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Saturday, August 25, 2007
Bill's Opinion Letter on LiabilityJuly
4, 2007 Andrew Jackson White
House Washington, DC Dear
Andy:
Thank you for your request regarding my opinion related to liability in the Internal Revenue Code.
I want to inform you that I am not an attorney but I am an experienced paralegal with over twelve years of experience
in litigating with the IRS. I also have a Master of Arts in Communication and I have been writing letters
on the syntax of the Internal Revenue Code for five years. I currently have six published wins on my own case in the Tenth
Circuit Court of Appeals against the IRS. The cases are as follows:
1. Church of World Peace, Inc. v. IRS, 715 F.2d
492.
2. United States v. Church of World Peace, 775
F.2d 265.
3. Conklin v. United States, 812 F.2d 1318. 4.
U. S. v. Church of World Peace, 878 F.2d 1281 5.
Tavery v. United States, 897 F.2d 1032
6. Conklin v. C.I.R., 897 F2d 1027.
Back in the late 70's, I set up a home church, donated to it and took a tax deduction. The IRS
attacked me and I have been winning ever since. Several years ago I got back over $15,000 in a refund lawsuit.
I have discovered very interesting issues about the Income Tax and for five years I have offered a reward of $50,000
to anyone who can show me the following:
1. What statute makes me liable to pay an income tax. 2. How I
can file a tax return without waiving my Fifth Amendment Rights.
To date, no one has taken me up on the offer. Since I am not an attorney, I suggest that you consult
with an attorney and see if I am right. If your attorney can prove me wrong, you can win the $50,000.
My opinion follows:
My opinion is: You are NOT made liable to pay an income tax under Title 26,
the Income Tax Code. The reason is that the Internal Revenue Code (The Tax Law) does not contain a code section (statute/law)
that states such a requirement. Furthermore, the filing of an income tax
return is "voluntary." However, if you do not volunteer, the IRS can file a return for you under
26 USC 6020(B) and they can collect from you using a variety of procedures
which the courts will support; therefore, it is important that individuals who choose not to
voluntarily waive their Fifth Amendment Rights by filing 1040 Returns, post a bond against any 6020(B)
assessment if they wish to avoid assessment difficulty in the future. I
can certainly appreciate your need for information on the subject of federal income taxes, a subject that "naturally"
fosters substantial confusion among the public. While your question appears simple and basic enough, it mandates a course
of analysis that takes us to the very source of the tax law, an area that few professionals dare to tread as it takes careful,
orderly analysis. I believe I have succeeded in cutting through the maze of confusion surrounding the tax
laws to arrive at the correct conclusion: INDIVIDUALS ARE NOT REQUIRED TO FILE AN INCOME TAX RETURN FORM 1040. FILING THESE
RETURNS IS COMPLETELY VOLUNTARY.
The key to "cutting through the maze" is knowing where to start cutting. If someone handed
you the 2,000- page Internal Revenue Code and said, "Go find the code section that requires one to file a return,"
would you, as a lay person, know where to start looking? The Code contains over 10,000 code sections! Here's how you start
- you must follow the directions in the Internal Revenue Service's official publication to the public, known as Notice
#609. This notice directs you to specific code sections in the Internal Revenue Code on this matter.
Before we look at the Internal Revenue Code sections given us by the IRS, let me acquaint you with
the background to Notice #609 which is entitled, "Privacy Act and Paperwork Reduction Act Notice." The IRS is required
to send you this Notice #6O9 by the Privacy Act Law of 1974 (5USC 552a, Public Law 93-574), which states in Sec. 5(e)(1):
"Each agency that maintains a system of records shall... (3)
Inform each individual whom it asks to supply information...
(a) The authority which authorizes the solicitation of the information and whether disclosure of
such information is mandatory or voluntary,
(b) The principle purpose or purposes for which the information is intended to be used,
(c) The routine uses which may be made of the information,
(d) The effects on him, if any, of not providing all or any part of the requested information..."
Based on the above requirements we can now look at the IRS' Notice #609 and go directly to their
reference to their legal right to ask for information, which states:
"Our legal right to ask for information is Internal Revenue Code sections 6001, 6011 and 6012 and their regulations.
They say that you must file a return or statement with us for any tax you are liable for." (emphasis
added)
In the second sentence, the IRS is in effect saying that IF you are "liable" (responsible) by statute for
a particular kind of tax, you must then file. Let's take a look at the three code sections quoted above:
SEC. 6001.
NOTICE OR REGULATIONS REQUIRING RECORDS, STATEMENTS, AND SPECIAL RETURNS. Every
person liable for any tax imposed by this title, or for the collection thereof, shall keep such records, render such statements,
make such returns, and comply with such rules and regulations as the Secretary may from time to time prescribe.
Whenever in the judgment of the Secretary it is necessary, he may require any person, by notice served upon such person
or by regulations, to make such return, render such statements, or keep such records, as the Secretary deems sufficient to
show whether or not such person is liable for tax under this title. The only record which an employer shall be required to
keep under this section in connection with charged tips shall be charge receipts and copies of statements furnished by employees
under section 6053(a). SEC. 6011.
GENERAL REQUIREMENT OF RETURN, STATEMENT, OR LIST.
(a) General Rule. When required by regulations prescribed by the Secretary any person made liable
for any tax imposed by this title, or for the collection thereof, shall make a return or statement according to the forms
and regulations prescribed by the Secretary. Every person required to make a return or statement shall include therein the
information required by such forms and regulations.
SEC. 6012. PERSONS REQUIRED TO MAKE RETURNS OF INCOME
(a) General Rule. Returns with respect to income taxes under subtitle A shall be made by the following:
(1)(A) Every individual having for the taxable year gross income which equals or exceeds the exemption amount, except
that a return shall not be required of an individual -- Note
that Sec. 6001 refers to "Every person liable for any tax imposed by (the Code)...." and Sec. 6011 refers to "...any
person made liable for any tax imposed by (the Code)...." Also note that neither of these two code sections state who
is liable (responsible) for submitting an income tax return, form 1040. Again, Notice #6O9 says that these
code sections state "that you must file a return or statement with us for any tax you are liable for." This means
that before there can be a lawful requirement for you to file a return, you must be found to be liable or responsible as the
individual designated to complete the return for the particular type of tax the IRS is attempting to collect.
At this point, allow me to rephrase your question to me in your letter to assist you in focusing
on my answer and conclusion: Am I, as
an individual, liable to pay the income tax or responsible to file (by any Internal Revenue Code statute) an individual income
tax return form 1040?
The answer is "No," based on the first two code sections (6001 and 6011) the IRS referred us to in their
Notice #609. And from reading section 6012, the answer is still "NO" as the word "liable" is not even
mentioned there. I'll comment more on 6012 later.
The emphasis, for the moment, is on sections 6001 and 6011 and whether or not an individual is "liable" or
"made liable." Both sections refer to a person being "liable for any tax imposed by this title." Obviously,
these sections are directing you to go elsewhere in the Internal Revenue Code (Title 26) to find a "tax imposed"
and a code section describing who is "liable" for the tax imposed. Thus we go to another part of the Code, "Subtitle
A, Income Taxes, Chapter 1, Part I - Tax Imposed on Individuals." In sections 1(a) through 1(d) taxes are imposed on
"taxable income" of various individuals, e.g., married, single, etc, but there is no mention of the individuals
being "liable" or responsible to file in these sections or any other subsequent code sections in all of Subtitle
A, "Income Taxes."
The conclusion, then, is that there is no code section that makes one liable in Subtitle
A, Income Taxes, or in Subtitle F, code sections 6001, 6011 and 6012. By the way, Subtitle F is entitled, "Procedure
and Administration" which infers that "procedurally," there is a sequence of steps that the IRS must follow
in their tax collection "administration, i.e., they must first show the individual to be "liable" or "made
liable" (as set forth in sections 6001 and 6011) before the individual can be shown to have a "tax liability"
(some undetermined amount based on "gross income;" as set forth in Section 6012). In other words, Section 6012 comes
into play as the second administrative step by the IRS only after they have satisfied the first step. Section 6012 begins
a series of steps involved in the calculation of one's "tax liability." Said another way,
you cannot have a tax liability and be required to pay a tax if you have not first been found to be "liable."
And to emphasize the obvious, there is no way Section 6012 can make you "liable!"
Therefore, the IRS is "stopped dead in their administrative tracks" at the first step and cannot legally
enforce assessment and collection of any individual income tax at all on a form 1040. The first sentence of section 6012 confirms
this as it refers to "income taxes under Subtitle A." And since no one is made liable under Subtitle A for the filing
of income tax returns, section 6012 becomes immediately and entirely irrelevant as a "second administrative step."
What I have just conveyed to you is not theory...it is fact. The administrative procedure set forth
by the Privacy Act Notice is the same for the other types of tax found in the code as there are code sections that determine
and describe who is liable to file and pay the tax. Here are some examples:
Sec. 4401(a) imposes a tax on wagers (gambling bets) and
Sec. 4401(c) sets the requirement for who shall be liable for the tax; that is, who shall
pay the tax:
Sec. 4401(a) states:
"Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under
this subchapter. . ."
Other sections of the Code specifically impose a tax, and then distinctly specify who is liable
to pay the tax:
Sec. 4261(a) imposes a tax, and
Sec. 4261(d) specifies who is liable to pay it. Sec.
4611(a) imposes a tax and
Sec. 4611(d)(1)(2)(3) specifies three separate persons who are liable to pay it.
Sec. 4971(a) imposes a tax and specifies who is liable to pay it. Sec.
4986(a) imposes a tax and
Sec. 4986(b) specifies who is liable to pay it. Sec.
5001(a) imposes a tax and
Sec. 5005(a) specifies who is liable to pay it. From
this foundation, we can compare the sections in Subchapter A, Income Taxes:
Sec. 1(a) "There is hereby imposed on the taxable income of every married individual who makes a single return
jointly with his spouse under Sec. 6013, and every surviving spouse, a tax . . ."
Sec. 1(b) "There is hereby imposed on the taxable income of every individual who is the head of a household ...
a tax ..."
Sec. 1(c): "There is hereby imposed on the taxable income of every
married individual who does not make a single return jointly ... a tax ..."
Again, as you can see, the tax imposed in each of the above sections is on "taxable income" a technical,
legal term and not specifically on any individual. No specific section can be found that specifies who is liable for each
of these income tax sections. But it is obvious that there are quite a number of individuals that are liable to file returns
for various taxes in the code. These individuals are known as "taxpayers." This term has a special
and technical definition in the Code:
Sec. 1313(b) defines "taxpayer" this way:
"Notwithstanding Sec. 7701(a)(14) the term 'taxpayer' means any person subject to a tax under the applicable
revenue law." and Sec. 7701(a)(14) says:
"the term 'taxpayer' means any person subject to any internal revenue tax."
Essentially, in order for an individual to be a "taxpayer," he would have had to become
liable (pursuant to 6001 and 6011) from some section of the Code other than Section 1. But there are no such sections.
What I am saying here is that an individual becomes a "taxpayer" (subject to the tax laws)
the instant he becomes "liable" to make the return. Until that point in time, the individual remains "exempt
from taxation." As the Supreme Court said, the language of the taxing statutes must be clear and cannot be enlarged by
implication: "Keeping
in mind the well settled rule that the citizen is exempt from taxation unless the same is imposed by clear and unequivocable
language, and that where the construction of a tax law is doubtful, the doubt is to be resolved in favor of those upon whom
the tax is sought to be laid..."
Spreckles Sugar Refining Co. v. McClain,
192 U.S. 397 at 416; 24 S.Ct. at 382 (1904); 48 L. Ed. 496.
and: "In
the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond
the clear import of the language used, are to enlarge their operations so as to embrace matters not specifically pointed out.
In case of doubt they are construed most strongly against the Government and in favor of the citizen."
Gould v. Gould, 245 U.S. 151, 153 (1917); 38 S.Ct. 53; 62 L.Ed. 211.
As you might agree, the taxing statutes given us by the IRS in their Privacy Act Notice are as "clear
as mud" to the average layperson reading it for the first time, not knowing how to analyze and focus on the essential
aspects. But with my step by step analysis thus far, we have accomplished "major surgery" in
cutting through the IRS' maze of confusion with respect to whether or not individuals are "liable" or "responsible"
to make tax returns. It has become obvious that for most individuals, Code Section 6012 is not relevant...that
it is merely a "red herring," a distraction, that the IRS threw in to heighten the maze of confusion which they
constructed. The IRS threw in section 6012 in October, 1986, and for all the years prior to 1986, their Privacy Act Notice
only consisted of section 6001 and 6011 which refers, of course, to the primary issue of whether one is "liable"
to make the return.
You can see the importance of understanding the meaning of the term "liable," and how
it is a critical element in the IRS' taxing procedure. You can see how it is a false premise to believe that one automatically
becomes "liable" because he made income. To prove this fallacy, we look at the Gift Tax. The donor or giver of the
monetary gift is liable for the tax, not the recipient. Section 2502(c) verifies this. In other words, it does not matter
if you made a ton of "income", 'YOU ARE NOT LIABLE BECAUSE THE CODE DOES NOT MAKE YOU LIABLE, THEREFORE, YOU
ARE NOT REQUIRED TO DO ANYTHING. That is, you are not required to "make returns, keep records, or make statements"
to or for the IRS
I've pointed out and explained to you the basic fact that you are not liable by statute. There
is, however, another way that you can be "made liable" (as referred to in section 6011). You can volunteer. You
can, by your actions, consent to be liable (responsible) for both the tax return and the tax liability. How do you volunteer
to become liable? Simple...just sign your name on a government form known as a 1040 Individual Income tax return. In one fell
swoop of your own pen, you have just been "made liable" (as it says in section 6011 of the code) and you now take
on the distinguished status and title of "taxpayer." As a "taxpayer," guess what the IRS has in store
for you, what with their myriad of statutory penalties and impositions. Remember the definition of "taxpayer?" You
are "subject to" - perhaps "subjected to" would be more appropo. The
Appeals Court said it clearly as a principle of law:
"When one files a tax return showing taxes due, he has, presumably, assessed himself and is content to become
liable for the tax, and to pay it either when it is due according to statute, or when he can get the money together.
Lyddon & Company v. U.S., 158 F.Supp. 951, at 953
This cite also refers to the principle of "self- assessment," which simply means that
you want to make the IRS' job of collecting taxes much easier by doing all the paperwork and calculations by yourself.
Since you now know there is no absolutely no Internal Revenue Code Section that requires you to file (says that you, as an
individual are "liable")-a section that says you are liable to file a return, then it is obviously a voluntary act.
The fact that filing a return is voluntary is easily verified by reading the various IRS Commissioners' statements
over the years and the IRS' Mission statement itself, entered into law (The Federal Register) in March of 1974.
Just a few of these statements follow:
"Each year American taxpayers voluntarily file their tax returns and make a special effort to pay the taxes they
owe." Johnnie M. Walters, IRS Commissioner (1971 Internal Revenue 1040 Booklet)
"Our tax system is based on individual self assessment and voluntary compliance."
Mortimer Caplin, IRS Commissioner (1975 Internal Revenue Audit Manual)
"The mission of the Service is to encourage and achieve the highest possible degree of voluntary compliance.
Donald C. Alexander, IRS Commissioner (Federal Register, March, 1974)
"The IRS's primary task is to collect taxes under a voluntary compliance system."
Jerome Kurtz, IRS Commissioner (1980 Internal Revenue Annual Report)
"We have a voluntary compliance system"
Fred Goldberg, IRS Commissioner (Ted Koppel show, ABC news, April 13, 1990)
And, from the highest authority, the United States Supreme Court:
"Our system of taxation is based upon voluntary assessment and payment, not upon distraint." (emphasis added)
Flora v. U.S., 362 U.S. 145, 176 (1959)
This principle of law, i.e., that our tax system is based upon voluntary assessment has been emphasized and relied
upon in subsequent appellate court cases also. The reason that the courts and the IRS advise that it is voluntary, is that
if it were mandatory, there would be a violation of your rights, particularly, the First, Fourth and Fifth.
The First Amendment involves your freedom to speak. It also includes your right not to speak (to your government on
a form 1040). Forcing you to speak on a 1040 would violate your First Amendment Right.
The Fourth Amendment is your right to privacy - your right to be secure in your person and papers. Compelling you to
produce your personal financial information and records, etc., without a lawful court order would violate your Fourth Amendment
right.
The Fifth Amendment states that "No person...shall be compelled in any criminal case to be a witness against himself,"
This simply means that you cannot be compelled to give information (on a form 1040): as that act is equivalent to being a
witness against yourself. The IRS can take any information you give them and turn around and use it against you under any
circumstances, both civilly and criminally. In an instant, they can have you under criminal investigation and potential indictment.
Therefore, compelling you to give information (evidence) against yourself would violate your Fifth Amendment right.
Code section 6103(h) and (j) says that tax returns and return information may be given to the U.S. Attorney and Justice
Department for criminal prosecution. In fact, even the IRS' Privacy Act Notice so states: "We may give the information
to the Department of Justice and to other Federal agencies, as provided by law." Obviously, this is a warning to you...almost
like a "Miranda Warning." If you choose to disregard the warning and waive your right to remain silent and your
right to privacy, understand that it is your choice...solely. Now you know why "our system of taxation is based on voluntary
assessment and payment." You also know why you were never made "liable" by the code in the first place. By
making you liable, the IRS would have created a full requirement for you to submit information on the 1040, thereby "compelling
you to be a witness against yourself," in direct violation of your rights.
You can see now that it is essential that you know and understand your Constitutional rights. Integral to your own
"research" on the income tax is that you obtain a copy of the United States Constitution and study not only the
entire Bill of Rights but also the relevant Articles on taxation. In this opinion letter I have covered what I believe to
be the essential elements of the requirements of the income tax system. They are relatively simple, as you have seen, once
analyzed and broken down to the elements.
Again, we started (and ended) with the IRS' own Privacy Act Notice to you whereby the IRS "tried" to
comply with the requirements of the Privacy Act Law of 1974. Their efficiency in doing so left a lot to be desired as their
Notice #609 fell short, particularly in telling you plainly whether you were "liable" or not, i.e., whether you
were required to give the requested information or not. For those who even take the time to read this important IRS notice,
it is confusing and misleading, at best. The clearest aspect of their notice was their telling you that
they can give the information to the Department of Justice and to other federal agencies. I would
like to again point out that on the whole, our system of tax laws is deplorably confusing to everyone, even the IRS. A recent
poll, whose results were nationally publicized this year, showed that the IRS was incorrect 39% of the
time in their answers to fairly simple questions posed by citizens. Equally "unfortunate," is that the professional
community is confounded by the code and the various tax reform acts heaped upon them. This problem was
apparent a decade ago when the Chief Justice of the Supreme Court of West Virginia, Richard Neely, commented on taxes in his
book, "How Courts Govern America." He said, "In 1978, I attended a seminar on federal estate and gift tax sponsored
by the American Law Institute, where the Internal Revenue Service lawyers responsible for this area frankly confessed that
they did not understand the Tax Reform Act of 1976...Not only did they not understand the law, they opined that the Congress
which wrote it did not understand it and that the courts would seem to understand it only because the courts make it up as
they went along and pretend to understand it."
Also, during the Nixon Administration, Johnnie M. Walters, IRS Commissioner at that time, made a pitch for simplicity.
Walters said, "I do not care whether it is a flat tax, a value-added tax, or a consumption tax, the complexities
and perceptions of our present system are causing larger numbers to wander off the reservation. We cannot
afford that." The tax laws were complicated then, as they are now. There has never been such a thing as tax "reform!"
So what is the government's posture today, after having admitted that the income tax system is voluntary? The government
is desperate...based on remarks such as that from Roger M. Olsen, Assistant Attorney General, Tax Division, Department of
Justice, where he said last May (to a group of professionals), "We encourage voluntary compliance by scaring the heck
out of you." Olsen, in so many words, is not only admitting that the system is voluntary, he is admitting that the tax
system today can only "work" if they use Gestapo tactics against the American people.
President Reagan himself spoke out in a speech in May of 1985 when he said, "The current (tax) system just doesn't
work anymore." He further said, "Our federal tax system is, in short, utterly impossible, utterly unjust and completely
counter-productive." He went on to infer that the "system itself is a cheat.", IRS Commissioner
Roscoe Egger (1984), also expressed this truth when he said in Nov. of 1984, "Any tax practitioner, any tax administrator,
any taxpayer who has worked with the Internal Revenue Code knows that it is probably the biggest 'mishmash' of statutes
imaginable. Congress, various Administrations and all the special interest groups have tinkered with it
over the years, and now a huge assortment of special interest and pet economic theories have been woven into the great hodge-podge
that is today's Internal Revenue Code." Members of Congress are cheating the middle-income citizens and placing the
tax burden upon them. The United States Supreme Court hit the nail on the head as long ago as 1974, in the case of Loan Association
v. Topeka: "To
lay with one hand the power of the government on the property of the citizen, and with the other to bestow it on favored individuals...is
none the less robbery because it is done under the forms of law and is called taxation."
Members of Congress are cheating and robbing the majority of citizens, the middle-income class and placing a tremendous
tax burden upon them. This unfairness has reached epidemic proportions. Special interest groups are still
being catered to. Recently, a top Philadelphia newspaper ran a feature story exposing how certain Congressmen, through their
tax-bill writing committees, offered tens of billions of dollars in tax dollar savings to the rich and powerful. Secret exemptions
included in a "tax shelter investment" bill resulted in a $47 million break for friends of George Bush and George
Shultz! Briefly, the story goes like this: A 562 foot passenger liner was bought in 1980 and was turned into a state of the
art ship at a cost of $47 million. It was offered to a group of wealthy investors as a "tax shelter investment"
and operated at an artificial loss -- for tax purposes -- of $436 million in '84 and '85. When the tax reform act
of '86 made major changes (amendments) in the laws detrimental to artificial losses, this "elite" group needed
"help"....An amendment was provided and is found in the 925 page Tax Reform Act as follows:
... The amendment made by section 201 shall not apply to a 562 foot passenger cruise ship, which was purchased in 1980
for the purpose of returning the vessel to the United States service, the approximate cost of refurbishment of which is approximately
$47 million".....
The beneficiaries of his huge tax break are none other than the Bechtel family, who just happens be the former employers
of George Shultz! I could go on with other detailed examples of "criminal" activity practiced daily by our elected
public servants in Congress, but I do not want to digress too far from the primary issues in this letter.
The reason I am enlightening you with news of Congress' and the IRS' scams is because you need to be aware
of the "larger picture," particularly if all of what I have said is totally new to you. By being knowledgeable you
are in a better position to help correct some of the problems and wrongdoing that are being perpetrated in America today.
The solutions have to do with how you exercise your God-given rights on a private and public basis.
I have discussed subjects that are "controversial' and be aware that certain ignorant bureaucrats...the IRS,
for example, may not always treat you kindly, particularly if you decide not to file tax returns or volunteer for audits.
But do not allow yourself to be intimidated by any bureaucrat at anytime. Knowledge of the law breeds confidence, and confidently
exercising your Constitutional rights is essential to maintaining your freedom and protection against bureaucrats who violate
due process of law.
If you are contemplating a "non-filer" position, please exercise "due diligence." Seek a number
of professional opinions and continue your research in good faith as there is always new information to strengthen your foundation
of knowledge. Be sure that the advice you receive is sound and credible. Do not, for example, settle for verbal, off-the-cuff
remarks. If a professional is not willing to put his advice in writing and substantiate it with sound, detailed legal analysis,
steer clear of him, as any advice he could give you would tend to be unreliable.
As a final point, even the IRS will not claim responsibility for their advice to you on the Code, especially when they
are dead wrong. President Reagan attested to this when he said in a 1984 Associated Press (AP) release:
"The government has the nerve to tell the people of the country, 'you
figure out how much you owe us - and we can't help you because our people don't understand it either (the Code) -
and if you make a mistake, we'll make you pay a penalty for making the mistake.'"
And to further ensconce themselves in their "ivory tower," the IRS came up with Publication 17; which states:
"The publication covers some subjects on which certain courts have
taken positions more favorable to the taxpayers than the official position of the Service. Until these
interpretations are resolved by higher court decisions, or otherwise, the publication will continue to present the viewpoint
of the Service,"
The above is a disclaimer and it is also a tacit admission that IRS publications
do not necessarily present the law, but only the law as they want you to understand it. The
final twist in the IRS maze comes in IRS Publication 21, where they essentially tell you that you must
decide whether you are required to file or not. Ultimately, the decision of whether to file tax returns is truly your responsibility.
In this letter I have given you my opinion, i.e., that you are not liable for the Federal Income
Tax by statute and you are not required to waive your Fifth Amendment Rights on a 1040 Return, and I have substantiated my
suggestions so that you may fully rely on it and utilize it as a springboard to further your knowledge and research in this
area.
Since I am not an attorney, but a paralegal, I must advise you to seek legal counsel from a licensed attorney on the
above issues. I must also advise you that, even though there is no statute that makes individuals liable
to pay an income tax and since a requirement to file returns would have serious Fifth Amendment contradictions, the IRS will
continue through double-speak and brute force to enforce the concept that individuals are "required" to voluntarily
waive their Constitutional Rights and assesses themselves. Remember also, that individuals who do not file may be subject
to criminal and civil penalties in spite of the above argument if the IRS claims that they owe substantial taxes.
For this reason, I suggest that if you are an employee, you allow the employer to send withholding to the IRS on your
behalf and if you are an independent contractor, working on a 1099, I suggest that you post a bond against any assessment
that the IRS may make for you under 26 USC 6020B. If you wish to contest issues with the IRS, you will
then be in an offensive position instead of a defensive position. Since
we are a Nation of Sheep, I don't expect the situation to change anytime soon. If you find an attorney
or anyone else that can prove I am wrong, please let me know. If
you have any further questions, please do not hesitate to contact me. Sincerely, William T. Conklin, M. A.
Saturday, August 18, 2007
Bill's opinion letter on words and phrases July 4, 2007 Ben Franklin Philadelphia, Penn Dear Ben: Thank
you for your recent request concerning the definition of certain words and phrases found in I.R.S. publications,
various code sections of the Internal Revenue Code (Title 26) and in relevant court cases. First, allow me to share my professional background with
you. I am a communication expert and have made an extensive study of the morpho-syntax of English, i.e.,
that branch of linguistics that deals with the internal structure and forms of words:
with syntax, it forms a division of grammar. ("syntax" deals with the relationship of words in
sentence structure). My work also involves the study of the meanings of words and phrases
as they are used in context in English composition. I have a Master's Degree from
the University of Colorado in Communications and I have over fourteen years of experience teaching
English and Communications at the elementary, junior-high, high school, and College levels. I can appreciate your confusion in attempting to understand
the thoughts and meanings the I.R.S. is trying to convey to you! Actually, you are not alone. In fact, you are in the illustrious
company of former I.R.S. Commissioner Roscoe Egger, Jr., who said on Nov. 30, 1984, "Any tax
practitioner, any tax administrator, any taxpayer who has worked with the Internal Revenue Code knows that
it is probably the biggest 'mishmash' of statutes imaginable." President Ronald Reagan also empathizes with you based on his public statement
in 1984, "the government has the nerve to tell the people of the country, 'you figure out
how much you owe us and we can't help you because our people don't understand it (the I.R.S. Code) either
and if you make a mistake, we'll make you pay a penalty for making the mistake.'"
There you have it, our top officials honestly admit that the Code and the tax laws are unintelligible; they ought
to know they deal with the problem day in and day out! I
would like to advise you at the outset that much of the I.R.S.' literature is unclear and misleading.
Over the years I have read a large volume of I.R.S. literature and publications, and have found
a substantial amount of printed matter, i.e., the I.R. Code, I.R.S. Publications and Notices,
etc., that can easily be misconstrued by laypersons. Along with a detailed response to your request,
this letter also serves as a warning: BEWARE OF EVERYTHING YOU READ THAT IS PUBLISHED BY THE I.R.S.
Always go to the authorities, i.e., reference materials and appropriate professionals for true
clarification. I am not an attorney, and due to
the fact that we are dealing, on occasion, with certain Internal Revenue Code sections, it would
be advisable also to obtain an attorney's legal opinion as to the meanings of certain code sections.
Incidentally, I also respond to attorneys as I receive their requests concerning the meaning of certain
words and phrases in these code sections. For
the purpose of this opinion, three sources for the definitions were used.
They are:
1. Webster's New Universal Unabridged Dictionary
Deluxe Second Edition
2. Black's Law Dictionary
Fifth Edition
3. The Internal Revenue Code of 1954 (1987 Edition) My opinion follows each set of definitions given for each word or phrase. ________________________________________________ voluntary
- context: "Our system of taxation is based upon voluntary assessment and payment, not distraint." (Flora v.
U.S., 362 U.S. 145)
Webster's p. 2049
1. brought about by one's own free choice; given or done of one's own free will; freely chosen or undertaken. 7. arising in the mind without external constraint;
spontaneous. 8. in law,
(a) acting or done without compulsion or persuasion;
Black's Law p. 1413
Unconstrained by interference; unimpelled by another's influence; spontaneous; Acting of oneself. Coker v.
State, 199 Ga. 20, 33; S.E. 2nd 171, 174.
I.R. Code (contains no definition) In
my opinion, the word "voluntary" means something done by an act of free choice. _____________________________________________ compliance - context: "Our tax system is based on individual
self assessment and voluntary compliance." (Mortimer Caplin, former I.R.S. Commissioner) Webster's p. 371 1. the act of complying;
a yielding, as to a request, wish, desire, demand or proposal; concession; submission. Black's Law p. 258
Submission, obedience, conformance.
I.R. Code (contains no definition) In
my opinion, the word "compliance" means obeying or yielding to something. __________________________________________________ voluntary
compliance - (context: see above) Note: There is no definition of this phrase from any source. Therefore
my opinion is based on the definition of each separate word. In my opinion, the phrase "voluntary compliance" means freedom to choose whether
or not to assess oneself or to yield to a self-assessment system. Before the term "compliance"
can come into play, practically, a person must have first "volunteered" to assess
himself a tax, otherwise, "compliance" remains a moot issue. In other words, compliance,
presumably with tax laws, is irrelevant unless one volunteers to assess oneself and submit said self
assessment to the Internal Revenue Service, as the terms operate sequentially. __________________________________________________ required - context: "ALSO, ANSWER THE QUESTIONS ON THE BACK IF YOU ARE NOT REQUIRED
TO FILE A RETURN FOR THE TAX PERIOD SHOWN." (I.R.S. form letter request for information re.
Form 1040) Webster's
p. 1538 (require) 1. to
demand; to ask or claim as by right or authority;
3. to order; to command; to call upon to do something;
Black's Law p. 1172 (require)
to direct, order, demand, instruct, command, claim as by right or authority. I.R. Code (contains no definition) In my opinion, "required" means when one is compelled to do something
by written authority; in this case, file a tax return. Further, when something is "required" by law, there is usually a corresponding
penalty attached for not doing the "required" act. As a check, you may want to see whether there
is a penalty for not filing an income tax return. must
- context: "You must fill in all parts of the tax form that apply to you." (I.R.S. Notice 609, Rev.
Oct. 1986) Webster's
p. 1185
an auxiliary used with the infinitive of various verbs to express: (a) compulsion, obligation, requirement, or necessity;
as, I must pay her; (b) probability; as, then you must be my cousin; (c) certainty or inevitability; as, it must have rained
while we were in. Black's
Law p. 919
This word, like the word "shall" is primarily of mandatory effect (cite omitted)...and in that sense is
used in antithesis to "may." But this meaning of the word is not the only one, and it is often used in a merely
directory sense, and consequently is a synonym for the word "may" not only in the permissive sense of that word,
but also in the mandatory sense which it sometimes has.
I.R. Code (contains no definition) In
my opinion, the word "must," in this context, imparts a mandatory effect.
However, in legal usage the word "must" is often synonymously used for the word "may," according
to Black's Law above. Apparently the word "must" is a key
word and I believe it would be prudent for you to consult with legal counsel for its legal meaning
whenever it appears, especially in statutes. __________________________________________________ may - context: "However, we may give you other notices
if we have to examine your return or collect any tax, interest, or penalties." (I.R.S. Privacy Act Notice 609, Rev. Oct.
1986) Webster's
p. 1113
(b) possibility or likelihood; as, it may rain; (c) permission or chance; as, you may go; (e) wish, hope or prayer. Black's Law p. 883
An auxiliary verb qualifying the meaning of another verb by expressing ability, competency, liberty, permission, possibility,
probability or contingency,(cite omitted). Regardless of the instrument, however, whether constitution, statute,
deed, contract or whatever, courts not infrequently construe
'may' as "shall" or "must" to the end that justice may not be a slave to grammar.
However, as
a general rule, the word "may" will not be treated as a word of
command unless there is something in context or subject matter of
act to indicate that it was used in such sense. (cite omitted) In construction of statutes
and presumably in construction of federal rules the word "may" as opposed to "shall"
is indicative of discretion or choice between two or more alternatives,
but context in which
word appears must be the controlling factor. (cite omitted)
I.R. Code (contains no definition) In
my opinion, the word "may" means having a free choice between two or more alternatives. __________________________________________________ shall - context: "Returns with respect to income taxes under Subtitle A shall be made
by the following:..." (Sec. 6012, I.R. Code as referred to by I.R. Privacy Act
Notice 609, Rev. Oct. 1986)
Webster's p. 1666
(a) to express futurity in the first person, and determination, compulsion, obligation, or necessity in the second and third
persons; Black's
Law p. 1233
As used in statutes, contracts or the like, this word is generally imperative or mandatory in common ordinary parlance, and
in its ordinary signification, the term
"shall" is a word of command, and one which has always or which must be given a compulsory meaning; as denoting
obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable
significance of
excluding the idea of discretion, and has the significance of operating to impose a duty which
may be enforced, particularly if public policy is in favor of this meaning, or when addressed
to public officials, or where a public interest
is involved, or where the public or
person have rights which ought to be exercised or enforced, unless
a contrary intent appears. People v. O'Rourke, 124 Cal. App 752,
13P.2d 989, 992.
But it may be construed as merely permissive or directory (as equivalent to "may,") to carry out the legislative
intention and in cases where no right or benefit to anyone depends on its being taken in the imperative sense, and where no
public or private right
is impaired by its interpretation in the other sense.
Wisdom v. Board of Sup'rs of Polk County, 236 Iowa
669, 19 N.W.2d 602, 607, 608.
I.R. Code (contains no definition) In
my opinion, the word "shall" is generally used in the permissive
sense (first person) and is mandatory when used in the second or third person. However, in legal usage,
as it is used in the above statutory context, the word "shall" could mean "may" if a right is impaired
or violated (See Black's Law above). For a complete understanding of what "shall"
means in this legal context, I suggest you consult further with an attorney. __________________________________________________ assessment
- context: "Our system of taxation is
based upon voluntary assessment and payment, not upon distraint." (Flora v. U.S., 362 U.S. 145) Webster's p. 112 (assessment) 2. a method or schedule of assessing 3. an amount assessed Webster's p. 112 (assess) 1. to set or fix a certain sum against, as
a tax, fine or special payment; as to assess each citizen in due proportion; Black's Law p. 106 (assessment)
It is often used in connection with assessing property taxes or levying of property taxes. Also, the amount
assessed. Taxation: The process whereby the Internal Revenue
Service imposes an additional tax liability. If, for example, the IRS
audits a taxpayer's income tax return and finds gross income
understated or deductions overstated, it will assess a deficiency in
the amount of the tax that should have been paid in light of the
adjustments made. Black's
Law p. 106 (assess)
To ascertain; fix the value of. To impose a pecuniary (monetary) payment upon persons or property. To tax. I.R. Code (contains no definition) In my opinion, the word "assessment," as used in the
above legal citation, means the process or method by which a tax due is ascertained, i.e.,
by the individual "self assessment" method (see next definition). In another context, the word "assessment"
could mean "I.R.S. assessment." ADDITIONAL COMMENTARY:
In this context, it is my opinion that the assessment spoken of is the "self" assessment method
as the assessment is described as "voluntary," which means the free choice of an individual
to decide whether or not to assess a tax on his income), as opposed to a tax assessment on income made by the
I.R.S. and billed to the taxpayer (as described in Black's Law above). Note, however, that the definition of "assessment" in Black's Law
is defined only as "imposing) an additional tax liability" against the taxpayer based
on a determined "deficiency" (the amount of income tax still due and owing). In other words, there is no description
in this definition of an "initial or "original" income tax assessment that was imposed by the I.R.S.
or by the individual (i.e., self assessment).
In any event, I feel it important to inform you of the two methods of assessment: 1) a voluntary, self
assessment, and 2) an I.R.S. assessment made after a voluntary, self
assessment is made by the individual and the I.R.S. determines that the self assessment (resulting amount)
was deficient. For further enlightenment on these assessment methods I recommend you seek legal counsel. _________________________________________________ self assessment - context: "Our tax system is based on individual self assessment and voluntary
compliance."
(Mortimer Caplin, former I.R.S. Commissioner)
Note: There is no definition of this term from any source. In my opinion, the term "self assessment" means a method of ascertaining
an amount of tax where the amount is determined solely by the individual through his own efforts to
assess this tax upon his property, i.e., income, AFTER he has voluntarily decided to do
so. "Self assessment," in my opinion, is synonymous with "voluntary assessment"
(as found in the Flora v. U.S. court case above for "assessment") _________________________________________________ NOTE: IN THE REMAINING PORTION OF THIS OPINION I WILL ADDRESS
THOSE WORDS, SENTENCES AND QUESTIONS (FROM YOUR LIST) THAT COME FROM THE I.R.S.' PRIVACY ACT NOTICE
609 AND THOSE CODE SECTIONS THE NOTICE REFERRED YOU TO. _________________________________________________ person
- context (1): "Every person liable for any tax imposed by this title, or for the collection thereof, shall keep
such records, render such statements...,"
(Portion of Sec. 6001, Chap. 61, I.R. Code)
context (2): "Any person required under this title to pay any estimated tax, or required by this title or
by regulations made under authority thereof to make a return...," (Portion of Sec. 7203, Chap. 75, I.R. Code) Webster's p. 1338 1. an individual human being, especially as distinguished
from a thing or lower animal; an individual man, woman or child.
6. in law, any individual or incorporated group having certain legal rights and responsibilities. Black's Law p. 1028
In general usage, a human being (i.e., natural person), though by statute term may include a firm, labor organizations, partnerships,
associations, corporations,
legal representatives, trustees, trustees in bankruptcy, or receivers. I.R. Code, context (1): Definition found in "Chapter 79.--
Definitions"*
Sec. 7701(a)(1) Person. The term "person" shall be construed to mean and include an individual, a trust, estate,
partnership, association, company or corporation.
*Chapter 61 is the I.R. Code chapter containing code sections 6001 and 6011 in which context the word "person" is
found. Definitions for certain words in each chapter are usually found within the chapter. The word "person,"
however, is not defined in Chapter 61, thus, Chapter 79's definition holds. I.R. Code, context (2): Definition found in Chapter 75.
Sec. 7343. Definition of term "person." The term "person" as used in this chapter includes an officer
or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under
a duty to perform the act
in respect of which the violation occurs. context
(1): In my opinion, the term "person" as used in Sec. 6001 means all of the
entities listed in the definition of Sec. 7701(a)(1). The definition or answer you specifically seek,
however, depends on your "status," i.e., the descriptive title of who you are (nature, purpose
and function, being major characteristics of who you are). For the sake of rendering you an
answer, albeit hypothetical, I say that you are an "individual," based
solely on my brief assumption that you are a "live, breathing, walking, talking, thinking" human
being and because you signed your name on a letter without having "President"
or "Inc." after your name! context
(2): In my opinion, the meaning of the term "person" as used in Sec. 7203 is limited to the legal definition
set forth in Sec. 7343 (see above) for two reasons. First, there is no other definition for the term in Chapter
75, and second, within Sec. 7343 itself, the term "person" is construed to be limited to mean only an officer
or employee of a corporation, (etc.) - by the use of the word "includes" preceding "officer or employee."
In this context, the word "includes" by definition from Black's Law,
means to "confine within, contain," thus restricting the meaning to only that which is stated in the definition
of the term. NOTE:
FROM THIS POINT FORWARD, FOR FORMATTING PURPOSES, YOUR QUESTIONS ARE PRESENTED IN STATEMENT FORM: Definition of the word "liable" and meaning of the first
sentence of I.R. Code Section 6001. liable
- context: "Every person liable for any tax imposed by this title, or for the collection thereof, shall keep such
records, render such statements, make such returns, and comply with such rules and regulations as the Secretary from time
to time prescribe...."
(Portion of Sec. 6001, Chap. 61, I.R. Code)
Webster's p. 1042 1.
legally bound; answerable; responsible;
Black's Law p. 824
Bound or obliged in law or equity; responsible; chargeable; answerable; compellable to make satisfaction, compensation or
restitution. I.R. Code
(contains no definition) In my opinion, the word
"liable" means "responsible" and "bound by law." This sentence points out
that if a person is "liable" responsible), and the title (an I.R. Code section) designates said
person as "liable" (bound by law), then he must do those things, i.e., keep such records, make such returns,
etc., as set forth in Sec. 6001. Without careful scrutiny an individual could believe that the
word "liable" means "to owe" and that he must "pay" (a tax). The code section does not
discuss the payment of taxes, rather it serves to give the reader a clue as to what he must do if he determines he is the
"person liable." _________________________________________________
The I.R.S. Privacy Act Notice referred you first to Code Sec. 6001. The question is whether this code section
specifies that you are the person "liable." In my opinion, Sec. 6001 does not state that you are a "person liable."
It is non-specific. The phrase, "Every person liable..." does not specify that you
are the individual that is "liable" or that you belong to a category or group of "person(s) liable."
Rather the section implies that you have to look elsewhere in the "title" (Code) in order to find where
you are "bound by law" - specifically described as the "person liable" to collect taxes (if
you are an employer), keep records, render statements, make returns, and comply with certain
rules and regulations. ____________________________________________________
Definition of the term "made liable" and meaning of the first sentence of I.R. Code Sec. 6011. made liable - context: "(a) General Rule.
When required by regulations prescribed by the Secretary any person made liable for any tax imposed by this title, or
for the collection thereof, shall make a return or statement according to the forms and regulations prescribed by the Secretary...."
(Portion of Sec. 6011, Chap. 61, I.R.
Code) Note: There is no definition of this phrase
from any source. However, this phrase closely resembles the term "liable" above, which definition serves as a basis
for my opinion. In my opinion, the phrase "made
liable" means, like the above term "liable," that somewhere (elsewhere) in the I.R. Code there may be
a code section that binds you by law (making you "responsible") to do some or all of the
acts set forth in this Sec. 6011. Like Sec. 6001, there is no discussion of payment of taxes, so we
know that the phrase does not imply that one is responsible for payment of taxes. However, this phrase could also imply that there is more than one way that a person could be "made liable"
for any tax imposed, but no explanation is presented in this section. For example, a "voluntary
assessment" or "self assessment" (words previously defined) by the individual could be tantamount
to him becoming liable, i.e., being "made liable" by his own action. At this point, I must
defer this discussion of the ways or means by which persons are "made liable" as the legal aspects of this subject
can be more fully and appropriately advised you by an attorney or tax professional. ________________________________________________
The I.R.S. Privacy Act Notice also referred you to Code Sec. 6011. Your question is whether this section specifies
that you are the person "made liable." In my opinion, Sec. 6011 does not state that you are the person "made liable." It is
non-specific. The section implies that you have to look elsewhere in the code to see whether or not you are "made
liable" by law. THESE ARE
EXCEPTIONS, BUT EVEN SO, JUST ONE LAW, UNCLEARLY
WRITTEN, CAN CREATE SERIOUS CONFUSION IN OUR SOCIETY. I'LL
COMMENT FURTHER IN MY SUMMARY AND CONCLUSION. _________________________________________________ tax liability - (no particular context) Note: There is no definition of this term from any source.
Therefore, we will look to the definition of "liability:" liability - 1. the state of being liable. 2. anything for which a person is liable. 3. a debt; -Webster's liability - It has been defined to mean: all character
of debts and obligations (cite omitted) -Black's Law In my opinion, the term "tax liability" means a "tax debt," for example, a
specific dollar amount that is due and owing to the I.R.S. _________________________________________________
Difference between the terms "liable for a tax imposed"
and "tax liability." First,
let me briefly explain the term "tax imposed." To impose something simply means "to place upon,"
more specifically, "to place a burden (tax) upon something." Thus, being "liable for a tax
imposed" means being "responsible for/bound by law" for a tax that has been placed upon some item. Note
that the person liable is distinct from (not the same as) the item upon which the tax was placed. Also be
advised that the word "tax" as used in Sections 6001 and 6011, is used in a generic sense, that is, for whatever
type of tax is being imposed, i.e., alcohol tax, income tax, etc., and does not represent a dollar amount of tax. "Tax liability," as stated in my opinion immediately above,
means a tax "debt" - an amount owed. There is obviously a substantial difference between
the two terms. Another way to describe the difference between the two is that it is possible to be a "person
liable" for a type of tax and have no "tax liability" (debt) at all. But it is impossible
to have a "tax liability" if one is not a "person liable" for that type of tax. In other words,
only a person "liable" or "made liable" can possibly have a "tax liability." _________________________________________________ tax evasion (no particular context) Webster's (contains no definition) Black's Law p. 1310
Illegally paying less in taxes than the law permits; committing fraud in filing or paying taxes. Such act is a crime
under I.R. Code Sec. 7201. I.R.
Code (contains no definition) In my
opinion, "tax evasion" is when one fills out a tax return and lies (commits "fraud")
with respect to the information rendered on his tax return. Most people are aware, if they have filed
income tax returns, that they sign such returns under "penalties of perjury"
a sworn oath that they are telling the truth. Therefore, if they knowingly lie on the return and the result is
paying less in taxes, such act is deemed a crime under I.R. Code Sec. 7201, "Attempt to evade or defeat a
tax" (a felony). _________________________________________________
In summary and conclusion, all of the above-
listed definitions from the three authoritative sources are those that I deemed most relevant and appropriate, given the context
of the subject words and phrases. For those words and
phrases contained in various Internal Revenue code sections, heaviest reliance as to the meaning (my opinion)
was given to the definition contained in the Code due to the legal nature of the subject words in their specific
contexts. You have noted in this opinion that words such
as "must," "shall" and "person" actually differ radically in meaning, depending on their
context. Meanings differ between Webster's and Black's Law Dictionary for some,
and Black's Law even presented opposite meanings for some of the words, depending on context and if
used in a "legal" sense. Further, with
respect to the word "person," no definition exists in Chapter 61, the chapter that contains code sections
6001 and 6011 in which "person" is found. I was obliged instead to go to a more general
definition found in Chapter 79. Yet, the definition of "person" as used in section 7203,
is found in Chapter 75 of the Code, upon which I based my opinion. For accuracy in meaning
relative to context and subject matter, the definitions used for the subject words found in the I.R. Code were
taken, when existing, only from within the same Chapter in which they resided. Note, also, how the definition
of "person" differs radically between Chapter 75 and Chapter 79. Again, if one is not careful in researching
these legal definitions serious mistakes can occur, resulting in serious misunderstanding. Another interesting fact is that the Internal Revenue Code, the primary authority
on tax law, does not contain the definition of many important words and phrases; for example, the
terms "voluntary compliance," "self assessment" and "tax liability," to name a few. Many
I.R.S. publications over the years, including the mission of the I.R.S., describe the tax system as one of "voluntary
compliance," yet none define or explain the meaning of this very important term. This lack of adequate definitions (explanation) coupled with inconsistencies in
meanings and imparted to the public in language that is less than clear, all contribute to the public's
resulting confusion and misunderstanding of I.R.S. publications, notices and code sections. One could conclude
that it is not the I.R.S.' intention to clarify their meanings. In any event, as it is Congress who writes
these laws, I suggest you contact your Congressmen and inform them of those code sections which you feel are vague
and confusing. Ask them to explain the meaning and intent of each section and if the sections really
convey such meaning and intent. You can help them by pinpointing the source of your confusion. Indeed, confusion about tax matters continues to run rampant,
even among tax professionals. This unfortunate situation actually worsens with every "tax
reform." I've noticed that "uncertainty" (as to how to advise their
clients) is the "watchword" among professionals today. As laws become more complicated,
people become more confused. Confusion breeds chaos, and we are rapidly approaching chaos in our society. But
this trend can be corrected - don't give up. Continue to work with the system and try to help correct and improve
it. I cannot encourage you enough to seek professional
advice from knowledgeable and trustworthy attorneys and tax professionals who can fully apprise you of the legal
aspects and ramifications of those relevant portions of I.R.S. literature and tax laws. In any event I
sincerely hope your understanding of the subject items for which you sought my opinion has been greatly enhanced.
If you need further clarification on any item, please feel free to
contact me. Sincerely, _______________________________ William T. Conklin,
M.A.
6:38 am mdt
Sunday, August 12, 2007
Bill's Opinion Letter on his Tenth Circuit Case July 4, 2007 Honest Abe White House Washington, DC Thank-you for your recent request.
I appreciate your interest in my case in the 10th Circuit Court of Appeals. I am a Communication Expert and have made
an extensive study of the morpho-syntax of English. I have a Master's Degree from the University of Colorado
in Communications and I have over fourteen years of experience teaching English and Communications at the elementary,
junior-high, high school, and college levels.
In a recent case that I filed in Federal Court, the lower court and the circuit court ruled against my argument that individuals
waive their Fifth Amendment Rights when they file tax returns and took the position that my argument was frivolous because
the Fifth Amendment only applies to "compelled testimonial communication." The Circuit Court took the position that the income tax Form 1040 is not a "compelled
testimonial communication."
The content of the Circuit Court opinion and my analysis of the language of the court relating to the voluntary nature of
the Income Tax follow: The Tenth Circuit stated (in part)
the following: .....In granting the IRS' motion
for summary judgment, the court found: Conklin's argument that his refusal to sign his 1987 Form 1040 was
proper on the grounds that his signature would violate his Fifth Amendment Rights was rejected in Betz
v. United States, 753 F.2d 834, 835 (10th Cir. 1985) ("It is well settled that the Fifth
Amendment general objection (to filing a proper tax return) is not a valid claim of the constitutional
privilege.);
Conklin's contention that his classification by the IRS as an illegal tax protestor justifies invocation of
the Fifth Amendment privilege "misunderstands the nature of the ...privilege...which
protects against compelled testimonial communications...(and) (emphasis mine). Plaintiff
has wholly failed to persuade me that truthful completion of the IRS Form 1040 or any related forms would tend
to incriminate him." (R. Vo. II at p. 6).
On appeal, Conklin posits the following issues: "Whether an individual who has been classified as an illegal
tax protestor has a valid concern about waiving his Fifth Amendment rights when he signs a federal income tax return;"
"Whether an individual who has been advised by several attorneys that he will waive his Fifth Amendment Rights on a Federal
Tax Return should be penalized when he relied in good faith on the advice of counsel." The government responds that the
District Court correctly held that Conklin was liable for the $500.00 frivolous return penalty imposed under Section 6702.
Further, the government urges that we should impose sanctions against Conklin for bringing this frivolous appeal. We agree. ---------- As you can see, the Court has taken the position
that the Fifth Amendment does not apply to the Income Tax because the Income Tax is not a "compelled testimonial communication." Black's
Law Dictionary defines "compel" as follows: Compel: To urge forcefully, under extreme
pressure. The word "compel" as used in constitutional right to be free from being compelled in a criminal
case to be a witness against one's self means to be subjected to some coercion, fear, terror, inducement, trickery or
threat--either physically or psychologically, blatantly or subtly; the hallmark of compulsion is the presence of some
operative force producing an involuntary response. U.S. v. Escandar, C.A. Fla., 465
F.2d 438, 442.
Furthermore, the Random House Dictionary of the English Language defines "compel" as follows: 1.
To force, drive, esp. to a course or action. 2. To secure or bring about by force. 3. to force to submit; subdue
4. to overpower.
As an Expert on the English Language, it is my opinion that "compel" means to force or to require someone
to do something. A compelled action would be an involuntary action. The opposite of a compelled action is a voluntary
action.
The circuit Court has obviously, from an English language standpoint, sanctioned me because I have taken the position that
individuals are required to give the government information on 1040 Forms. The court has taken the position that providing
information to the government on 1040 Forms is not "compelled." If an income tax form is not "compelled"
or required, then it is voluntary.
For a more in depth analysis of the word "voluntary" and other words related to the Income Tax I suggest that you
order my opinion letter on the "Words and Phrases of the Internal Revenue Code." In other words, the Court has taken the position
that providing information on a tax return is not "compelled." Since "compelled" means "involuntary"
according to Black's Law Dictionary, then the Court has taken the position that providing information
on a 1040 Tax Return is voluntary. That is why the Court has ruled that the Fifth Amendment does not apply. The
Court sanctioned me for taking the position that individuals are required (compelled) to provide information (testimony) to
the government.
I suggest that you order a copy of the opinion from the Tenth Circuit Court of Appeals so that you will have your own official
version of a case in which a Circuit Court rules that the income tax form is not compelled (required).
You can order the case from:
United States Court of Appeals
Tenth Circuit
1823 Stout Street
Denver, Colorado 80257 Ask for a copy of the Order and
Judgment in Conklin v. United States of America, No- 94-1213. Curiously
enough, although the Court has taken the position in this particular case that providing information on Income Tax Forms is
voluntary, since this case is not published it cannot be used as law. I suggest, however, if you are one of the many
individuals in the country that believes that the Income Tax is not compelled that you order a copy of the appellate decision
and see for yourself that the Tenth Circuit agrees with you, even though they are not willing to let the world know their
thoughts on the issue. I have attached a copy of an opinion
letter that Attorney Guy Curtis has written to me analyzing this case. I suggest that you contact Mr. Curtis directly
and request that he write a personalized opinion letter addressed to you. Sincerely, William T. Conklin
6:23 am mdt
Sunday, August 5, 2007
Bill's opinion letter on Section 61(a) WILLIAM T. CONKLIN, M.A. COMMUNICATION AND LANGUAGE EXPERT 3296 Raleigh Denver,
Colorado 80212 (303)
455-0837 FAX
480-1799 Willieco@aol.com July 4, 2007 Thomas Jefferson White House Washington, DC Dear Thomas: Thank-you for your recent request. I appreciate
your concern as to the definition of income in the Internal Revenue Code. I am a Communication Expert and have made an extensive study of the morpho-syntax of English. I have a Master's Degree from the University of Colorado in Communications and I have
over fourteen years of experience teaching English and Communications at the elementary, junior-high, high school, and
college levels.
26 U.S.C. 61 (a) reads: "(Section
61 (a) GENERAL DEFINITION.--Except as otherwise provided in
this subtitle, gross income means all income from whatever source
derived, including (but not limited to) the following items: (1) Compensation for service, including fees, commissions, and similar
items. (2) Gross income derived
from business; (3) Gains derived
from dealings in property; (4)
Interest; (5) Rents; (6) Royalties; (7) Dividends;
(8) Alimony and separate maintenance payments;
(9) Annuities; (10) Income from
life insurance and endowment
contracts; (11) Pensions; (12) Income from discharge of indebtedness; (13) Distributive share of partnership gross income; (14) Income in respect of a decedent; and (15) Income from an interest in an estate or trust. By the structure of the above sentence, it
is indicated that the tax is on "all income from whatever
source derived." The word 'source' is the object of the preposition "from." The correct construction of the above, clearly indicates
that the taxes are NOT to be levied and collected on the "source." Source is not to be equated with income
as these terms are used in the above citation.
The phrase "including (but not limited to) the following
items: has been misinterpreted to be a phrase modifying the
word "income " not the word "source" in its sentence.
The rules of English composition govern the noun which is modified;
these rules are discussed below.
Participles are verbal adjectives which modify nouns. "Including"
is a participle. The verb "include" was converted
to a participle by adding the suffix 'ing' for the purpose
of describing a noun. The use of the word "including" in Section 61 (a) creates a participle phrase. There are two types of participle phrases:
restrictive and non-restrictive. The restrictive phrase
appears following the noun it modifies without commas. A restrictive phrase is an inextricable part of the sentence
because there are no commas. The non-restrictive phrase can be inserted or hooked-on to the sentence and is separated
by commas. It is parenthetical; it contributes to but does not change the meaning of the basic sentence. The non-
restrictive phrase can be eliminated with out changing the basic sentence. That is the purpose of setting it apart with
commas. In examining the opening
sentence of Section 61 (a), the preceding noun of the participle phrase, "including (but not limited to) the following
items..," is the word "source." Adjectives always modify the noun immediately preceding when the word
or phrase is placed with intervening commas. Restating the entire sentence by the accepted rules of English composition,
it says:...Gross income means all income from whatever source, including (but not limited to) the following items derived..." By changing the modifier "including (but
not limited to) the following items..," the taxing agencies have sought to increase revenues by taxing the source listed
(1)-(15), supra. The clear language of section 61 (a) supra, places a tax only on the INCOME DERIVED FROM the
LISTED SOURCES, NOT THE SOURCES THEMSELVES. I suspect that similar violations of the rules of English composition have,
in fact, created new law contrary to the express intent of Congress as written in this instance in the Internal Revenue
Code. Furthermore, the Sixteenth Amendment to the Constitution
of the United States of America states as follows:
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 language of the Sixteenth Amendment is clear in the
English sentence construction. English or language mechanics is something that even the IRS and the U.S. Attorneys cannot
change. You will see that the source of your livelihood is not the intended object of taxation. The tax is on income
only. The source of that income is not the subject of that taxation. Let us take a similarly professional
look also at the Sixteenth Amendment.
By its structure, the Sixteenth Amendment indicates that the tax is on "incomes", from whatever "source"
derived. In this instance, the word "incomes" is the object of the preposition "on." The word "source"
is the object of the preposition "from." In no way can this be construed to make the "source" the object
of the preposition "on." The introduction of the comma to separate the two prepositional phrases further widens
the gap between the meanings of the objects, "incomes" and "source." In so stating,
with the use of "on" in one instance and "from" in the other instance, it negates any confusion that
might lead one to believe that the tax would be levied and collected on the "source." The "source"
is not to be equated with " income" as these terms are used in the Sixteenth Amendment. Therefore, it can only be assumed from the above discussion
that IRC Section 61(a) lists sources of income; and the Sixteenth Amendment itself has authorized a tax only on income, but
not on the sources of income. Because compensation for services, including fees, commissions, and similar items are
defined by 26 U.S. C. 61(a) (1) as a "source" of income, the Sixteenth Amendment and the Internal Revenue Code have
not authorized a tax on compensation for services or any of the other sources listed under 26 U.S.C. 61 (a). If you have any additional questions,
do not hesitate to write. Sincerely, William T. Conklin, M.A.
4:37 pm mdt
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