pageok
pageok
pageok
Responding to Tax Protesters:
Do you know someone who believes that they don't have to pay income taxes because income taxes are voluntary, wages are not income, or the income tax is unconstitutional? My collegue Jon Siegel has a website that offers remarkably patient and thorough responses that show why these arguments are wrong. The site has been up for a long time, apparently, but I just learned of it today and I figured others might find it interesting or helpful (or just amusing). Jon also has a blog: Law Prof on the Loose.

  UPDATE: In the comment thread, commenter Ex-Fed adds a story of an amusing judicial reaction to tax protestors:
When I was a prosecutor, I had [a tax protestor] who claimed that the United States District Court did not have jurisdiction over him because the courtrooms had American flags with gold fringes, which established that they were admiralty courts and not courts of general jurisdiction. Judge Hupp, God rest him, wryly said "I'll pretend you're a boat."
Nice.
David Schwartz (mail):
The site contains bizarre statements like: "The system can function only if most people voluntarily comply with their duty to pay." Doing something voluntarily and complying with a duty are precisely opposite in meaning. In fact, one could define "voluntary" as "an action performed in the absence of a duty to perform it".
11.17.2008 7:03pm
TerrencePhilip:
That's an awesome site. There's an old website here dealing with similar arguments, with the classic Easterbrook quote, "Some people believe with great fervor preposterous things that just happen to coincide with their self-interest."
11.17.2008 7:06pm
OrinKerr:
David,

I suppose one could define it that way. But if you're not a lawyer, isn't that sentence pretty easy to understand?
11.17.2008 7:10pm
Anderson (mail):
bizarre statements

I suppose a libertarian would find it bizarre, but I doubt that many other people would. And I find libertarians bizarre. So it's all relative, I guess.
11.17.2008 7:12pm
road warrior99 (mail):
Well it doesn't really matter what these people think, until the illuminati change the law and Obama does away with taxes all together (yea right) these people should just stop grumbling and pay their taxes!
11.17.2008 7:16pm
wolfefan (mail):
In context, I don't find the statement David Schwartz references particularly bizarre, but we can all judge for ourselves. Here's the relevant paragraph; I think the last sentence pulls it together and seems very sensible.

"So what does the IRS mean when it says it relies on “voluntary compliance”? It is referring to the primary method by which it enforces the (mandatory) duty to pay taxes. The IRS recognizes that this is a huge country and there are hundreds of millions of people who have a duty to pay taxes. The IRS can’t follow each of us around personally and force us to pay. The system can function only if most people voluntarily comply with their duty to pay. If everyone in the country simultaneously stopped complying with the tax laws, the IRS would be helpless. It doesn’t have the resources to bring 200 million tax prosecutions. So the primary method of tax enforcement used in this country is the fact that most people voluntarily go ahead and comply with their mandatory duty to pay their taxes."
11.17.2008 7:17pm
David Schwartz (mail):
I suppose one could define it that way. But if you're not a lawyer, isn't that sentence pretty easy to understand?
Personally, I find it impossible to understand. The worst thing you can do is respond to tax protestors with evasive and deceptive arguments. If you're not going to respond with precise truths, why bother?

I can show comparably ridiculous responses on other pages too. The tax protestor arguments are 100% nonsensical garbage. So why not respond to them with precise razor-sharp logic to show that they're garbage? Why state deceptive half-truths?

For example, my page on "income taxes are voluntary" would go like this: Yes, officials sometimes say that, but it's Orwellian double-speak. You are in fact required by law to pay income taxes and they will make your life miserable or put you in jail if they don't. "Voluntary" means in the absence of requirement by law or custom, and you are required to pay income taxes by law, so anyone who says income taxes are "voluntary" is simply in error.
11.17.2008 7:18pm
David Schwartz (mail):
wolfefan: That entire paragraph is nonsensical Orwellian double-speak. You cannot "voluntarily comply" with a "mandatory duty". If I will shoot you if you don't give me your money, and you know this, it is then impossible for you to give me your money "voluntarily".

Why make an argument in response to a tax protestor that any intelligent fifth grader can pick apart in seconds? Their arguments are 100% garbage, so why not show why this is so with accurate statements?
11.17.2008 7:21pm
wolfefan (mail):
Hi David -

Maybe I'm missing something. Let's try another example. The law says I can't go more than 25mph in a school zone. When I approach the school zone, I may either comply voluntarily by lowering my speed, or I may decide not to comply unless I am forced to by a police officer who will make me stop completely.

Likewise, if I owe $1000 in taxes, I may comply voluntarily by sending in a check, or I may be forced into compliance by having the money seized. I will comply either way, but I will make a voluntary choice as to the form compliance will take.

Maybe we just have to agree to disagree, but the paragraph seems pretty reasonable to me.
11.17.2008 7:36pm
Ted Frank (www):
I don't find wolfefan's argument persuasive. But that's okay, because the tax protestors' argument is even less so.

David, it's "voluntary" in the sense that the system relies upon voluntary compliance. The tax collector doesn't come to your house and assess you or send you a bill. One can complain that the choice of words is meant to put a pretty face on the system, and I wouldn't use that phrase myself, but the tax protestors' equivocation of insisting that when the IRS said it was "voluntary" in that one narrow context means that it is legally "voluntary" in all senses of the word is tendentious.
11.17.2008 7:50pm
Ex-Fed (mail) (www):
Ah, tax protesters. So much fun.

When I was a prosecutor, I had one who claimed that the United States District Court did not have jurisdiction over him because the courtrooms had American flags with gold fringes, which established that they were admiralty courts and not courts of general jurisdiction. Judge Hupp, God rest him, wryly said "I'll pretend you're a boat."
11.17.2008 7:59pm
_quodlibet_:

"The system can function only if most people voluntarily comply with their duty to pay." Doing something voluntarily and complying with a duty are precisely opposite in meaning.


Voluntarily complying: You write a check to the IRS.

Involuntarily complying: The sheriff auctions off your possessions and uses the proceeds to pay your tax obligation.

Know the difference; it could save your life.



In fact, one could define "voluntary" as "an action performed in the absence of a duty to perform it".

Forget about duty or obligation; an action can be said to be involuntary if it is physically forced (e.g., the knee-jerk reflex is involuntary) or if it is coerced under threats.
11.17.2008 8:14pm
Sean M:
The IRS has been debunking this stuff for a while, as well:

http://www.irs.gov/pub/irs-utl/friv_tax.pdf
11.17.2008 8:23pm
PubliusFL:
wolfefan: "Maybe I'm missing something. Let's try another example. The law says I can't go more than 25mph in a school zone. When I approach the school zone, I may either comply voluntarily by lowering my speed, or I may decide not to comply unless I am forced to by a police officer who will make me stop completely."

You may be technically correct, but that still makes things confusing for ordinary people, which helps the tax protesters persuade some of them that their explanation of "voluntary" makes more sense. Because you are basically saying that compliance with tax laws is "voluntary" in the sense that compliance with ANY law is "voluntary." In other words, the government can't reach into your head and MAKE you comply with the law, but it'll punish you if you don't, so it hopes the threat of punishment will keep the number of those who don't down. The system will break down if most people decide not to "voluntarily" pay taxes in the same way that it will break down if people decide not to "voluntarily" refrain from stopping at stop signs or committing murder. But no one describes stop sign laws or murder laws as depending on a system of voluntary compliance. Doing so with tax laws just confuses people.
11.17.2008 8:39pm
OrinKerr:
David Schwartz writes:
The worst thing you can do is respond to tax protestors with evasive and deceptive arguments.
What a bizarre statement. Surely it is worse to detonate a nuclear bomb in New York City than it is to respond to a tax protester with evasive and deceptive arguments. When you say that "the worst thing you can do is X," that means it is worse than any other conceivable option. Completely incomprehensible language, if not deceptive and evasive.
11.17.2008 8:39pm
Brett Bellmore:
Tax protesters are guilty of magical thinking, and I tell them so any time I encounter one: Let's suppose everything they say is actually true: Judges draw their pay from taxes, so why in Hell would they expect it to matter???

It's magical thinking, the belief that there's some formula you can recite, and the government will leave you alone despite the fact that it HAS to collect taxes whether or not you're right. Sorry, the government is not some supernatural creature you can bind by reciting the right words. It's something much more dangerous, a human organization which doesn't care if you're right.
11.17.2008 8:46pm
dude:
LOL, Orin.
11.17.2008 8:56pm
Pensans:
Whose interest is it in to believe the preposterous lie that the current system is just and legitimate? Certainly, the list includes U.S. judges, prosecutors and lawyers.

The error of the tax protestors is mistaking the appropriate response to an alien and arbitrary system of laws. The two possible responses are acquiescence and rebellion -- obedience or violence. They have chosen peaceful disobedience and so are mocked and ridiculed by the same soft sophisticates who would tremble and grovel before the threat of force.

I believe that the appropriate response to their legal arguments is a respectful legal reply and thankfulness that they have not chosen violence. On the other hand, if one wanted to push them toward violence, continuing to mock them would probably be useful.
11.17.2008 9:18pm
Nunzio:
It's very difficult to reason with people in a cult, which is what these tax protesters are. They are immune to reason. Having dealt with a few of them, I find myself thinking that the death penalty should apply to tax evasion.
11.17.2008 9:18pm
loki13 (mail):
Pensans,

Sometimes, it is good to mock. I realize that our society is increasingly bereft of humor, but if you can't make fun of these loons, who's left? It's the whole Aristotelean version of humor- we feel better through the misfortune of others.

And I get the same perverse enjoyment out of the tax evaders that I do when I read the Darwin Awards. Does that make me a bad person? Perhaps. But at least I'm a bad person with a smile.

Anyway, with your formulation of violence, I guess the first time through it's a farce, then it repeats as tragedy.
11.17.2008 9:32pm
Dave Hardy (mail) (www):
I found amusing a couple of variations:

1) Person doesn't have to repay mortgage, because after all, once having made the loan, the bank carried the loan on its books as an asset. Which means that the bank gave no consideration, since its assets were precisely the same after the loan as before.

2) Person doesn't have to repay loan because it was made in paper money, and under the Constitution only gold and silver can be used for currency (Constitution actually saying that States cannot issue currency other than gold and silver), so that the loan was of no value.

3) Elaboration on admiralty point: if you step inside the bar of the court, you submit to its admiralty jurisdiction, so if going pro se you must speak from outside the bar.

4) Best of all: the secret to law is that lawyers and judges have a code in which they say the opposite of what they mean to express. You can force the judge out of this by repeatedly demanding that he speak English to you.
11.17.2008 9:36pm
wm13:
I am rather sympathetic to these protestors. I don't believe that people from Mars, or computers with artificial intelligence, or Plato and Aristotle, would understand why the argument that a court with gold-fringed flag lacks jurisidiction is laughable, whereas the argument that the Civil Rights amendments make abortion legal is the law of the land. It certainly isn't logic that gives us the answers. Law is nothing but the will of the elite, and all teaching to the contrary is a lie. The tax protestors who believe that lie are fools, but I wish I could have their belief that law depends on justice, or logic, or consistency, or anything but the interests of the powerful.
11.17.2008 9:36pm
Soronel Haetir (mail):
Prof K,

I'm not so sure, getting rid of NYC would shake up the populace enough that something new could grow. Whether that something was good or bad doesn't really matter, I'm tired of stagnation.
11.17.2008 9:39pm
wolfefan (mail):
Hi -

Sorry if I wasn't more clear. Ted and others have said it better than me.... thanks...
11.17.2008 9:39pm
David Schwartz (mail):
It's very difficult to reason with people in a cult, which is what these tax protesters are. They are immune to reason. Having dealt with a few of them, I find myself thinking that the death penalty should apply to tax evasion.
Have you tried reasoning with them? I haven't seen much evidence that people have tried to reason with tax protestors. Instead, I see responses to their arguments that are almost as bad as their arguments.

The page on why wages are subject to income tax is filled with nonsene as well. I could pick it apart piece-by-piece, but there's not much point. The correct response is found nowhere on the page, which is:

"Wages are taxed as income because there is really no other good way to make an income tax system work. So that's the way ours is structured. Yes, you do have a basis in your labor, but that basis is accounted for by the deductions you are allowed (such as the standard deduction, the amount of income not subject to income tax, and so on). As a practical matter, there's no better way to account for a person's basis in their labor. Yes, not all of your wages are income in the common-sense meaning of income because you do not have a zero basis in your labor."

The arguments it does make are mostly wrong. For example, one argument it makes is that your basis in something is, conceptually, the amount you paid for it, and conceptually not its value. If that were correct, why would your basis in inherited property be its fair market value as of the date it became yours? Why wouldn't you have a zero basis? Why would a basis be adjusted for depreciation? The amount you paid doesn't decrease.

Bluntly, I honestly believe that these kinds of poor responses to tax protestor arguments play into the hands of the con artists. Well-meaning potential victims come to them with these arguments and the tax protestor con artists rip them apart by pointing out the flaws in these counter-arguments. (The con artists definitely don't believe their own arguments, but they know how to rip the wrong responses apart.)
11.17.2008 9:42pm
Josh644 (mail):
I'm afraid you guys arguing against David have got it wrong. "Voluntarily" means doing something without being required to do so. Near school zones, you are required to slow down -- even if no police officer is present.
11.17.2008 9:45pm
Edward A. Hoffman (mail):
Ex-Fed wrote:
Judge Hupp, God rest him, wryly said "I'll pretend you're a boat."
I miss Judge Hupp.
11.17.2008 9:51pm
Nunzio:
Have you tried reasoning with them?

Yes. They are immune to reason. There is no Platonic definition of "income," as they want to believe.
11.17.2008 9:53pm
Fub:
Brett Bellmore wrote at 11.17.2008 8:46pm:
Tax protesters are guilty of magical thinking, and I tell them so any time I encounter one: Let's suppose everything they say is actually true: Judges draw their pay from taxes, so why in Hell would they expect it to matter???
One belief I heard years ago was akin to that: No judge will ever rule against the IRS because if he does, he'll be next on the IRS list for prosecution. It does at least sound plausible.
It's magical thinking, the belief that there's some formula you can recite, and the government will leave you alone despite the fact that it HAS to collect taxes whether or not you're right. Sorry, the government is not some supernatural creature you can bind by reciting the right words. It's something much more dangerous, a human organization which doesn't care if you're right.
I think that's a very accurate observation -- magical thinking drives these beliefs. Law can be very confusing to those who don't even know how to begin understanding it. So it must be magic, and the right incantation will make it work.

Magic legal incantation theories abound as well in other areas of law besides tax law. Just for instance, the belief that the UCC has replaced the Constitution, so that all legal arguments should cite the UCC; the belief that adding the words "under protest" when you sign a traffic ticket will void the ticket in traffic court; and the "fringed flag" maritime law belief so humorously cited above, just to mention a few.
11.17.2008 9:55pm
OrinKerr:
David Schwartz,

I suppose the tax protestor movement will thrive until someone with your rare knowledge and articulateness will destroy it once and for all.
11.17.2008 10:04pm
David Schwartz (mail):
Yes. They are immune to reason. There is no Platonic definition of "income," as they want to believe.
There are three types of tax protestors. Two of them are immune to reason.

One is the con man. He doesn't believe a word of what he's saying. He knows the people who listen to him are suckers. He sells books and tapes, gives speeches and seminars, and the like. He is immune to reason because he already knows he's completely wrong. (He'll happily explain to you in precise detail what's wrong with the *other* tax protestor arguments and why his will 'work' even though the others didn't.)

The second is the split personality. He knows he's wrong, but he likes the fact that he's not paying taxes. Since he hasn't gotten caught yet (or thinks nothing will happen even though he has), his rationale is simply that it has worked for him. He is immune to reason (on the tax protestor arguments) because he already knows he is wrong. He probably fears that if he stops believing the tax protestor arguments, he'll lose his Cheek defense. He is, however, willing to listen to reason in another way -- explain to him that the Cheek defense is extremely unlikely to work and if he works things out now, he almost certainly will not face any criminal charges. (Especially if he has no significant means. He can file an OIC.)

The third type is the true believer. These are the people who honestly see themselves as patriots. They are *not* immune to reason, the only question is how many of them actually exist. They love to try to explain their arguments to you, so it's not hard to get them to reason. They generally believe that reason is on their side, so it can help to point out to them that it's not.

When I was in Houston in the mid-80's, I spent some time with people in the tax protestor movement. I can tell you that I met quite a few people in that third category. Many of them came to realize they were surrounded by a bunch of wackos. (Arguably, including me.)
11.17.2008 10:12pm
David Chesler (mail) (www):
I'll second that on the magic incantations. Sometimes the law makes complete sense, sometimes it makes sense if you understand how it got that way (same as etymology), other times there are conventions and terms of art that are not at all obvious. If they were all obvious, we wouldn't need lawyers. (For instance, the right-pondian crossed check, or the phrase "with prejudice", or various statutes of limitations and frauds. For other examples, look especially to any of the amateur lawyer columns, especially when things are in conflict, or any legal-related story that makes it into the odds-and-ends section of a newspaper.)

What is the word that is more accurate than "voluntary" to describe a system of self-policing that would break down and need to be restructured if people didn't follow the rules even when they could probably get away with them?
11.17.2008 10:14pm
David Schwartz (mail):
Orin: You are very funny. I will revise my primary claim. The site is, overall, pretty good. It is patient and thorough. It does, however, contain many bizarre (and outright false) statements.
11.17.2008 10:21pm
Mitchell J. Freedman (mail) (www):
I liked Judge Hupp, too. I remember my first appearance in front of him because it was the first judge I had been in front of who had his bailiff not only require us to all stand when Judge Hupp appeared, but also had us recite the Pledge of Allegiance. I was wondering at that point if Hupp was going to be a right wing ideologue who would make his decision first, and dress it up in whatever argument came to mind. Instead, I found Judge Hupp a straight shooter who called things from a deep and practical sense of experience. Other attorneys who I later queried felt the same.

I was sad when I heard Judge Hupp had passed away. He was a great judge for trial lawyers to appear in front of and he is definitely missed.
11.17.2008 10:24pm
ResIpsaLoquitur (mail):
True story: the day before my contracts exam in my first year of law school, my buddy and I go over to Coney Island to enjoy some chili dogs and grumble about contracts in general. After a bite, we head back to the car and overhear a pizza man talking to his buddy about court. Curious, we pause to listen in.

We hear something about "contracts" and "jurisdiction" and wonder how the pizza man knows about these things. Finally, we interrupt, introduce ourselves as law students, and ask what's up. Pizza man: "My buddy here got busted for pot. I'm trying to tell him how to get out of it."

Intrigued, we beg the pizza man to enlighten us. "My point is that they served him process improperly," he says. "They typed his name in all-capital letters, and that's not his name."

He goes on: "Anyway, if that don't work, I've got some great arguments he can use on the judge. Did you know the Constitution only allows for three types of law?"

Really? we wonder.

"Yeah. Three types: admiralty, equity, and common law. Now, equity's dead, nobody uses that anymore. There's also this case—"

Wait for it.

"It's called Erie v. Tompkins. It got rid of common law in America."

We're aghast.

"So all you've got left is admiralty law. So that's all the judge can use in court."

OK, but how does that get you out of pot charges?

"Well, see, back when the U.S. passed the 14th Amendment, it forcibly made everyone born here into U.S. citizens. We've all been made into chattel of the U.S. government. And the U.S. has mortgaged us out to other countries to pay off its debts."

No kidding.

"So here's how you get out of jurisdiction: you declare that the U.S. doesn't own you anymore. You take your Social Security Card, see, and you write 'U.C.C. 1-207' on the back of it. That lets you reserve your rights in yourself, so the U.S. doesn't own you anymore."

OK, but what's that got to do with Admiralty law?

"Well, Admiralty law is all we have left in America. So when the judge claims he's got jurisdiction over you, you just tell him you're captain of your own ship."

Like I said, true story.

As an afterthought, I did a LEXIS search on criminal cases mentioning UCC 1-207. First case I found? United States versus Timothy McVeigh. Hey, if a mad bomber can make those kinds of arguments, you know they're a winner. (Sarcasm.)
11.17.2008 10:43pm
HipposGoBerserk (mail):
I ran into one once on the Mall in DC. Once some one had the temerity to tell him that the Code is law and requires income tax be paid, he got out a $20 dollar bill and ranted about it not being real money, just a "Federal Reserve Note" - at which point I brought out a quarter dollar and offered to trade.

He shut up and went away.

HGB
11.17.2008 10:46pm
David M. Nieporent (www):
Can I put in a plug for Dan Evans' Tax Protester FAQ? Dan has been arguing with the tax protester kooks on the internet for at least a decade, and has compiled most of their arguments and rebuttals.
11.17.2008 10:49pm
Pensans:
As to the issue of the flag, it seems to me that a court's correct use of its symbols of authority are necessary to its legitimacy.

If a federal judge were to conduct court under the flag or seal of a foreign nation, it would raise questions about its legitimacy. If a federal judge signed his orders as "admiral X" rather than asserting his own judicial office, this would raise questions about his orders legitimacy.

Tax protestors point out that the flag under which federal courts sits has addended to it an additional elements -- the golden fringe -- which is not part of the statutory definition of the flag. In this, they are absolutely correct.

In general, when Congress by law and the President by delegated authority thru executive order have defined a symbol of authority, why would a court charged with applying such laws add to the legal definition an additional element that upsets any portion of the population? When this is brought to their attention, why wouldn't they remove the additional element rather than mocking those who object.

If the courts wanted to add a gavel to the flag, a republican elephant, a democrat donkey would that be ok? If the courts wanted to add a rainbow, smiley face, picture of Obama, would that be ok?

A golden fringe that some associate with military tribunals? Why not just stick to the flag as defined by statute and executive order?

If the fringe is meaningless, why not dispense with what exceeds the legal definition of the flag?
11.17.2008 10:52pm
Jon Roland (mail) (www):
The Siegel site and others like it have been around for a while and have been thoroughly discredited by persons who know how to reason logically, as Schwartz has begun to do.

What many here seem not to acknowledge is that the burden of proof of the authority to require people to file returns and pay taxes rests on the tax collector, not the alleged taxpayer. Tax protesters find no unbroken logical chain of authority for what from the IRS demands back to the Constitution, and Siegel does not provide such a chain, because there is none. The government has refused to provide proof of its authority despite many demands and lawsuits from many people, who reasonably take that refusal as evidence that there is no authority. It is the ancient principle of quo warranto. We have a report from the GAO that there is no such authority, and a videotaped effective admission of it by a former Commissioner of Internal Revenue, who resorted to a Jewish gang threat when pressed on the issue.

So it is not as though tax protesters don't have well-reasoned legal arguments. There is a host of lawyers who have done the analysis and written extensive briefs in support of the protesters' positions.

No, the only authority for what the IRS does is physical force, not law. Many people are okay with that. They imagine that the government must have such authority because the courts are enforcing it, or that it needs taxes to "pay its bills". Corrupt court decisions prove nothing, and it doesn't need the money. It can create as much as it needs out of thin air. The problem with doing that is that it causes inflation unless a similar amount is withdrawn from circulation by borrowing or taxation. Lately, it has been doing more borrowing, although that alternative is in danger of running out of gullible lenders, and when that happens no rate or kind of taxation will avoid hyperinflation.

We can look forward to a meltdown like that of Argentina, except that it will be all the developed countries participating. Hope you have stocked up on barter goods.
11.17.2008 11:21pm
crane (mail):
Tax protesters - ah, the memories.

I used to work for the IRS, specifically the section your return gets sent to if the computer system flags anything wrong with it. Usually it was just a typo or math error, but sometimes a return would come up where the taxpayer was trying to pull a fast one. Our manual actually had an appendix with a list of all the frivolous arguments people used to get out of paying taxes. It was great fun to read.

My personal favorite was the magic sequence* of letters and numbers that, when typed onto the "other" line in the refundable credits section, would supposedly cause the federal government to give you several thousand dollars. (More like a $500 penalty for filing a frivolous return.)

*Not telling you what it is, just to be on the safe side. Sometimes the IRS slips up and these things get through.
11.17.2008 11:24pm
amcalabrese (www):
When I was clerking at the Tax Court, we had these folks occasionally. My judge had one where the husband settled but convinced his wife to fight out the case.

Best story I heard (from an IRS attorney who claimed it happened in the 1980s), though I am not sure if it is true, involved some tax protestors in Montana or North Dakota who were supposed to attend a Tax Court session in Chicago (the Tax Court judges ride circuit). They never made it to court. According to the IRS attorney, the protestors never showed up.

Instead of driving or taking an airliner to Chicago, they decided to save some money. One of the group had an old WWII vintage bomber he restored. So the protestors took the bomber, followed I-94 down into Chicago, and showed up over O'Hare requesting permission to land. They were arrested on landing and so had to request a postponement.
11.17.2008 11:30pm
David Schwartz (mail):
Instead of driving or taking an airliner to Chicago, they decided to save some money. One of the group had an old WWII vintage bomber he restored. So the protestors took the bomber, followed I-94 down into Chicago, and showed up over O'Hare requesting permission to land. They were arrested on landing and so had to request a postponement.
What were they arrested for? Did the plane not have a certificate of airworthiness?
11.17.2008 11:38pm
don de drain:
I've been a tax controversy attorney for many years, including a stint as an AUSA. I too miss Judge Hupp. Once in a while those who are "constitutionally challenged" (as the IRS calls them these days, as they are not supposed to use the phrase "tax protestors") come up with an argument that has merit. Many years ago I wrote an opinion as an IRS attorney where the "taxpayer" had hauled in to the IRS a very large quantity of pennies to pay a debt of a few hundred dollars. The taxpayer insisted that the IRS accept the pennies. The IRS employees in question refused to accept them, and the taxpayer then got the press involved.

The IRS employees then got the IRS attorneys involved, and the matter landed on my desk to write a legal opinion on whether IRS was required to accept the pennies. At that time Title 31 of the US Code had not been revised, and there was an ancient statute on the books which said that pennies are legal tender for debts not exceeding 25 cents. That was the statute the local IRS folks cited to in support of their position that they did not have to accept the pennies.

I wrote an opinion stating that the local IRS had to accept the pennies in payment but that, in order to avoid any claims by the taxpayer that the pennies were not counted properly, the local IRS people could require the taxpayer to be present while they counted the pennies as a condition of accepting payment.
11.17.2008 11:56pm
OrinKerr:
Jon Roland,

it's funny, when we last debated constitutional law, your arguments reminded me of something that I couldn't quite place: Now I realize that they reminded me of tax protester arguments. Your apparent agreement with the tax protesters brings it full circle.

I do have to ask about one thing you say, though:
We have a report from the GAO that there is no such authority, and a videotaped effective admission of it by a former Commissioner of Internal Revenue, who resorted to a Jewish gang threat when pressed on the issue.
Could you explain to us the role of the Jews in this story more broadly? I would be very interested to hear if you think there is more of a Jewish angle on this question.
11.18.2008 12:24am
Ex-Fed (mail) (www):
I miss Judge Hupp.



As do I. Though he walked that particular tax protester defendant after a bench trial, despite what I saw as a mountain of knowledge and intent evidence -- teaching me the lesson that a bench trial is not a sure win for a prosecutor.
11.18.2008 12:28am
Jon Roland (mail) (www):
OrinKerr:

Could you explain to us the role of the Jews in this story more broadly? I would be very interested to hear if you think there is more of a Jewish angle on this question.

I was hoping you would ask. It seems a Jewish movie producer named Aaron Russo (The Rose, Trading Places) once went to see a Jewish former Commissioner of Internal Revenue, Sheldon Cohen, with a camera, for an interview. After refusing to provide the legal authority for the collection actions of the IRS, Cohen said, “Gornished von hellfin.” Translated, the Yiddish expression means, “Nothing can help you.” It is an old gangster threat.

Would someone with lawful authority resort to saying that?

That is the kind of thing that encourages tax protesters to think they are right.
11.18.2008 1:55am
Milhouse (www):
ROFL

Um, Jon, gornisht vet helfn is not a gang threat in Yiddish, any more than "nothing will help" is in English. It just means "nothing will help". Why would anyone think it was some sort of gang reference?
11.18.2008 2:11am
Milhouse (www):
Which reminds me of the time the little girl went through the forest to bring her grandma some soup. Knowing that there were vampires in the forest she armed herself with a large crucifix. Sure enough, she was jumped by a caped paleface with canines that needed filing, and as he grabbed her head to tilt it up, she pulled out the cross and shoved it in his face. To which he replied, dos vet dich goooornisht helfn.
11.18.2008 2:15am
Jon Roland (mail) (www):
Milhouse (www):

Um, Jon, gornisht vet helfn is not a gang threat in Yiddish, any more than "nothing will help" is in English. It just means "nothing will help". Why would anyone think it was some sort of gang reference?

It is a threat according to Aaron, as confirmed by a couple of others from Brooklyn. The expression with that meaning is local to that neighborhood.
But view the video and decide for yourself. I provided the link.
11.18.2008 2:19am
OrinKerr:
Jon Roland,

So some people from Brooklyn once said something that can only be understood by some people in that neighborhood, and they said it was threat? Wow, that's compelling evidence of a jewish conspiracy if there ever was one.
11.18.2008 2:21am
Milhouse (www):
Which neighbourhood would that be? You do know that Murder Inc. went out of business over 60 years ago, don't you?
11.18.2008 2:25am
Milhouse (www):
You do also realise, don't you, that Brooklyn is not a neighbourhood, that it is in fact a rather large place, and that Yiddish is spoken in a lot of neighbourhoods within it?

In any case, "nothing will help" is something I can well imagine a mobster saying. Suppose a mobster were to say it to you, would you immediately jump to the conclusion that he was using some special gang cant, rather than plain English? If someone else were then to use the same phrase in a different context, e.g. while trying to fix your computer, would you wonder why he was using gangspeak, and suspect that he was a hit man?
11.18.2008 2:32am
Milhouse (www):
One more: when a gangster tells you "end of the line, buddy", it's bad news, but it's not gang cant. When a train conductor tells you the same thing, and you conclude that he must therefore be a gangster, it's time to recalibrate your concluder.
11.18.2008 3:14am
plkhgr:
JR reminds me of another commenter imo - J. Aldridge.

The tax protestor comparison is just Orin being too nice to say that they write some kooky stuff...
11.18.2008 3:33am
Brett Bellmore:

2) Person doesn't have to repay loan because it was made in paper money, and under the Constitution only gold and silver can be used for currency (Constitution actually saying that States cannot issue currency other than gold and silver), so that the loan was of no value.


Strangely enough, the tax protesters usually ARE informed enough about the Constitution to be aware of the 10th amendment, and draw logical conclusions from it. Their mistake, I think, is in thinking this stuff matters.
11.18.2008 5:56am
Jon Roland (mail) (www):
OrinKerr:

So some people from Brooklyn once said something that can only be understood by some people in that neighborhood, and they said it was threat? Wow, that's compelling evidence of a jewish conspiracy if there ever was one.

I said nothing about any Jewish conspiracy. The only significance of "Jewish" is the resort to Yiddish to make a point. To get the context, view the video clip. Have any of you done that, or are you afraid to?
I used the word "neighborhood" to refer to places where Yiddish is used by street thugs, which is not all of Brooklyn, but includes some places outside it, like the Bronx. I don't speak Yiddish myself, although my maternal lineage is Jewish. I am relying on acquaintances, including Aaron Russo, who grew up there.
11.18.2008 6:59am
Jon Roland (mail) (www):
Brett Bellmore:

Strangely enough, the tax protesters usually ARE informed enough about the Constitution to be aware of the 10th amendment, and draw logical conclusions from it. Their mistake, I think, is in thinking this stuff matters.

All you are doing in saying that is that there is no law as that term is understood by most laymen, that the only logic of governance is physical force, as expounded by "O'Brien" in Orwell's 1984. Sorry, but some of us reject such a world, and insist on a rule of law. If those of us who think logic and the Constitution matter ever get our act together, people who think it doesn't matter are going to be searching garbage piles for something to eat.
11.18.2008 7:07am
Milhouse (www):
Yiddish-using street thugs in Brooklyn? Not in my lifetime. Those days are long over. Literally a nechtige tog. Nowadays when Brooklyn Jews need muscle they outsource. (And there are very few Yiddish-speakers of any description left in the Bronx. Certainly no street thugs.)
11.18.2008 7:49am
Milhouse (www):
OK, Jon, I saw the video clip, or at least the portion in question (it's at about 8:20). There is nothing at all suggesting that this was a threat, except for Russo's claim that "he threatened me". Cohen just tells him that none of his arguments will help. Russo does not explain why he thought this was a threat, and he certainly doesn't mention anything about gangs.
11.18.2008 7:57am
David Chesler (mail) (www):
All this time, and I never realized Bubbe was a gangsta. (So there she was, dying at Peninsula General Hospital, and my father was explaining to her that they were going to try this medicine to try to get the fluid out of her lungs, but they also had to worry it would stress her heart, in which case they'd have to discontinue it, but not to worry, abi gezunt.)
11.18.2008 8:24am
Arkady:

If the fringe is meaningless, why not dispense with what exceeds the legal definition of the flag?


FWIW, I'm told that the gold fringe on the flag harks back to the Roman battlefield convention that the commander's position was marked out for all to see by a staff held aloft to which was affixed a sheaf of wheat. Dunno what the judge would have said to the defendant in light of that--perhaps something about rendering unto Caesar.
11.18.2008 8:25am
TerrencePhilip:
I was hoping you would ask. It seems a Jewish movie producer named Aaron Russo (The Rose, Trading Places) once went to see a Jewish former Commissioner of Internal Revenue, Sheldon Cohen, with a camera, for an interview. After refusing to provide the legal authority for the collection actions of the IRS, Cohen said, “Gornished von hellfin.” Translated, the Yiddish expression means, “Nothing can help you.” It is an old gangster threat.

Would someone with lawful authority resort to saying that?


Well for one thing Mr. Cohen, the "Jewish" (as you take pains to describe him) former Commissioner would no longer have had any legal authority if he was a former commissioner, would he?

That point aside, I read the conversation entirely differently from you- I took it as Russo positing crackpot ideas in the form of what he imagined to be "gotcha" questions to Cohen, and Cohen refusing to play the game, pointing out idiomatically that no amount of reason can reach him. For similar reasons, responsible scientists refuse to be interviewed by the folks who think the moon landings were a hoax (there have been however satisfying exceptions). You are wasting your oxygen and time treating nutty ideas as if they are serious; your interlocutors are not really listening anyway. I'd be curious to know what sort of "threat" you thought was being conveyed.

And as I suggested at the beginning I'm not sure what it adds to your narrative to point out that the people involved are "Jewish."
11.18.2008 9:06am
Nick P.:
I've never met the type of tax protester described above, but I have met people who withhold the proportion of their income tax that would go to defense spending. Usually they send it to a charity instead. Since taxes are fungible, it is a purely symbolic protest, but I met one guy who deliberately lived below the poverty line so that he could more definitively claim not to support the military.
11.18.2008 9:12am
BZ (mail):
O, I was going to leave this thread alone, but then someone had to bring me and my Quaker friends into it by dissing some of our not only deeply-felt beliefs, but also our deeply-thought analyses. As a tax and constitutional lawyer, I know that both the IRS and the private sites which discuss these issues inappropriately and illogically mix the wackos with the genuine legal and constitutional issues. We've all seen our share of arguments which depend on whether somebody adds a comma to his name, but there ARE good principles at issue here, which are too often neglected because of the "200 million taxpayers" argument which we all learned in 1L tax law.

For example, here's a summary analysis from an unsuccessful cert petition which did NOT challenge the right to taxation, or even the general procedures used, but only the fact that the record evidence showed that the IRS intentionally delayed and avoided its own procedures in order to penalize some persons who were sincere and genuine religious objectors (the law's a little dated, but it's only used here for illustration):

In Smith, this Court said that a government agency may not exclude religious grounds from a system of “individualized governmental assessment of the reasons for the relevant conduct.” 494 U.S. at 884. In Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 537 (1993), this Court noted that “in circumstances in which individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of “religious hardship” without compelling reason.’” quoting Smith, 494 U.S. at 884, and Bowen v. Roy, 476 U.S. 693, 708 (1986) (opinion of Burger, C.J.).
That is what the IRS is doing here. “Thus, religious practice is being singled out for discriminatory treatment.” Lukumi, 508 U.S. at 538, citing, Bowen v. Roy, 476 U.S. at 722, and United States v. Lee, 455 U.S. at 264, n. 3 (1982)(Stevens J., concurring in judgment).
Though a religious ground need not be treated any better than any other permitted ground, it cannot be treated any worse. Sherbert v. Verner, 374 U.S. 398 (1963); Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829 (1989); Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987); Thomas v. Review Board, 450 U.S. 707 (1981).
Yet the lower court’s decisions here would eviscerate this rule. By defining the government’s compelling interest as “mandatory participation” in a “uniform system,” App. __a, the lower court simply ignored the individualized waiver system which the [petitioners] are challenging. Yet Congress has established, and the IRS is administering, an individualized waiver program for hardships. IRC §§ 6651(a)(2), 6654(e)(3)(A).
Even if, as the lower court suggests, the government has a compelling interest in mandatory participation, Congress has surely decided that the IRS may grant individual waivers from participation in certain circumstances. Id. The question in this case is whether the IRS’s refusal to consider religious hardship as “reasonable cause” or hardship sufficient for an individualized waiver is constitutional. The lower court didn’t evaluate this question as this Court’s decisions require.
11.18.2008 9:13am
geokstr:
Mitchell J. Freedman:

I was wondering at that point if Hupp was going to be a right wing ideologue who would make his decision first, and dress it up in whatever argument came to mind.

Ah, I see. There is, apparently, no such thing as a left-wing ideologue who makes his mind up first and then justifies it with the penumbras radiating from the emanations of sundry phrases in the law, if you squint just right when you read it.
11.18.2008 10:11am
PeterWimsey (mail):
Ah, I see. There is, apparently, no such thing as a left-wing ideologue who makes his mind up first and then justifies it with the penumbras radiating from the emanations of sundry phrases in the law, if you squint just right when you read it.

Sure there are - but they don't begin court by making you rise and recite the pledge of allegiance.
11.18.2008 10:15am
Two-Fisted Law Student (mail):
For those interested in case citations, this site has a ton of cites for cases involving crackpot tax protester and militiaman legal arguments.

http://www.adl.org/mwd/suss1.asp
11.18.2008 10:21am
Guest14:
What many here seem not to acknowledge is that the burden of proof of the authority to require people to file returns and pay taxes rests on the tax collector, not the alleged taxpayer.


Why do you think this is true? If I violate any other law, the government has no general obligation to convince me--to my satisfication--that the law exists. Why are tax laws special?
11.18.2008 11:06am
some dude:
Why do you think this is true? If I violate any other law, the government has no general obligation to convince me--to my satisfication--that the law exists. Why are tax laws special?

They would have to convince a jury that is asked to convict you that there is a law to convict you under. I should hope.
11.18.2008 11:44am
c.gray (mail):

They would have to convince a jury that is asked to convict you that there is a law to convict you under. I should hope.


No. It's generally the function of the JUDGE to determine issues of law, not the jury. And as a rule, the judge is not obligated to convince you that her decisions are correct before proceedings can continue.
11.18.2008 11:53am
Guest14:
No. It's generally the function of the JUDGE to determine issues of law, not the jury.
Yes, the government has to convince the judge that the federal income tax laws exist.

This is not hard, though, since the law condified in title 26 of the US Code is a valid exercise of Congress's power under the taxing and spending clause. That the law imposes a tax is clear to anyone who bothers to actually read it.

The delegation of enforcement powers to the Treasury is likewise not subject to any real controversy. The delegation may not comport with some arbitrary formalities invented by tax protestors, but why should it?
11.18.2008 12:18pm
Sigivald (mail):
Pensans: The existence of a gold fringe on a flag is completely irrelevant to the authority of the court.

Thinking that "having a decorative fringe on a flag means the court isn't Real" is, as others have stated, magical thinking with exactly zero statutory basis (and as far as I know, an equal complete lack of basis in common law).

Since the US Code doesn't define any special flags with fringe or prohibit such decorations or declare that they have Some Special Meaning, the conclusion must be not that "it's not really an American flag so the court has no power", but "it's a real American flag with decorative trim".

Just as if one sewed on a line of bias tape around the edges to keep it from fraying, it's no less a "real flag" for having some fringe around it - or some bunting under it, or being in a frame, or being against a wood paneled wall rather than a brick wall...

(Dan Evans FAQ that another commenter mentioned makes the same argument, with some historical context and court decisions.)
11.18.2008 1:21pm
Happyshooter:
I agree that there were some issues with adopting the amendment, and the gold fringe on the flag may be an improper military flag.
As I tell people, though, them feds got the guns and shooting pregnant women and burning little kids gets them promoted, not punished.
Better to just pay what they want.
11.18.2008 2:21pm
amcalabrese (www):
David Schwartz -- I am not sure what they were arrested for. I assume it is illegal to show up over O'Hare Airport unannounced in a WWII vintage bomber.

But to be truthful, I have never been able to corraborate the story, and while it is my favorite tax protestor story, I am not sure of its veracity.
11.18.2008 2:43pm
John M. Perkins (mail):
Sigivald said

Pensans: The existence of a gold fringe on a flag is completely irrelevant to the authority of the court.


Yes, the gold fringe is irrelevant to non-kooks. But since the fringe is relevant to kooks, and since courts can acquire flags without the fringe [probably for less money than with fringe], why incite the kooks other than the joy of button pushing.
11.18.2008 3:16pm
David Schwartz (mail):
<blockquote>David Schwartz -- I am not sure what they were arrested for. I assume it is illegal to show up over O'Hare Airport unannounced in a WWII vintage bomber.</blockquote>Nope, it's not. When you're not flying IFR and you want to land at an airport, that's pretty much how you do it. You show up just outside their airspace and you call the tower or approach control. Assuming the vintage bomber had a certificate of airworthiness and an operational transponder (which may not even have been required at the time and you can usually get a waiver anyway), I can't think of any reason it wouldn't be legal.
11.18.2008 3:52pm
loki13 (mail):

Yes, the gold fringe is irrelevant to non-kooks. But since the fringe is relevant to kooks, and since courts can acquire flags without the fringe [probably for less money than with fringe], why incite the kooks other than the joy of button pushing.


1. Because we shouldn't allow hecklers' vetoes.

2. Because it wouldn't make a difference. People don't have a deep Constitutional philosophy, and then decide that it prohibits them from paying taxes. Instead, they don't want to pay taxes (perhaps because of their political philosophy, perhaps because they are cheap) and look for reasons to avoid it. If it's not the gold fringe, it will be something else. And I don't want the loonies making decisions for us.
11.18.2008 4:49pm
amcalabrese (www):
David -- in the end, I do not know. As I said, I cannot even verify the veracity of the story, it comes from one IRS attorney.
11.18.2008 5:05pm
David Schwartz (mail):
loki13: Exactly. If we remove the gold fringe, it will be the capital letters. If we remove the capital letters, it will be that the Judge's robes aren't made of silk. If we make the Judges wear silk, it will be something else.

This page shows how the loonies just move to the next bit of lunacy.
11.18.2008 5:32pm
LM (mail):
loki,

[...]

3. Because it's fun.
11.18.2008 9:20pm
David Schwartz (mail):
"I'll pretend you're a boat."
No need to pretend. A citizen of the United States is a "vessel". Simply misread 18 USC 9:
The term “vessel of the United States”, as used in this title, means a vessel belonging in whole or in part to the United States, or any citizen thereof, or any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof.
(Emphasis added)
11.18.2008 10:18pm
Dave D. (mail):
...In this case, tax protestors are empty vessels into which is poured nonsense. I know it's late in the argument, but could the ex-taxman have thought Russo was an Italian ( his name does end in a vowel ) and actually said " garlic ain't helpin' " ? Just askin'.
11.18.2008 11:01pm
Marc Thomas (mail):
Hmmm. I find myself more sympathetic to the view of wm13, particularly when you place the tax protester's, albeit mostly flawed view, in the context of the US Supreme Court's:

A. Commerce Clause jurisprudence (you know, Wickard v Filburn, allowing the purchase of ketchup by a diner as sufficient interstate commerce to for federal government regulation under the Commerce Clause, and the parade of similarly tortured decisions thereafter);

B. finding a "penumbra" in Griswold that applied the Bill of Rights to the states through the 14th Amendment, and, thereby, a "right of privacy" therefrom;

C. extension of this privacy right to a federal right to an abortion. Again, where is that written in the US Constitution. You have to ask: Please! Now who's the "magical" thinker! And, finally,

D. pernicious unwillingness to recognize the limitations on Congress set forth in Article 1, Section 8, and the necessary reservation of powers---and clarifier of the real owner of these powers---in the 10th Amendment (powers not deligated to the US "reserved" to the people").

So, when I read this sneering derision of the "tax protesters'" arguments, in the context of some of the more odious decisions by our "learned" Supreme Court justices, I find it difficult to understand where the contempt for these views is warranted.

Has anyone read Prof Siegel's response to these arguments? He's right on nearly all counts, of course, as there are solid responses to the tax protester folly. But one I've favored as plausible is the idea that the 16th Amendment may never have been lawfully ratified. As for this, Prof Siegel says "Surprisingly enough, this argument has a little something to it. . . ." There's no sense in doing it here, but there are more than a few plausible twists to argument that any tax attorney, including me, would be proud to argue before a court if the opportunity presented itself. Who could say you've never argued worse arguments before a court?

Finally, I've advised a number of protesters in my practice and find them to be, by and large, quite receptive to logic and reason on all counts---particularly the "bottom line" reality that if they persist, they will go to jail and it will cost them a fortune in the process to adavance their principles.

The protesters should be seen, not collectively as kooks, but, instead, as spirited patriots resisting the inexorable push of Big Brother with views, in at least some cases, that are more easily understood and better constructed than some of the tripe from the US Supreme Court, in part set forth above.
11.19.2008 10:19am
David Schwartz (mail):
Finally, I've advised a number of protesters in my practice and find them to be, by and large, quite receptive to logic and reason on all counts---particularly the "bottom line" reality that if they persist, they will go to jail and it will cost them a fortune in the process to advance their principles.
I think you encountered a lot of the "I pretend I'm a patriot, but I just don't like paying taxes" type. Spirited patriots resist the push of Big Brother with personal sacrifice, not with illegal personal enrichment.
11.19.2008 1:01pm
Marc Thomas (mail):
I think you encountered a lot of the "I pretend I'm a patriot, but I just don't like paying taxes" type. Spirited patriots resist the push of Big Brother with personal sacrifice, not with illegal personal enrichment.


Ha, haaa. "Spirited patriots" can also reason that it's better to live to fight another day---maybe go underground, an insurgency.
11.19.2008 8:48pm