensation for a taxpayer's labors." Funk v. Commissioner, 687 F.2d 264 (8th Cir. 1982) (per curiam), at [86].

Hendrickson is not the first person to engage in the "government privilege" tax evasion scam. The earliest known case is United States v. Buras. In that case, the argument that the taxpayer can be subject to an excise tax (specifically, the federal income tax) only if he benefits from a "privilege extended by a government agency" was rejected by the United States Court of Appeals for the Ninth Circuit. See 633 F.2d 1356 (9th Cir. 1980), at [87].

See also Nichols v. United States, 575 F.Supp. 320 (D. Minn. 1983), at [88] (...."the plaintiffs' position that they are entitled to a complete [federal income tax] refund because they received no governmental privileges during the tax year is without merit....")

See also Lovell v. United States, 755 F.2d 517, 85-1 U.S. Tax Cas. (CCH) paragr. 9208 (7th Cir. 1984) (per curiam), at [89].

See also Holker v. United States, 737 F.2d 751 (8th Cir. 1984) (per curiam), [90].

See also Olson v. United States, 760 F.2d 1003 (9th Cir. 1985) (per curiam), at [91] ("This court has repeatedly rejected the argument that wages are not income as frivolous [ . . . ] and has also rejected the idea that a person is liable for tax only if he benefits from a governmental privilege.")

See also May v. Commissioner, 752 F.2d 1301, 85-1 U.S. Tax Cas. (CCH) paragr. 9156 (8th Cir. 1985), at [92] (Taxpayer's argument -- that because he "enjoys no grant of privilege or franchise", he is not liable for federal income tax -- was rejected. A penalty was imposed for engaging in frivolous litigation.)

See also Coleman v. Commissioner, 791 F.2d 68 (7th Cir. 1986), at [93] (Taxpayer's argument -- that an excise such as the federal income tax may be imposed only on "government granted privileges" was rejected.)

See also Sullivan v. United States, 788 F.2d 813, 86-1 U.S. Tax Cas. (CCH) paragr. 9343 (1st Cir. 1986) (per curiam), at [94] (Taxpayer's argument -- that because he was a "natural individual and unenfranchised freeman" who "neither requested, obtained, nor exercised any privilege from an agency of government", he was not liable for federal income tax -- was rejected.)

See also Kelly v. United States, 789 F.2d 94, 86-1 U.S. Tax Cas. (CCH) paragr. 9388 (1st Cir. 1986), at [95] (Taxpayer's argument -- that because she "neither requested, obtained, nor exercised any privilege from an agency of government", she was not liable for federal income tax -- was rejected.)

See also Prout v. United States, 31 Fed Appx. 624, 2002-1 U.S. Tax Cas. (CCH) paragr. 50,304 (10th Cir. 2002) (not for public.)

And terms such as "wages" do NOT have "narrow legal meanings exclusively involving, and applying to, certain privileged activities":

".....individuals must pay federal income tax on their wages regardless of whether they avail themselves of governmental benefits or privileges." McLaughlin v. Commissioner, 832 F.2d 986 (7th Cir. 1987) (per curiam) (bolding added), at [96].

From the U.S. Court of Appeals for the Fifth Circuit:

Appellant cites Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389 (1911), in support of his contention that the income tax is an excise tax applicable only against special privileges, such as the privilege of conducting a business, and is not assessable against income in general. Appellant twice errs. Flint did not address personal income tax; it was concerned with corporate taxation. Furthermore, Flint is pre-sixteenth amendment and must be read in that light. At this late date, it seems incredible that we would again be required to hold that the Constitution, as amended, empowers the Congress to levy an income tax against any source of income, without the need to apportion the tax equally among the states, or to classify it as an excise tax applicable to specific categories of activities.

--from Parker v. Commissioner, 724 F.2d 469, 471-472 (5th Cir. 1984) (bolding added).

In a case involving payroll taxes, the U.S. Court of Appeals for the Fifth Circuit stated:

.....appellants are neither historically nor etymologically correct in their claim in substance that excises are limited to taxes laid on the manufacture, sale or consumption of commodities within the country, upon licenses to pursue certain occupations and upon corporate privileges only. It is true that taxes of the kind referred to are excise taxes but it is also true, as was held in Steward Machine Co. v. Davis, that the excises which congress has power to impose are not limited to vocations or activities which may be prohibited altogether[,] or to those which are the outcome of franchise, but extend to vocations or activities pursued as of common right. The term "excise" is and was before and at the time of the adoption of the Constitution a term of very wide meaning.

--from Abney v. Campbell, 206 F.2d 836 (5th Cir. 1953), cert. denied, 346 U.S. 924 (1954) (bolding added), at [97].

Tax on inactivity[edit]

The argument that the federal income tax can be imposed only on amounts received while the individual is engaged in an activity in connection with the exercise of a federal privilege is also incorrect for the simple reason that an indirect tax (an "excise") does not need to relate to an activity at all. For example, one of the points made by the Supreme Court in explaining its holdings in National Federation of Independent Business v. Sebelius, no. 11-393; no. 11-398; no. 11-400 (slip opinion, U.S. Supreme Court, June 28, 2012) is: The Constitution does not guarantee that individuals may avoid taxation through inactivity (page 41 of the slip opinion). The tax in that case is the "shared responsibility payment," the penalty under section 5000A of the Internal Revenue Code imposed on certain persons who do not purchase health insurance. That section 5000A tax is not an income tax but, like the federal income tax, it is generally considered to be an excise (an indirect tax) for purposes of the U.S. Constitution. Not only is the section 5000A tax not connected to an activity involving a federal privilege, it is not connected to an activity at all. Indeed, the point that it is a tax on inactivity (a failure to purchase insurance) was one of the objections raised by those opposed to the tax in the National Federation case -- and the Supreme Court rejected that objection by noting that the Congress can indeed validly impose an excise -- an indirect tax (which of course does not have to be apportioned) -- on inactivity.

Illegal income is taxable[edit]

The federal privilege argument also fails for the reason that the income tax can be imposed on illegal income. An illegal activity, a criminal activity, is not an activity in which the criminal is exercising a "privilege", federal or otherwise. Under the James Doctrine, as explained in a U.S. Supreme Court decision over fifty years ago, the receipt of money by an embezzler is included in the income of that embezzler under the Internal Revenue Code, even though the money does not belong to the embezzler, and even though he is required to return the money to its rightful owner. James v. United States, 366 U.S. 213 (1961). As the Supreme Court has stated, "An unlawful gain, as well as a lawful one, constitutes taxable income when its recipient has such control over it that, as a practical matter, he derives readily realizable economic value from it." Rutkin v. United States, 343 U.S. 130 (1952), at [98].

Hendrickson's conviction for the Cracking the Code scam[edit]

Hendrickson's was convicted for using the scam. See United States v. Hendrickson, case no. 2:08-cr-20585-DML-DAS (E.D. Mich. April 26, 2010), aff'd in part and rev'd in part, case no. 10-1726 (6th Cir. Feb. 8, 2012) (per curiam) at [99] (conviction affirmed; sentencing vacated and remanded for re-sentencing), cert. denied, U.S. Supreme Court, case no. 11-1345 (June 11, 2012).

Here are some details. In 2008, Peter E. Hendrickson was indicted on ten counts of filing false documents (Form 1040 and Form 4852) with the Internal Revenue Service. See generally United States v. Peter Hendrickson, case no. 2:08-cr-20585-DML-DAS, U.S. District Court for the Eastern District of Michigan. Hendrickson was charged with filing false U.S. federal income tax returns (Forms 1040) and false substitutes for wage statements (Forms 4852) for the years 2000, 2002, 2003, 2004, 2005, and 2006, by reporting that he had received no wages in those years even though he had in fact received wages in those years.

In the trial, Hendrickson testified as follows: "[ . . .] the income tax is an excise tax, it is a specialized tax on privileged related gains. I don’t engage in any privileged activities. My work is perfectly common. You know, perfectly common work doesn’t have any special characteristics, doesn’t gain special benefits, enjoy any special benefits from any government. And it isn’t covered in the language of the statutes that apply to this tax." Trial transcript, United States v. Hendrickson, case no. 2:08-cr-20585-DML-DAS, U.S. District Court for the Eastern District of Michigan, as quoted in Appellant's Brief, Document 006110722992, docketed Sept. 1, 2010, United States v. Hendrickson, case no. 10-1726, U.S. Court of Appeals for the Sixth Circuit.

Neither the judge nor the jury agreed with Hendrickson's claim that his compensation was not "covered in the language of the statutes that apply to this tax". The jury found Hendrickson guilty on all ten counts on October 26, 2009. At the sentencing several months later, the trial court judge in the case stated:

I do want to say a word about the defendant's position that there was an insufficiency of evidence as to his willfulness in making false statements in his submissions to the IRS, because willfulness is a necessary element that the government must show in a successful prosecution in carrying its burden in these 7206 [i.e., section 7206 of the Internal Revenue Code] offenses.
The government, in its response to the defendant's motion, points to ample evidence from which a jury could have concluded, obviously did conclude, that the element of willfulness was established beyond a reasonable doubt.
First, the government noted that the evidence that the defendant filed tax forms for earlier years 1997 through 2000 which he reported the wages on his W-2 Forms as income and declared taxes on the income, thereby evidencing his knowledge that at least for those years he knew what the tax laws required.
Now he may have had a change of heart, but he certainly knew.
And his willfulness is evidenced, again, by his -- among other things, his valid -- his filing of prior valid returns, as well as by his submission of the -- what I would characterize as protest documents.
In addition to that, the government points to the defendant's prior convictions relating to tax protest activities and failure to file and his testimony during cross examination reflecting his -- the rejection of the validity of court rulings in Judge Edmunds' decision in, I believe 2000 in the civil suit, which the government brought to recover funds that were erroneously repaid to the defendant.
[ . . . ]
I don't doubt that Mr. Hendrickson, for reasons which I can't explain, disagrees with the Internal Revenue Service's position, its interpretation of the code and the position that numerous courts have taken in rejecting his various constructions of his reasons why he is not subject to the income tax.
What is important to note here in this context is that Mr. Hendrickson's disagreement does not equal a lack of willfulness.
Under every definition that every single court has looked at, a citizen taxpayer or noncitizen taxpayer for that matter, is not simply free to impose or construct his or her own definition of what the tax code requires and follow that and thereby evade criminal prosecution. That's simply is not the law nor could it be the law. If every person in this country who earned remuneration for the work they do were free to construct their own definition of what constitutes taxable income or wages, we would pretty soon be in a position of anarchy, because such an approach would apply not only to our obligations as citizens with respect to the tax code, but with respect to every other obligation that we as citizens had.
And the fact that Mr. Hendrickson does not agree with the interpretation of the tax code adopted by the Internal Revenue Service and by the government and by courts, every court that has looked at these issues, does not mean that Mr. Hendrickson is not in a legal sense acting wilfully [sic].
He has been for many years now, on notice and more than notice, that his view has been rejected by every governmental authority that has looked at this.
[ . . . ]
I listened with great interest to Mr. Henderson's [sic] testimony as he explained his view as to the definitional scope and requirements of the tax code. I confess that at times I was at pains to follow it.
It was based upon wholly nonsensical and archaic constructions of words, in the Court's view, quite self-serving interpretations.
And in the face of every interpretation in contradiction to Mr. Henderson's [sic] views he has persisted in this and has not only persisted in it, but has focused with I would characterize as almost diatribes in the direction of those who disagree with him.
He asks courts and he asks the government to take a view of leniency toward him and his views, but he surely does not take that same leniency with respect to others who disagree with him. His characterizations of the government, his writings to the IRS and of courts who disagree with him reflect a persistent and almost in a psychological context perseverant response that simply finds no basis not only in the law, but really in a common sense approach to the relationship of a citizenry with its government.
Before coming out on the bench, I was looking through dictionaries to try to find -- and a Thesaurus to try to find some definition that captured what I perceive as Mr. Hendrickson's responses to taxing authorities.
The only accurate description that totally describes, without putting a more pejorative, a more pejorative context to it would be the psychological condition of perseveration. Because in reviewing Mr. Henderson's [sic] course of conduct over the last two decades, I can only conclude that he cannot help himself.
[ . . . ]
The definition of perseveration is: An uncontrollable repetition of a particular response despite the action or cessation of the stimulus. The tendency to continue or repeat an act or activity after the cessation of the original stimulus;
In Mr. Henderson's [sic] case, he has demonstrated this perseverant behavior consistently in a number of different manifestations over the last -- at least the last 20 years or perhaps more in the face of every governmental authority and every judicial decision that has been rendered against him.
I suppose he may view himself in heroic terms as standing up against some sort of tyrannical government as he has reflected on his websites and his writings somehow the government and the judiciary somehow conspired against him and all the people.
[ . . . .]
He apparently is of the belief that I should have instructed the jury by giving the jury the complete statutory code as to all of the language contained in the IRS Code as it relates to the definition of persons, as relates to the definition of wages, as relates to the definition of employer, as it relates to the definition of employee.
All I can say is that's not the job of a judge.
A judge's obligation in instructing a jury of lay people is to put the law in terms that a lay jury can understand as clearly and succinctly as it possibly can. And that's what I did in this case.
After construing the code as to these definitional points, I instructed the jury in plain English in words that I thought they could understand as to my legal rulings on these definitions.
[ . . . ]
In the end, the jury, after considering all the evidence and deliberating, found that although Mr. Hendrickson disagreed with the interpretation, he was on full notice of what the taxing authorities believed the law required [ . . .]

-Judge Gerald E. Rosen, from pages 8 through 24 of the transcript of the Sentence Hearing Proceedings, Monday, April 19, 2010, United States v. Hendrickson, case no. 2:08-cr-20585-DML-DAS, U.S. District Court for the Eastern District of Michigan (Detroit Div.) (bolding added).

Related New York Times article: [100]

On June 29, 2010, Hendrickson began serving his sentence at the Federal Correctional Institution at Milan, Michigan, inmate # 15406-039. He was released on June 13, 2012.

Followers of Hendrickson[edit]

Joseph Alan Fennell was a follower of the Cracking the Code scam. Fennell's arguments — that the compensation he received in exchange for non-federally privileged private sector labor was not taxable, and that non-federally privileged private sector labor is not the subject of an excise (the U.S. federal income tax) — were rejected by the United States Tax Court. See Fennell v. Commissioner, Docket No. 26285-07L, United States Tax Court, Order of Dismissal and Decision (June 17, 2008).

In another Cracking the Code scam case, the individual argued that he was due a federal tax refund because his compensation constituted "earnings for private-sector, non-federally-privileged work" that he had performed as an engineer for his employer. The Tax Court ruled that the argument was "frivolous and groundless," and imposed a separate penalty of $5,000 under section 6673 for engaging in frivolous litigation. Ragan v. Commissioner, Docket No. 11966-08L, United States Tax Court, Order and Decision (Feb. 19, 2009).

In yet another Cracking the Code case involving an individual named David Nelson, the magistrate judge (and the U.S. district court) stated: "The fact that Northwest [Nelson's employer] is a 'private sector company, which is not owned or operated on behalf of the United States' [ . . . ] is immaterial to the question of whether the remuneration Northwest paid Nelson for his work was 'compensation for services' within the meaning of 26 U.S.C. § 61(a)(1). It clearly was." Nelson v. United States, No. 3:08-cv-00508-MCR-EMT, U.S. District Court for the Northern District of Florida (Dec. 7, 2009), aff'd, No. 10-10730, U.S. Court of Appeals for the Eleventh Circuit (Aug. 12, 2010) (unpublished) ("We have repeatedly rejected arguments, such as Nelson's, asserting that private sector employment income is not subject to federal taxation.").

Convictions of Hendrickson's followers[edit]

As of early December 2014, three individuals (in addition to Hendrickson) who have used (or have claimed to have used) the scam, or who have been identified by Hendrickson on his web site as followers, have completed federal prison terms for tax crimes. These are: Roger C. Menner, Michael O'Daniel, and Eugene George Warner. Three more individuals are still serving federal prison sentences: James A. Stuart, Carmen d'Agostino, and Gregory P. Boyd. (Peter Hendrickson actually testified at Boyd's trial.) Two more are awaiting sentencing: Hendrickson's wife Doreen Hendrickson (sentencing scheduled for December 10, 2014), and James Back (sentencing scheduled for December 16, 2014).

The Waltner case[edit]

For an extensive analysis of the scam, see the U.S. Tax Court decision in Waltner v. Commissioner, T.C. Memo. 2014-35, case no. 021953-12L (Feb. 27, 2014), at: [101]. In Waltner, the Tax Court stated (footnotes omitted; bolding added):

Cracking the Code is written by Peter Eric Hendrickson. Nowhere in his book does Mr. Hendrickson set forth his credentials, other than on the back cover where he vaguely identifies himself as "researcher, analyst and scholar". Add to that felon and serial tax evader.
[ . . . ]
If there is a single truth in Cracking the Code, it can be found in ALL CAPS in the forward: If you have taxable income, you are subject to the income tax. This is known as a tautology; it is a statement that merely repeats itself. It says that taxable income is taxable.
As if to draw a contrast, the book then cites S. Pac. Co. v. Lowe, 247 U.S. 330 (1918), for another unremarkable proposition: Not everything that one receives is taxable income. When considering citing a case, a "researcher, analyst and scholar" might look to see whether the "case turns upon its very peculiar facts". (It does. Id. at 338.) A "researcher, analyst and scholar" might look to see whether the law that the case is interpreting is the same law that is currently in effect. (It is not. The case interpreted the Income Tax Act of 1913; we currently operate under the Internal Revenue Code of 1986, as amended.) A "researcher, analyst and scholar" might look to see whether the case has been distinguished or criticized. (It has, repeatedly. See, e.g., Nat'l Carbide Corp. v. Commissioner, 336 U.S. 422, 429 (1949).) A "researcher, analyst and scholar" might look to see whether the analysis in the case has been "repudiated by subsequent decisions" of the very same court. (It has. Id.)
But one need not research the few citations that appear in the book to see what Cracking the Code really is: an antitax screed, short on substance and long on invective. The foreword is clear in this regard, stating: "Plainly stated, the `income' tax scheme is an utterly corrupt and corrosive fraud feeding an ever-more insatiable appetite of a swollen cadre of politically astute private interests and their camp-followers by way of a deliberate campaign of disinformation, intimidation and cunning." The foreword refers to the tax laws variously as "widely misunderstood" and "dauntingly and profoundly confusing", administered by "a professional class of fixers and go-betweens" through a "tangle of deceit and confusion". This is not analysis.
[ . . . ]
Starting with the premise that taxes are either direct or indirect, Cracking the Code lays the foundation for the remainder of the book on two fallacies. The first is that "federal direct taxes which affect citizens of the several states must be apportioned." The Constitution at one time required this apportionment; however, with the adoption of the 16th Amendment in 1913, this rule no longer applies to income taxes. It is unclear whether the author accepts this fundamental point.
The second fallacy is that the Federal Government has legislative authority over only the District of Columbia and U.S. territories and thus lacks the authority to impose taxes within any State. The error here starts with the author's misreading of the Constitution. The Constitution gives Congress 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, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings * * *
From this the author leaps to the erroneous conclusion that "All other areas within the union are under the exclusive jurisdiction of one of the several States, and are thus insulated from federal authority except in regard to certain enumerated powers, and federal governmental property and contract rights." The fact that Congress has exclusive legislative power in one area does not mean that it has no legislative power in others; it merely means that its power in those other areas is not exclusive. States and the Federal Government exercise sovereignty concurrent with one another. Or, as the Supreme Court has stated: "As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government."
[ . . . ]
The author attempts to use early enactments of the income tax to shed light on the meaning of the income tax as it exists, but he fails miserably. Section 86 of the Revenue Act of 1862, ch. 119, 12 Stat. at 472, imposed a 3% tax on Federal employees whereas section 90, 12 Stat. at 473, of the same act imposed a 3% tax on "every person residing in the United States". The author makes an unfounded leap to conclude that by "identification in section 86 of the remuneration (pay) of government workers as taxable—and taxed—this original enactment provides a rare, forthright statutory acknowledgement that the remuneration of private-sectors workers is not." It does not acknowledge any such thing. These are separate provisions under separate headings of the Revenue Act of 1862. More fundamentally, however, these are not the provisions that impose the current income tax.
A similar problem adheres to the author's discussion of Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601 (1895). The case addressed the question of direct versus indirect taxes and the (then-existing) requirement that all direct taxes be apportioned. Again, the apportionment issue was resolved by the 16th Amendment, which was proposed and ratified after Pollock. The author's failure to recognize this simple point renders the rest of his discussion meaningless.
The author's tortured analysis erroneously concludes that remuneration for work is not profit and thus is not taxable. This proposition has already been rejected by the courts. Although we need not review the issue further, the author's illogic is worth noting. The analysis begins with a simple analogy of a shepherd exchanging a sheep for shoes from a cobbler. The author asks whether in such a transaction either party received income, concluding "[c]learly not". This may not be income in the author's mind, but from a tax standpoint, it is income from a barter transaction and it is subject to tax. The rest of the author's conclusions that flow from this analogy all fail because of his faulty premise.
[ . . . ]
Amongst the errors in this section is the author's misapprehension of the meaning of the word "including", or perhaps more accurately his ignoring it. For example, because certain out-of-date tax provisions expressly stated that they taxed income, including that of Federal employees, the author erroneously concludes that persons who are not Federal employees are not taxed. The Supreme Court rejected this view half a century ago.
[ . . . ]
Having spent the immediately preceding chapter misinterpreting the word "including", the author turns to the same Latin phrase discussed above ["expressio unius est exclusio alterius"] and then proceeds to misinterpret it. Indeed, courts have repeatedly explained that phrase, and the author's views simply do not withstand scrutiny. The faulty conclusions that the author reaches are laughable [ . . . ]

For more information on Hendrickson and those who have suffered for using his scam, including those who have served federal prison time in connection with his scam, see the Tax Protester Dossier on Hendrickson at the web site maintained by legal commentator Daniel B. Evans, at [102].

Conclusion[edit]

Peter Hendrickson is under a federal court order never to use the scam again on his own tax returns. See United States v. Hendrickson, 2007 WL 2385071, at *3, 100 A.F.T.R.2nd 2007-5395, No. 06-11753, U.S. District Court for the Eastern District of Michigan (Feb. 26, 2007, amended May 2, 2007), aff'd, No. 07-1510, U.S. Court of Appeals for the Sixth Circuit (June 11, 2008) (sanctions of $4,000 imposed for frivolous appeal), reh'g en banc denied (Dec. 16, 2008), cert. denied, U.S. Supreme Court, No. 08-1399 (June 15, 2009), reh'g denied, U.S. Supreme Court (August 17, 2009).

Federal Reserve System[edit]

Miscellaneous information on the Federal Reserve System......

See also Criticism of the Federal Reserve.

Basic information[edit]

From the United States Court of Appeals for the District of Columbia Circuit:

The Federal Reserve System, which was created by Congress in 1913 as this nation's central bank, is comprised of public and private entities organized on a regional basis with federal supervisory authority. The System includes a seven-member Board of Governors, the twelve regional Federal Reserve Banks, the FOMC [Federal Open Market Committee], the Federal Advisory Council, and approximately 5,500 privately-owned member commercial banks. [ . . . ] The primary role of the System in the conduct of monetary policy is to facilitate the achievement of national economic goals through influence on the availability and cost of bank reserves, bank credit, and money. Three basic mechanisms employed by the System to implement monetary policy are open market operations, regulation of member bank borrowing from the Federal Reserve Banks, and establishment of member bank reserve requirements.....

--Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir. 1981), cert. denied, 454 U.S. 1082 (1981) (footnote omitted).

From an economics textbook:

The Federal Reserve System can be described as a pyramid having a private base, a mixed middle level and a public apex. At the apex stands the Board of Governors (frequently referred to as the Federal Reserve Board or FRB). [ . . .] At a level of equivalent authority to the Board itself, but in the "middle" of the public-private pyramid, stands the statutory Federal Open Market Committee. [ . . . ] The Reserve Banks are quasi-public institutions: their capital stock is subscribed by the member banks -- all national banks and about one-third of the state-chartered banks [ . . .] Off to the side stands the final element of the statutory organization, the Federal Advisory Council (FAC).

--Michael D. Reagan, "The Political Structure of the Federal Reserve System," American Political Science Review, Vol. 55 (March 1961), pp. 64-76, as reprinted in Money and Banking: Theory, Analysis, and Policy, pp. 151-152, ed. by S. Mittra (Random House, New York 1970).

More from the text:

[ . . . ] the "ownership" of the Reserve Banks by the commercial banks is symbolic; they do not exercise the proprietary control associated with the concept of ownership nor share, beyond the statutory dividend, in Reserve Bank "profits." [ . . .] Bank ownership and election at the base are therefore devoid of substantive significance, despite the superficial appearance of private bank control that the formal arrangement creates.

--Michael D. Reagan, "The Political Structure of the Federal Reserve System," American Political Science Review, Vol. 55 (March 1961), pp. 64-76, as reprinted in Money and Banking: Theory, Analysis, and Policy, p. 153, ed. by S. Mittra (Random House, New York 1970).

From Paul Horvitz, in another economics textbook:

[ . . . ] the member banks can exert some rights of ownership by electing some members of the Board of Directors of the Federal Reserve Bank [applicable to those member banks]. For all practical purposes, however, member bank ownership of the Federal Reserve System is merely a fiction. The Federal Reserve Banks are not operated for the purpose of earning profits for their stockholders. The Federal Reserve System does earn a profit in the normal course of its operations, but these profits, above the 6% statutory dividend, do not belong to the member banks. All net earnings after expenses and dividends are paid to the Treasury.

-- Paul M. Horvitz, Monetary Policy and the Financial System, p. 293, Prentice-Hall, 3rd ed. (1974). (Horvitz received his Ph.D. from Massachusetts Institute of Technology, and was Director of Research at the Federal Deposit Insurance Corporation. He was an assistant professor of finance at Boston University. He also served as Associate Director of Research for the Office of Comptroller of the Currency, U.S. Department of the Treasury, and as Financial Economist at the Federal Reserve Bank of Boston.)

From the Congressional Research Service:

Because the regional Federal Reserve Banks are privately owned, and most of their directors are chosen by their stockholders, it is common to hear assertions that control of the Fed is in the hands of an elite. In particular, it has been rumored that control is in the hands of a very few people holding "class A stock" in the Fed.
As explained, there is no stock in the system, only in each regional Bank. More important, individuals do not own stock in Federal Reserve Banks. The stock is held only by banks who are members of the system. Each bank holds stock proportionate to its capital. Ownership and membership are synonymous. Moreover, there is no such thing as "class A" stock. All stock is the same.
This stock, furthermore, does not carry with it the normal rights and privileges of ownership. Most significantly, member banks, in voting for the directors of the Federal Reserve Banks of which they are a member, do not get voting rights in proportion to the stock they hold. Instead, each member bank regardless of size gets one vote. Concentration of ownership of Federal Reserve Bank stock, therefore, is irrelevant to the issue of control of the system.

--G. Thomas Woodward, Economics Division, Congressional Research Service, Report No. 96-672 E, "Money and the Federal Reserve System: Myth and Reality," Congressional Research Service, Library of Congress (July 31, 1996) (italics in original).

From the Board of Governors:

Member banks must subscribe to stock in their regional Federal Reserve Bank in an amount equal to 6 percent of their capital and surplus, half of which must be paid in while the other half is subject to call by the Board of Governors. The holding of this stock, however, does not carry with it the control and financial interest conveyed to holders of common stock in for-profit organizations. It is merely a legal obligation of Federal Reserve membership, and the stock may not be sold or pledged as collateral for loans.

--from "The Federal Reserve System: Purposes and Functions," p. 12, Board of Governors of the Federal Reserve System (9th ed. June 2005).

How banks make loans[edit]

Allowing the issuance of loan proceeds in the form of cash (that is, in the form of paper currency and current coins) is considered to be a weakness in internal control in a bank. See, e.g., Industry Audit Guide: Audits of Banks, p. 56, Banking Committee, American Institute of Certified Public Accountants (1983).

From a text published by the American Bankers Association:

Typically, bank loans are made to existing customers, or the proceeds of a loan are used to open an account; thus, most bank loans increase total deposits. In the typical credit situation, two balance sheet items --loans and deposits -- are simultaneously increased.

--Eric N. Compton, Principles of Banking, p. 150, American Bankers Ass'n (1979) (Eric N. Compton was a Vice President at The Chase Manhattan Bank, N.A.)

From Paul Horvitz:

Since demand deposits are money, this means that commercial banks can create money. The process of deposit creation is deceptively simple -- so much so that even the bankers themselves have frequently been deceived. There are several reasons for this confusion and we shall try to clarify them.
One cause of confusion centers around the meaning of "deposit." Deposits are, of course, a liability of the bank. If we have a $300 deposit in a commercial bank, the bank owes us $300. The deposit itself, however, can arise in various ways. We may have brought $300 in paper money to the bank to deposit in our account. On the balance sheet of the bank this transaction will simply be reflected as a $300 increase in the bank's holdings of cash, and a $300 increase in the bank's deposit liabilities. This transaction is what may be called a primary deposit. It should be noted that this transaction does not result in any change in the money supply. The depositor has $300 less in currency and $300 more in the form of a demand deposit; his total holdings of money are unchanged.
Deposits may arise in a different way, however. Let us suppose a businessman comes into the bank and wants to borrow $1000 to cover the cost of some additional inventory he wants to purchase. The bank may approve the loan, and the businessman will tell the bank to credit the $1000 to his deposit account.
Bank Assets
debit Loans $1000
Bank Liabilities
credit Deposits $1000
The businessman now has an additional $1000 demand deposit. No one else's demand deposits have been reduced. This is clearly an increase in the money supply, and it is apparent that the bank created the $1000.
These derivative deposits are very important both quantitatively and theoretically -- it is in terms of derivative deposits that banks can be thought of as creators of money. If all deposits arose from primary deposits, banks could not be said to create money.

-- Paul M. Horvitz, Monetary Policy and the Financial System, pp. 56-57, Prentice-Hall, 3rd ed. (1974). (Horvitz received his Ph.D. from Massachusetts Institute of Technology, and was Director of Research at the Federal Deposit Insurance Corporation. He was an assistant professor of finance at Boston University. He also served as Associate Director of Research for the Office of Comptroller of the Currency, U.S. Department of the Treasury, and as Financial Economist at the Federal Reserve Bank of Boston.)

From the Federal Reserve Bank of Chicago:

Of course, they [commercial banks] do not really make loans out of the money they receive as deposits. If they did this, they would be acting just like financial intermediaries and no additional money would be created. What they do when they make loans is to accept promissory notes in exchange for credits they make to the borrowers' deposit accounts. Loans (assets) and deposits (liabilities) both rise....

--Federal Reserve Bank of Chicago, Modern Money Mechanics, pp. 3-13 (May 1961), reprinted in Money and Banking: Theory, Analysis, and Policy, p. 59, ed. by S. Mittra (Random House, New York 1970).

The Lewis case[edit]

Some critics of the Federal Reserve System cite the 1982 case of Lewis v. United States for the proposition that the Federal Reserve System is "private" -- as a critique of the System. They usually don't bother to explain why "private" is somehow bad, but the underlying theory is that the Federal Reserve System is secretly owned by evil, international banksters who control the System behind the scenes to their own benefit, and to the detriment of the American people. The use of the Lewis case involves the false contention that because the member banks (e.g., Wells Fargo, Bank of America, etc.) "own" stock in an applicable Federal Reserve bank, the owners or managers of the member banks must somehow control the Federal Reserve SYSTEM as a whole.

However, the Lewis case involved the Federal Reserve Bank of San Francisco, not the Federal Reserve System as a whole. Further, the ruling of the Court in Lewis involved interpretation of the Federal Tort Claims Act (FTCA). In that case, the Court stated that for purposes of the FTCA (allowing certain lawsuits against government entities), "the Reserve Banks are not federal instrumentalities for purposes of the FTCA, but are independent, privately owned and locally controlled corporations..." The Court stated: "Each Federal Reserve Bank is a separate corporation owned by commercial banks in its region." The Court further stated: "The Banks are listed neither as 'wholly owned' government corporations under 31 U.S.C. § 846 nor as 'mixed ownership' corporations under 31 U.S.C. § 856...." However, the Court also contrasted the status of the Reserve Banks under the FTCA with its status under various other Federal laws, and went on to say: "The Reserve Banks have properly been held to be federal instrumentalities for some purposes. In United States v. Hollingshead, 672 F.2d 751 (9th Cir. 1982), this court held that a Federal Reserve Bank employee who was responsible for recommending expenditure of federal funds was a 'public official' under the Federal Bribery Statute. That statute broadly defines public official to include any person acting 'for or on behalf of the Government.'" Lewis v. United States, 680 F.2d 1239 (9th Cir. 1982), at [103]. The Court also noted that under the decision in Brinks Inc. v. Board of Governors of the Federal Reserve System, 466 F.Supp. 116 (D.D.C.1979), "a Federal Reserve Bank is a federal instrumentality for purposes of the Service Contract Act, 41 U.S.C. § 351...." Lewis v. United States, 680 F.2d 1239 (9th Cir. 1982). The Court also noted: "The Reserve Banks are deemed to be federal instrumentalities for purposes of immunity from state taxation." Id.

Lawful money[edit]

Regarding the term "lawful money" (or "lawful currency"):

...the term "lawful money" has not been defined in federal legislation. It first came into use prior to 1933 when some United States currency was not legal tender but could be held by national banking associations as lawful money reserves. Since the act of May 12, 1933, as amended by the Joint Resolution of June 5, 1933, makes all coins and currency of the United States legal tender and the Joint Resolution of August 27, 1935, provides for the exchange of United States coin or currency for other types of such coin or currency, the term "lawful currency" no longer has such special significance.

---Michael E. Slindee, Acting Treasurer of the United States, in a letter to Mr. A. F. Davis of Cleveland, Ohio dated Dec. 29, 1947, published in "A Dollar Is a Dollar Is a Dollar," American Affairs, Vol. 10, p. 88 (April 1948), as re-printed in Money and Banking: Theory, Analysis, and Policy, p. 5, ed. by S. Mittra (Random House, New York 1970); also cited in Paul M. Horvitz, Monetary Policy and the Financial System, p. 28, footnote 3, Prentice-Hall, 3rd ed. (1974).

A brief lecture on creation of money by the Federal Reserve System[edit]

The Federal Reserve notes that the Federal Reserve System creates (actually, the notes aren't even printed by the Federal Reserve System itself) do not belong to a Federal Reserve bank. And there's no profit to the Federal Reserve System (or anyone else) at the moment a Federal Reserve bank issues that note (more on this below). Profit essentially means an increase in net worth. However, at the moment when a Federal Reserve bank issues a Federal Reserve note (actually printed by the U.S. Department of the Treasury), the net worth of the Federal Reserve banks generally does not increase or decrease. There is generally no profit (or loss for that matter) to a Federal Reserve bank when it issues a Federal Reserve note -- although the Fed is definitely creating money -- for someone else.
Think about it in terms of just a Federal Reserve note (such as the one dollar bill in your wallet). If you were going to have an accountant prepare a statement of financial position for you and also one for the Federal Reserve banks, how would that one dollar Federal Reserve note be shown on YOUR financial statement, and how would that same note be shown on the Federal Reserve bank's financial statement? Think about it.
When a Federal Reserve bank issues Federal Reserve notes (the money you carry around in your wallet), the Bank is creating a liability of the Federal Reserve banks, not money owned by the Federal Reserve banks. A Federal Reserve bank may, for example, buy government securities in the open market by issuing Federal Reserve notes (or, as is more likely, issuing a credit for a deposit liability). That means that the Federal Reserve bank is BORROWING in the same way that you borrow when you borrow money from a bank to buy a house. The Federal Reserve bank acquires an asset called a government security, but issues a NOTE as evidencing a corresponding liability. (Actually, in this situation, the applicable Federal Reserve bank generally credits a deposit liability rather than issuing Federal Reserve notes, but we're illustrating a point, here.)
Think of a Federal Reserve note as being similar to the promissory note you sign when the bank makes a loan to you to buy a house -- because that's what a Federal Reserve note essentially is. It represents a LIABILITY OWED BY THE APPLICABLE FEDERAL RESERVE BANK, not MONEY OWNED BY THE FEDERAL RESERVE BANK.
The same dollar that you hold in your wallet (which would be shown as an ASSET on the left side of your balance sheet, if you were to prepare one) is shown on the consolidated balance sheet of the twelve Federal Reserve banks as a LIABILITY OWED BY THE FEDERAL RESERVE BANKS -- on the RIGHT side of their balance sheet. It's money, but IT'S NEVER MONEY OWNED BY THOSE BANKS. At the moment it is issued, it's a LIABILITY OF THE FEDERAL RESERVE BANK, a DEBT OWED BY THAT BANK TO SOMEONE ELSE. It's a debt owed to WHOEVER OWNS the dollar, and it stays that way until the Federal Reserve bank gets that note back. When the Bank gets it back, the note's legal and economic status is extinguished -- just as the debt you owe on a promissory note is extinguished when you pay off the debt and the lender hands you back your cancelled note (as some lenders still do).
The basic concept is that in general you cannot owe a debt to yourself. The Fed (or more properly, a given Federal Reserve bank) cannot owe a debt to itself. To that bank, the printed but as yet unissued Federal Reserve note represents nothing more than what you would have if you typed up a nice, legal-looking "promissory note" at home that said "I hereby promise to pay the holder of this note the sum of twenty dollars on demand." As long as you yourself hold that note in your possession, the "note" is meaningless. It has no legal or economic status.
But if someone cuts your lawn for 20 dollars, and you say to that person "hey, will you let me owe you until next week and just take this twenty dollar promissory note as evidence of my debt to you?" that note becomes evidence of a debt you owe to that person AT THE MOMENT YOU ISSUE THAT NOTE to that person.
Again, as long as the note is in YOUR possession, it is neither money you own nor a liability you owe. It's just a nice piece of paper with some writing on it.
With a Federal Reserve bank, it's the same thing. The Federal Reserve note, if held by that bank prior to its issuance, is neither "money" nor "money owned by the bank" nor a "liability owed by the bank." It's nothing but a nice piece of paper.
At the moment the Federal Reserve bank ISSUES that note to someone (usually, to member bank like Wells Fargo), it then becomes a LIABILITY owed by the Federal Reserve bank to Wells Fargo, NOT money OWNED by the Federal Reserve bank.
Let's say that the Federal Open Market Committee decides to have a Federal Reserve bank buy government securities owned by Merrill Lynch. The people at Merrill Lynch and the people at the Fed decide that the securities in question are worth $10,000. What happens is that Merrill Lynch transfers $10,000 of securities to a Federal Reserve bank, and that bank transfers $10,000 of Federal Reserve notes to Merrill Lynch (actually, more likely the bank simply credits a checking account somewhere, but again we're just illustrating a point here). The Federal Reserve bank debits an asset account called "investment in government securities" (or whatever) for $10,000 and credits a liability account called "Federal Reserve notes outstanding" (or whatever) for $10,000. You have a balanced entry, and there is no gain or loss to the applicable Federal Reserve bank on the transaction. If the value of the securities later goes UP to $11,000 and the Federal Reserve bank sells them for that amount, the bank has a $1,000 gain -- but that's no different than if YOU had bought the securities for $10,000 and sold them for $11,000.
Again, a Federal Reserve note is generally never "money" when its held by the applicable Federal Reserve bank. It's money for YOU when YOU hold the note. But as soon as that note is returned to the Federal Reserve bank, its legal and economic substance is extinguished. The Federal Reserve Bank (of New York, or Dallas, etc.) cannot "owe money to itself." Similarly, you cannot "owe money to yourself" (at least not in the sense that we're talking about).
When the Fed (as a whole) creates money, it does so not by printing the Federal Reserve notes (actually they're physically printed by the Treasury), but by having a Federal Reserve bank ISSUE the notes to SOMEONE ELSE. And the money that is created is NEVER OWNED BY THE FED. The money is owned by the people who RECEIVE the notes FROM the Fed (to be more specific, from one of the Federal Reserve banks). The Federal Reserve note represents a LIABILITY owed by the applicable Federal Reserve bank TO the HOLDER of the note, not money OWNED by the Federal Reserve bank.
This stuff is difficult to understand in part because the average person is not used to thinking of the dollar bills in his wallet as representing a liability owed by someone else to him. Those dollar bills are an ASSET for YOU, because YOU'RE NOT THE FEDERAL RESERVE BANK.
Similarly, that promissory note you created -- as long as it's held in the pocket of the guy who mowed your lawn -- represents an ASSET for HIM, in part because HE'S NOT YOU. As long as YOU'RE holding your own note, you "own" nothing (other than a piece of paper with some writing on it, with no legal or economic significance).

The Horne case[edit]

In the case of Horne v. Federal Reserve Bank of Minneapolis, individuals W. Frank Horne, Leo Zurn and others alleged they were "residents, freeholders, voters, citizens and taxpayers of the United States" and that they were suing "on behalf of, in the interest of, and representing the people of the United States to enforce the primary right of the people of the United States to have the Constitution of the United States followed by their Government..." Horne and his fellow plaintiffs contended that that the Federal Reserve Banks, by issuing Federal Reserve Notes, were "coining" money in violation of Article I, Section 8 of the Constitution, and that the statute authorizing such banks to do so was an unconstitutional delegation of legislative authority. The Plaintiffs also contended that when banks create credit by making bookkeeping entries, the banks were engaging in an unlawful coining of money. The Plaintiffs also asserted that when the banks use this credit to purchase U. S. Treasury securities, such securities were being acquired by the banks without any consideration being paid for the securities. The Plaintiffs argued that the securities were therefore worthless and void. The Plaintiffs contended that as a result, the taxpayers of the United States were indebted to the banks (at the time of the lawsuit) for about 1.5 trillion dollars, and that the imposition of taxes on all taxpayers to cover the principal and interest on these allegedly void securities was unconstitutional.

The United States Court of Appeals for the Eighth Circuit ruled that the Plaintiffs had not suffered a direct injury, that they lacked standing to maintain the lawsuit, and that the suit did not satisfy the requirement of a case or controversy under Article III of the Constitution. See Horne v. Federal Reserve Bank of Minneapolis, 344 F.2d 725 (8th Cir. 1965), at [104].

The Anderson case[edit]

Carl R. Anderson was convicted of eleven counts of mail fraud under 18 U.S.C. section 1341 and twelve counts of securities fraud under 15 U.S.C. section 77q(a). His argument -- that the Federal Reserve System was unconstitutional and that Federal Reserve notes received by him as part of his scheme had no value -- was rejected by the United States Court of Appeals for the Eighth Circuit as being "without merit". His criminal convictions were upheld. See United States v. Anderson, 433 F.2d 856 (8th Cir. 1970), at [105].

Commentary on terminology[edit]

My commentary, adapted from remarks I made in late August 2013, now in the archives of the article on Fractional Reserve Banking:

I noticed this material in the article:

Fractional-reserve banking permits a bank to make loans against the reserves it takes in as demand deposits. Full-reserve banking would not permit lending from demand deposits.

First of all, I doubt that the cited sources actually support these statements. If the sources do support these statements, then the sources have some problems with clarity.

There is no such thing as "making a loan against reserves" in the ordinary banking sense. For a commercial bank, its "reserves" are generally its vault cash and the balance of its account with the central bank (I'm simplifying here). Most bank loans are made simply by debiting an asset account on the bank's books (called "loans receivable" or some similar label) and by crediting a liability account on its books called a "deposit". The bank's reserves (its vault cash and its account with the central bank) generally are not affected.

There is no such thing as "lending from demand deposits" in the narrow sense. You can't "lend" from a liability. Think of it this way: If you borrow $100 in Federal Reserve notes from your brother, with an agreement that you have to pay your brother back, the $100 in Federal Reserve notes becomes your property. You also have a liability -- a debt owed to your brother. If you think of yourself as the bank and your brother as the bank's customer, you have an almost perfect analogy. You cannot lend from the liability you owe to your brother. What you can do is to go out and lend the actual, physical $100 in Federal Reserve notes that now belong to you. In a sense, you are lending your reserves. You are not lending from a "liability." If you do lend the $100 in Federal Reserve notes, the actual physical notes cease to be yours, and become the property of the person to whom you made the loan. You now have a sort of intangible (I'm using the word in a general sense) asset called a "loan receivable."

One problem with discussions about banking is that the terminology is confusing. The average person thinks of the actual physical dollar bills as the "deposit." But, in banking parlance, once the bank teller takes your "deposit," the money is no longer a "deposit" -- it's just "vault cash" or "currency and coin" in bank parlance. The bank account that is set up -- the liability that the bank owes to you -- is the deposit liability of the bank. You no longer own the actual physical dollar bills. You own a deposit account, which is a liability on the books of the bank.

Now, in my description above, I talked about a bank lending actual physical dollar bills. In reality, that rarely happens. Only rarely do banks actually relinquish ownership and control over an amount of actual, physical vault cash at the instant a loan is made. Generally, banks debit an asset ("loans" or "loans receivable," etc.) and credit "deposit liability" (or, let's say, if a cashier's check is issued, a liability account that reflects the outstanding check).

In summary: the details of fractional reserve banking and banking in general can be confusing in part because of terminology.

[ . . . ]

At the expense of appearing to beat a nearly-dead horse, in the rare occasion where a bank does make a loan by actually doling out physical cash from its vault at the instant the transaction is done, I would not call that making a loan "against" reserves. What the bank would be doing there is increasing an asset account (loans) and decreasing another asset account (decreasing reserves, i.e., a particular kind of reserves called "vault cash" or "currency and coin" or some such label). That's not lending against reserves -- that's lending by actually disposing of some reserves.

Now, let's look at the offending language again:

Fractional-reserve banking permits a bank to make loans against the reserves it takes in as demand deposits. Full-reserve banking would not permit lending from demand deposits.

The first and the second sentence are confusing when read together. In the first sentence, the author seems to be implying that a loan is made "against reserves". In the second sentence, the author seems to be implying that loans are made "from demand deposits." That is nonsensical in a very technical accounting sense. The author is confusing the debits and the credits. Here's what I mean.

Any transaction that is properly recorded on the books of a bank must have at least one debit side and one credit side, and the total dollar amount of debits must equal the total dollar amount of credits. If a new customer walks into a bank with $100 in Federal Reserve notes and sets up a checking account, that event affects TWO items, not one. The debit on the bank's books is to an asset account called "currency and coin" or "vault cash" or some such label. The credit on the bank's books is to a liability account (e.g., demand deposit account). The author of the quoted material is really conflating the debit and the credit -- by referring to a loan as being made "against reserves" (against an asset account, with a normal debit balance) in the first sentence and by referring to a loan as being made "from demand deposits" in the second sentence.

There is no such thing as a bank making a loan from demand deposits it owes to its customers. When it comes to a deposit liability, the bank doesn't "have" anything to loan. The bank owes something. You can't loan something you don't have.

What the bank has is reserves (in this example, vault cash). A bank can loan vault cash by relinquishing ownership of that cash and increasing, in exchange, the total balance some other class of asset such as "loans" (although, as I said above, this particular kind of loan is rare), but describing that event as loaning "against" the cash (i.e., against "reserves") is a clumsy use of terminology at best.

[ . . . ]

.....a bank cannot lend a "deposit" (in the sense of a deposit liability owed by the bank) at all (whether in a full reserve system or a fractional reserve system). The bank doesn't "have" the deposit in the first place. The "deposit", in banking parlance, is what the bank owes, not what the bank has. A bank has assets (reserves, such as vault cash, would be an example of assets). A bank owes liabilities.

[ . . . ]

A bank cannot "lend from time deposits." A bank can lend "from" reserves (by parting with a particular kind of reserves, called "vault cash"). But, that kind of bank lending is rare.

Most bank lending is done by creating deposits -- that is, by creating deposit liabilities out of "thin air", or by incurring some other sort of bank liability (such as a cashier's check, etc.).

Again, the problem in part is confusing terminology. The term "deposit" is often used to refer to the actual, physical currency and coin that is "deposited" when a customer walks up to a bank teller and makes the "deposit." But, in banking parlance, those physical items of currency and coin are not a "deposit" once the transaction is completed. On the bank's books, the event of the banks receiving the physical currency and coin is recorded as a debit to an asset account called "vault cash" or "currency and coin" or some such. The simultaneous creation of a liability -- in the form of the creation (or increase) in, say, the customer's checking account, is recorded as a credit to a liability account -- a deposit account.

If the bank lends those same physical currencies and coin to some other customer a few minutes later, that loan is not being made from a deposit in the technical sense. The loan is being made from vault cash. The bank doesn't "have" the deposit. The bank owes the first customer the deposit. What the bank is lending to the second customer is cash that the bank had acquired from the first customer.

Again, bank loans made by doling out vault cash are actually rare.

PS: In the banking and accounting worlds, we are used to being able to use terms like "deposit" in both senses -- to refer (as customers often do) to the actual physical money as the "deposit" AND to refer to the LIABILITY as the "deposit." But we're not confused about it, because we can keep the debits and credits straight.

Technical terms are often used in multiple ways. For example, a lawyer or judge may refer to an actual piece of paper as being a "contract", as in "Did you actually sign the contract?" or "Did you read the contract?". But in another legal sense, a contract isn't a piece of paper -- it's not a physical object. The contract is the promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law recognizes as a duty. The term is used in more than one way.

Now, let's look at this language again:
"Fractional-reserve banking permits a bank to make loans against the reserves it takes in as demand deposits."
A more precise, technically correct way to say this would be:
Fractional-reserve banking permits a bank to make loans by disbursing, to a borrower, a portion of the paper currency and current coins the bank previously acquired when a demand deposit liability of the bank was incurred or increased.
Now, let's look this language:
"Full-reserve banking would not permit lending from demand deposits."
A more precise, technically correct way to say this would be:
Full-reserve banking would not permit a bank to make loans by disbursing, to a borrower, a portion of the paper currency and current coins the bank previously acquired when a demand deposit liability of the bank was incurred or increased.
To digress a bit: Depending on how it were to be set up, a full-reserve banking system might essentially treat the physical paper currency and current coins as still being owned by the customer, and not by the bank. If it were set up that way, the bank presumably could not legally use the currency, etc., to make a loan, since the bank wouldn't even own the currency. Under this particular version of a full-reserve system, the bank would be little more than a safekeeper of the customer's money. We already have a version of this in the banking system in the United States: safe deposit boxes. The money you place in a locked safe deposit box at your bank remains your property. It is not the property of the bank, and it does not show up as an asset on the bank's balance sheet. And no liability, no deposit account on the bank's books, is created when you place your money in a safe deposit box inside the bank building. Further, although the safe deposit box is physically located inside a bank vault, the money in the box is not part of "vault cash" as that term is used in U.S. federal banking regulations. It's not part of the bank's "reserves".

The Federal Reserve System, Federal Reserve notes, and tax protesters[edit]

Early cases with tax protester arguments mixed with arguments about Federal Reserve notes or the Federal Reserve System:

United States v. Porth, 426 F.2d 519 (10th Cir. 1970), at [106].

Porth v. Templar, 453 F.2d 330 (10th Cir. 1971), at [107].

Lamb v. Commissioner, 32 T.C.M. (CCH) 305, T.C. Memo. 1973-71 (1973), at [108].

United States v. Daly, 481 F.2d 28, 73-2 U.S. Tax Cas. (CCH) paragr. 9574 (8th Cir.) (per curiam), cert. denied, 414 U.S. 1064, 94 S. Ct. 571 (1973), at [109].

Hartman v. Commissioner, 65 T.C. 542 (1975), at [110].

United States v. Oaks, 527 F.2d 937 (9th Cir. 1975) (per curiam), at [111].

United States v. Schmitz, 542 F.2d 782 (9th Cir. 1976) (per curiam), at [112].

Subject matter jurisdiction & personal jurisdiction in a federal criminal case[edit]

From the U.S. Court of Appeals for the Seventh Circuit:

Burke [the defendant] first argues that the district court should have dismissed the indictment because (1) his prosecution for perjury violated the Rule of Specialty contained in the extradition treaty between the United States and England, and (2) the vacatur of his supervised release sentence undermined the basis for his extradition and thus stripped the court of jurisdiction.
[ . . . ]
The jurisdictional argument confuses subject-matter jurisdiction with jurisdiction over the person. Subject-matter jurisdiction is furnished by 18 U.S.C. § 3231, which covers all criminal prosecutions under the United States Code. Personal jurisdiction is supplied by the fact that Burke is within the territory of the United States. Whether he came to this nation in a regular manner does not affect the court's authority to resolve the criminal charges against him.

--from United States v. Burke, 425 F.3d 400 (7th Cir. 2005), at [113].

From the U.S. Supreme Court:

The issue in this case is whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country's courts. We hold that he does not, and that he may be tried in federal district court for violations of the criminal law of the United States.
[ . . . ]
In the instant case, the Court of Appeals affirmed the district court's finding that the United States had authorized the abduction of respondent, and that letters from the Mexican government to the United States government served as an official protest of the Treaty violation. Therefore, the Court of Appeals ordered that the indictment against respondent be dismissed and that respondent be repatriated to Mexico. 946 F.2d, at 1467. We granted certiorari, 502 U.S. ----, 112 S.Ct. 857, 116 L.Ed.2d 766 (1992), and now reverse.
[ . . . ]
In Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, rehearing denied, 343 U.S. 937, 72 S.Ct. 768, 96 L.Ed. 1344 (1952), we applied the rule in Ker to a case in which the defendant had been kidnapped in Chicago by Michigan officers and brought to trial in Michigan. We upheld the conviction over objections based on the due process clause and the Federal Kidnapping Act and stated:
"This Court has never departed from the rule announced in Ker that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will." Frisbie, supra, at 522, 72 S.Ct., at 511-512 (citation and footnote omitted).

--from United States v. Alvarez-Machain, 504 U.S. 655 (1992) (bolding added).

The role of a federal prosecutor[edit]

The role of a federal prosecutor:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

--from Berger v. United States, 295 U.S. 78 (1935).

Retaliating against judge or law enforcement officer[edit]

From the federal statutes:

Section 1521 - Retaliating against a federal judge or federal law enforcement officer by false claim or slander of title
Whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an individual described in section 1114, on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both.

--18 USC section 1521.

Representation of a collective entity in court[edit]

Corporations, limited liability companies, etc., are "collective entities." Generally, in court, a collective entity must be represented by an attorney (not by a non-attorney officer, shareholder, etc.). From the U.S. Supreme Court:

Natural persons may appear in Court, either by themselves, or by their attorney. But no man has a right to appear as the attorney of another, without the authority of that other. In ordinary cases, the authority must be produced, because there is, in the nature of things, no prima facie evidence that one man is in fact the attorney of another. *830 The case of an attorney at law, an attorney for the purpose of representing another in Court, and prosecuting or defending a suit in his name, is somewhat different. The power must indeed exist, but its production has not been considered as indispensable. Certain gentlemen, first licensed by government, are admitted by order of Court, to stand at the bar, with a general capacity to represent all the suitors in the Court. The appearance of any one of these gentlemen in a cause, has always been received as evidence of his authority; and no additional evidence, so far as we are informed, has ever been required. This practice, we believe, has existed from the first establishment of our Courts, and no departure from it has been made in those of any State, or of the Union.

--from Osborn v. President, Directors and Company of the Bank of the United States, 22 U.S. 738, 9 Wheat. 738 (1824) (bolding added).

And from the U.S. Bankruptcy Court for the Northern District of Ohio:

Individuals who are parties to federal proceedings have the right to represent themselves personally without a lawyer. 28 U.S.C. § 1654. That right does not extend to permit them to represent other people or entities because by doing so they would be engaging in the unauthorized practice of law. The general rule is that corporations, which are artificial entities, may only appear in court through an attorney. Again, a non-lawyer representing a corporation in court is engaging in the unauthorized practice of law under the vast majority of the case law.
As the United States Supreme Court has stated: "[i]t has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel." Rowland v. California Men's Colony, 506 U.S. 194, 201-202, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (discussing the issue in the context of whether an organization of prison inmates was a "person" entitled to proceed in forma pauperis under 28 U.S.C. § 1915). See also Doherty v. American Motors Corp., 728 F.2d 334, 340 (6th Cir. 1984) ("The rule of this circuit is that a corporation cannot appear in federal court except through an attorney").

--from In re ICLNDS Notes Acquisition, LLC, 259 B.R. 289 (Bankr. N.D. Ohio 2001) (bolding added).

Defamation[edit]

defamation (noun):

Holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community... that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him.... The unprivileged publication of false statements which naturally and proximately result in injury to another [person].... A communication is defamatory if it tends so to harm the reputation of another [person] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

-- Black's Law Dictionary, p. 375 (5th ed. 1979).

an invasion of the interest in reputation and good name. This is a "relational" interest, since it involves the opinion which others in the community may have, or tend to have, of the plaintiff. Consequently defamation requires that something be communicated to a third person that may affect that opinion. Derogatory words and insults directed to the plaintiff himself may afford ground for an action for the intentional infliction of mental suffering, but unless they are communicated to another [,] the action cannot be one for defamation, no matter how harrowing they may be to the feelings. Defamation is not concerned with the plaintiff's own humiliation, wrath or sorrow, except as an element of "parasitic" damages attached to an independent cause of action.

--from W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on The Law of Torts, sec. 111, p. 771, West Publishing Co. (1984) (footnotes omitted; bolding added).

A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

--from W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on The Law of Torts, sec. 111, p. 774, West Publishing Co. (1984) (footnotes omitted).

The courts have, however, attempted to make something like the distinction found in the law of misrepresentation, between assertions of fact and those of opinion, and have held that mere words of abuse, indicating that the defendant dislikes the plaintiff and has a low opinion of him, but without suggesting any specific charge against him, are not to be treated as defamatory. A certain amount of vulgar name-calling is tolerated, on the theory that it will necessarily be understood to amount to nothing more.

---from W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on The Law of Torts, sec. 111, p. 776, West Publishing Co. (1984) (footnotes omitted; bolding added).

The English-American law of defamation has always distinguished between the publication of defamatory statements of fact and derogatory or defamatory expression of opinions about others. The distinction is a necessary and important one. In the first place, truth served as a defense for one who published defamation.

---from W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on The Law of Torts, sec. 113A, p. 813, West Publishing Co. (1984) (footnotes omitted; bolding added).

It is doubtful that an article or publication subjecting a person to ridicule because of the happening of a true occurrence should be regarded as actionable, and, if actionable, on the basis of defamation. Defamation should be limited to imputations about the plaintiff that prove to be false and discreditable.

---from W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on The Law of Torts, sec. 111, p. 777, West Publishing Co. (1984) (footnotes omitted; bolding added).

Any living person may be defamed. The civil action is personal to the plaintiff, and cannot be founded on the defamation of another; but it is of course possible that two persons may stand in such a relation that defamation of one will be found to reflect upon the reputation of the other.....

---from W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on The Law of Torts, sec. 111, p. 778, West Publishing Co. (1984) (footnotes omitted).

Libel – defamation in written or printed words, generally. Slander – defamation of an oral character, generally. See generally W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on The Law of Torts, sec. 112, p. 785, West Publishing Co. (1984) (footnotes omitted).

Miscellaneous reference materials[edit]

Steven R. Mather, J.D., CPA & Paul H. Weisman, J.D., Federal Tax Collection Procedure – Defensive Measures, U.S. Income Portfolios, Vol. 638 (3rd ed. 2012), Bloomberg BNA.

Steven R. Mather, J.D., CPA & Paul H. Weisman, J.D., Federal Tax Collection Procedure – Liens, Levies, Suits and Third Party Liability, U.S. Income Portfolios, Vol. 637 (1st ed. 2012), Bloomberg BNA.

William P. Streng, J.D., Estate Planning, Estates, Gifts and Trusts Portfolios, Vol. 800 (2nd ed. 2012), Bloomberg BNA.

John W. Schmehl, J.D., LL.M. (Taxation) & Richard L. Fox, J.D., LL.M. (Taxation), CPA, Compelled Production of Documents and Testimony in Tax Examinations, U.S. Income Portfolios, Vol. 633 (1st ed. 2012), Bloomberg BNA.

Steven R. Toscher, J.D., Dennis L. Perez, J.D., Charles P. Rettig, J.D., LL.M. & Edward M. Robbins, Jr., J.D., LL.M., Tax Crimes, U.S. Income Portfolios, Vol. 636 (3rd ed. 2012), Bloomberg BNA.

Richard A. Levine, J.D., LL.M., Theodore D. Peyser, LL.B. & David A. Weintraub, J.D., LL.M. (Taxation), CPA, Tax Court Litigation, U.S. Income Portfolios, Vol. 630 (4th ed. 2012), Bloomberg BNA.

Alan J. Tarr, J.D., LL.M. (Taxation) & Pamela Jensen Drucker, J.D., LL.M. (Taxation), Civil Tax Penalties, U.S. Income Portfolios, Vol. 634 (2d ed. 2012), Bloomberg BNA.

Lisa M. Starczewski, J.D., IRS National Office Procedures — Rulings, Closing Agreements, U.S. Income Portfolios, Vol. 621 (3d ed. 2012), Bloomberg BNA.

Some articles of interest[edit]

Tax protester (United States)

Tax protester arguments

Tax protester constitutional arguments

Sixteenth Amendment to the United States Constitution

Tax protester Sixteenth Amendment arguments

Tax protester statutory arguments

Tax protester administrative arguments

Tax protester conspiracy arguments

Tax protester history in the United States

Tax protester 861 argument

Internal Revenue Code section 861

Frivolous litigation

Anders v. California

Tax

Taxation in the United States

Income tax

Income tax in the United States

United States Department of the Treasury

Internal Revenue Code

Internal Revenue Code of 1986

Revenue Act of 1861

Revenue Act of 1862

Internal Revenue Service

Commissioner of Internal Revenue

IRS Criminal Investigation Division

United States Department of Justice Tax Division

Direct tax

Indirect tax

Excise

Excise tax in the United States

Tax evasion

Tax evasion in the United States

Taxing and spending clause

United States v. Butler

Pollock v. Farmers' Loan & Trust Co.

Brushaber v. Union Pacific Railroad

Springer v. United States

Stanton v. Baltic Mining Co.

Flint v. Stone Tracy Co.

Flora v. United States

Cheek v. United States

Lucas v. Earl

Assignment of income doctrine

Murphy v. IRS

Gregory v. Helvering

Economic substance

Substance over form

Tax lien

Tax levies

Garnishment

Tax lien sale

False lien

Paper terrorism

Republic of Texas (group)

Walter Anderson (tax evader)

The Law that Never Was (William J. Benson)

Joseph Banister

Wayne Bentson

Edward and Elaine Brown

Anson Chi

Robert Clarkson

Tom Cryer

Arthur Farnsworth

Kent Hovind

Embassy of Heaven

Gordon Kahl

Eddie Ray Kahn

Vivien Kellems

Jerry Koosman

Guardians of the Free Republics

Republic Broadcasting Network

Aaron Russo

America: Freedom to Fascism

Irwin Schiff

Robert L. Schulz and We the People Foundation

Richard Michael Simkanin

Wesley Snipes

Milton Street

Future Man

Schizophasia

David Wynn Miller

Richard Hatch (Survivor contestant)

Zeitgeist, the Movie

Potentially dangerous taxpayer

Pete Rose

Private attorney general

First National Bank of Montgomery vs Jerome Daly; the "Credit River" case

Martin Mahoney

Fritz Springmeier

Patriot movement

Christian Patriot movement

Posse Comitatus (organization)

Redemption movement

Sovereign citizen movement

Freemen on the land

Constitutional militia movement

Montana Freemen

Militia of Montana

Schaeffer Cox

Militia movement

Norman Olson

Michigan Militia

2010 West Memphis police shootings

Bill Still and The Money Masters

Euphemism and the "euphemism treadmill"

Larry R. Williams

Eisegesis

Confirmation bias

Marc Stevens (radio host)

Fair Debt Collection Practices Act

Federal Debt Collection Procedures Act of 1990

The euphemism treadmill[edit]

Words such as moron, imbecile and idiot were formerly used to describe certain people with mental development disorders. Certain people began using those words in an inappropriate manner -- as epithets, to make fun of people, etc. -- so that the words eventually came to have connotations that were negative. Then, the use of the words in any way became offensive -- so that even using the terms to describe people who actually had the applicable mental condition was considered to be offensive.

So, some substitute terms such as "retarded" and "retardation" were introduced. Eventually, the process repeated itself: Certain people began using the word "retarded" in an inappropriate manner -- as an epithet -- so that even using the term in a neutral way to describe a person who actually has the mental condition is considered by some people to be offensive.

So, people have now tried to replace "retarded" with yet another term, such as "mentally challenged" or "developmentally challenged," etc., etc.

This process is sometimes called the "euphemism treadmill." Unfortunately, it doesn't work. And, unfortunately, it will continue until people stop caving into those who use these terms inappropriately. Essentially, moving from the use of "idiot" to "retarded" and then from "retarded" to "mentally challenged", etc., is not helpful. It does not solve the real problem.

What WOULD be helpful where people use any of these terms in an offensive manner is to explain to those people -- and to the public at large -- that being born mentally retarded is not something to be ashamed of, that it's not something that the individual brought on himself, that it's not right to make fun of someone because he or she is retarded, and that it's not right to use the term as an epithet to describe anyone -- whether he or she is retarded or not.

Calling someone a crook or a criminal is correct and appropriate if that person really is a crook or a criminal, particularly if he or she has been convicted of a crime. In my view, however, referring to someone who is mentally retarded as being mentally retarded is not wrong or inappropriate if that person has that condition and the term is not being used as a wrongful criticism, or in a mean-spirited way.

This is a tough subject. I myself have been guilty of using some of these terms in an inappropriate way.

The people who want to use certain words inappropriately are not going to be "fooled" when well-meaning people treat a term like "retarded" as "no longer allowed" and replace it with a term such as "intellectually challenged" or "developmentally challenged." The "bad guys" will know what the "new" terms mean, and will inevitably choose to use those new terms in an inappropriate way, just as they did in the prior stages of the process. Then, unless the cycle is stopped, any use of terms such as "intellectually challenged" will eventually become just as offensive to the public at large -- because well-meaning people didn't have the courage to stand up to those who use the terms wrongfully.

Again, my view is that we should not declare one term "offensive" and move on to another. The appropriate response is to use the term in the correct way, and to explain why its use in that way is correct. Endlessly continuing on the euphemism treadmill isn't getting us anywhere.

Satire[edit]

Satire is a mode of challenging accepted notions by making them seem ridiculous. It usually occurs only in an age of crisis, when there exists no absolute uniformity but rather two sets of beliefs. Of the two sets of beliefs, one holds sufficient power to suppress open attacks on the established order, but not enough to suppress a veiled attack.
Further, satire is intimately connected with urbanity and cosmopolitanism, and assumes a civilized opponent who is sufficiently sensitive to feel the barbs of wit leveled at him. To hold something up to ridicule presupposes a certain respect for reason, on both sides, to which one can appeal. An Age of Reason, in which everyone accepts the notion that conduct must be reasonable, is, therefore, a general prerequisite for satire.
--Jacob Bronowski & Bruce Mazlish, The Western Intellectual Tradition From Leonardo to Hegel, p. 252 (1960; as repub. in 1993 Barnes & Noble ed.).

Destiny[edit]

Bob Dylan on "destiny":

It's a feeling you have that you know something about yourself nobody else does. The picture you have in your mind of what you're about will come true. This kind of a thing you kinda have to keep to your own self because it's a fragile feeling and you put it out there and somebody will kill it, so it's best to keep that all inside.

--from Sixty Minutes interview on CBS Television.

Voice acting, announcing, narration, etc.[edit]

Announcer

Narrator

Disc jockey

Voice actor

Presenter

Radio personality

Don LaFontaine

Will Lyman

Gary Owens

Don Pardo

Norman Rose

Peter Thomas (announcer)

Other miscellaneous links[edit]

SNX27

Places I've Been[edit]

States visited
Florida Texas Mississippi Alabama Illinois Arkansas Oklahoma New Mexico Ohio Michigan
DC California Washington Oregon North Carolina Maryland South Carolina Virginia Georgia Arizona
Louisiana New York Massachusetts New Hampshire Maine Pennsylvania
Countries visited
USA
home/birth
Canada Germany Austria France United Kingdom

Edit counter[edit]

Number of edits, from 22 November 2005 to 25 June 2014 at 10:50 P.M. (Central Daylight Time USA): 24,794 (per "my preferences" page).