Illegal Tribute or the Income Tax
For those of you who are submitting their tribute this week, I offer the following excerpt from a “Petitioners’ Response to Respondent’s Motion for Summary Judgment” filed in US Tax Court in 2015. For nearly a decade I have refused to pay tribute to our self appointed masters and will continue to do so. It is an ongoing legal, moral and constitutional fight for taxing my right to earn a living is wrong, forcing my charity is immoral and stealing from me to line the pockets of the connected is evil. Yes, it seems a David and Goliath thing but if all we ever do is comply, our bonds will only get heavier and our children will know only slavery. Our forefathers stood up to the immoral taxation of a great and powerful empire. As heirs to their legacy, can we do any less?
2. Paragraphs 5 and 6 of the Respondents Motion for Summary Judgement; The Respondent's quote of IRC §61(1) is an intentional misrepresentation of the nature and scope of the “income tax”. The Petitioners can only assume that the Respondent and his counsel know the law and are deliberately attempting to mislead the court as to its application to the Petitioners.
IRC section 61-Gross income defined (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:
The first Internal Revenue Code was published in 1939. That code was revised in 1954 and 1986. Except where subsequent formal enactments have explicitly amended or otherwise modified language found therein, such language is subordinate to the older, original laws. The preface of the 1939 law states the following: “The internal revenue title, which comprises all of the Code except the preliminary sections relating to its enactment, is intended to contain all the United States statutes of a general and permanent nature relating exclusively to internal revenue, in force January 2, 1939; also such of the temporary statutes of that description as relate to taxes the occasion of which may arise after the enactment of the Code. These statutes are codified without substantive change and with only such change of form as required by arrangement and consolidation. The title contains no provision, except for effective date, not derived from a law approved priori to January 3, 1939....The whole body of internal revenue law in effect on January 2, 1939, therefore, has its ultimate origin in 164 separate enactments of Congress. The earliest of these was approved July 1, 1862; the latest June 16, 1938....”
The meaning and application of the internal revenue laws of the United States have not changed from 1862 to the present. Its meaning and application cannot be inferred, implied or presumed to items or people not specifically or historically within the Code. Such presumptions have no legal effect. “26 USC §7806 Construction of title (a) Arrangement and classification No inference, implication or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title, nor shall any table of contents, table of cross references, or similar outline, analysis, or descriptive matter relating to the contents of this title be given any legal effect.”
The section of the 1939 Code that defines gross income is as follows; “Section 22(a): Gross income includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal; also from interest, rent, dividends, securities, or the transaction of any business carried on for gains or profits, or gains or profits from any source whatever.”
This section was immediately amended by the Public Salary Act of 1939 as follows:
SECTION 1. Section 22(a) of the Internal Revenue Code (relating to the definition of “gross income”) is amended by inserting after the words “compensation for personal service the following: (“including personal service as an officer or employee of a State, or any political subdivision thereof, or any agency or instrumentality of the foregoing).
This brought it into conformity with previous enactments of the “income tax”. The original “income tax” enacted on July 1, 1862 stated in section 86 “....there shall be levied, collected, and paid on all salaries of officers, or payments to persons in the civil, military, or other employment or service of the United states, including senators and representatives and delegates in Congress,....” The Revenue Act issued by Congress in 1921 defined “gross income” in section 213. “...the term gross income-(a) includes gains, profits and income derived from salaries, wages, and compensation for personal service (including in the case of the president of the United States, the judges of the Supreme Court and inferior courts of the United States, and all other officers and employees, whether elected or appointed, of the United States...”
Several things should be obvious from the previous readings of the law. First, if anyone who receives money for work receives “income” under the definition of “gross income”, certainly “an officer or employee of a State” its subdivisions or agencies would already be covered and their specific inclusion is redundant. Second, the “income tax” is applicable to “gains, profits and income derived from salaries, wages or compensation for personal service,..” Gross income is not the “wages salaries or compensation” but it is “gains profits and income” derived from those things. By statutory construction, “wages, salaries or compensation for personal service” are not gross income (and subject to taxation) but whatever “gains profits or income” may be derived from it. The Respondent is confusing the proper subject of the income tax-gains, profits and income derived from salaries, wages or compensation for personal service by an individual specifically connected to the Federal government- with the colloquial use of the term “income” believing that “gross income” means anyone anywhere who receives money as a consequence of exercising the right to engage in a common occupation.
Certainly the Respondent and his counsel understand statutory construction and its limits. The reason for the specific inclusion of terms relating to Federal connections and the limiting nature of the language in the Code is to ensure the “income tax” as detailed in 26 USC, is constitutional according to Article 1 section 9. It cannot be a direct tax or capitation (a tax on the right to engage in a common occupation) and therefore must be an excise tax. In other words, a taxable activity must result from the exercise of some privilege and not of a right. Contrary to what the Respondent may believe or assert, not everything that comes in constitutes “taxable income” according the 26 USC. Not only is the circumstance under which an individual enters into an employee/employer relationship and may participate in a taxable activity statutorily restricted, the definition by which an employee/employer relationship produces taxable wages is a very limited one. This is necessary to keep the federal income tax from violating Article 1 Section 9 of the United States Constitution which prohibits direct taxes and capitations without apportionment. This prohibits the income tax from falling on individuals such as ourselves engaged in common occupations. Please consider the following:
“It is elementary law that every statute is to be read in the light of the constitution. However broad and general its language, it cannot be interpreted as extending beyond those matters which it was within the constitutional power of the legislature to reach.” McCullough v. Com. of Virginia, 172 U.S. 102 (1898)
United States Constitution Article 1, Section 9 prohibits “capitations and other direct taxes” other than by the mechanism of apportionment. Article 1, Section 9: "No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."
“Capitations” are taxes on persons, and include taxes measured by revenue “...Albert Gallatin, in his Sketch of the Finances of the United States, published in November, 1796, said: ‘The most generally received opinion, however, is that, by direct taxes in the constitution, those are meant which are raised on the capital or revenue of the people;...’ He then quotes from Smith’s Wealth of Nations, and continues: ‘The remarkable coincidence of the clause of the constitution with this passage in using the word ‘capitation’ as a generic expression, including the different species of direct taxes-- an acceptation of the word peculiar, it is believed, to Dr. Smith-- leaves little doubt that the framers of the one had the other in view at the time, and that they, as well as he, by direct taxes, meant those paid directly from the falling immediately on the revenue;...’” Pollock v. Farmer’s Loan & Trust, 157 U.S. 429 (1895)
J.J.S. Wharton, Esq., Law Lexicon or Dictionary of Jurisprudence (1848) “CAPITATION: a tax or imposition raised on each person in consideration of his labour, industry, office, rank, etc. It is a very ancient kind of tribute, and answers to what the Latins called tributum, by which taxes on persons are distinguished from taxes on merchandize [sic], called vectigalia.”
The apparatus or denomination of the tax or its implementation is irrelevant. If a tax effectively imposes a liability (falls on) a person, it is a capitation, even if the apparatus or denomination of the tax or its implementation deems it otherwise, such as by purporting it to be a tax on an activity (activity or event), rather than the person connected with that activity. Substance rules over form.
A tax that falls effectively on the exercise of a Right is inherently direct, and a capitation “[T]axation on income [is] in its nature an excise entitled to be enforced as such unless and until it was concluded that to enforce it would amount to accomplishing the result which the requirement as to apportionment of direct taxation was adopted to prevent, in which case the duty would arise to disregard form [that is, any pretense by which it is made to appear that the tax is being confined to its proper limits when it is not, such as by creatively construing the meaning of “income”, or the use of any pretense, scheme or construction by which non-specialized revenue or activities are made to appear otherwise so as to be subjected to the tax] and consider substance alone [that is, what the tax is actually falling upon as a practical reality], and hence subject the tax to the regulation as to apportionment which otherwise as an excise would not apply to it.” Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916)
The 16th Amendment confered no new power of direct taxation. The current Internal Revenue Code encompasses all previous incarnations and law going back to 1862, long before the 16th Amendment. Therefore, its subjects and application remain constrained by the original Constitutional limitations, as the courts have agreed. “We are of opinion, however, that the confusion is not inherent, but rather arises from the conclusion that the 16th Amendment provides for a hitherto unknown power of taxation; that is, a power to levy an income tax which, although direct, should not be subject to the regulation of apportionment applicable to all other direct taxes. And the far-reaching effect of this erroneous assumption will be made clear by generalizing the many contentions advanced in argument to support it...” and “[If the 16th Amendment were construed to allow for a direct, unapportioned tax, it] would cause one provision of the Constitution to destroy another; that is, [it] would result in bringing the provisions of the Amendment [supposedly] exempting a direct tax from apportionment into irreconcilable conflict with the general requirement that all direct taxes be apportioned.” Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916)
“The provisions of the Sixteenth Amendment conferred no new power of taxation...”
Stanton v. Baltic Mining Co., 240 U.S. 103 (1916)
“The Sixteenth Amendment, although referred to in argument, has no real bearing and may be put out of view. As pointed out in recent decisions, it does not extend the taxing power to new or excepted subjects...” Peck v. Lowe, 247 U.S. 165 (1918)
“[T]he settled doctrine is that the Sixteenth Amendment confers no power upon Congress to define and tax as income without apportionment something which theretofore could not have been properly regarded as income.” Taft v. Bowers, 278 US 470, 481 (1929)
The federal income tax effectively falls on persons and is not apportioned according to 26 USC §1 In order for the tax to fall on persons without apportionment, its application must be confined to distinguished activities connected with the exercise of privilege (taxable activities), and not general activities connected with the exercise of Rights.
“The income tax is, therefore, not a tax on income as such. It is an excise tax with respect to certain activities and privileges which is measured by reference to the income which they produce. The income is not the subject of the tax: it is the basis for determining the amount of tax.” United States Treasury Department legislative draftsman F. Morse Hubbard, House Congressional Record, March 27, 1943, page 2580
An “excise” tax as the exercise of a “privilege.” “[T]he requirement to pay [excise] taxes involves the exercise of privilege.” Flint vs. Stone Tracy Co. 220 U.S. 107 (1911); “The terms ‘excise tax’ and ‘privilege tax’ are synonymous . The two are often used interchangeably.” American Airways v. Wallace, 57 F.2d 877, 880 (Dist. Ct., M.D. Tenn., 1937);
“...in Springer v. U. S., 102 U.S. 586 , it was held that a tax upon gains, profits, and income was an excise or duty, and not a direct tax, within the meaning of the constitution, and that its imposition was not, therefore, unconstitutional.” Pollock v. Farmer's Loan & Trust, 158 U.S. 601, 1895; “An excise tax is any tax which does not fall within the classification of a poll tax or a property tax, and which embraces every form of burden not laid directly upon persons or property. The obligation to pay an excise is based upon the voluntary action of the person taxed in performing the act, enjoying the privilege or engaging in the occupation which is the subject of the excise, and the element of absolute and unavoidable demand is lacking. * * * The term "excise tax" is synonymous with "privilege tax" and the two are used interchangeably. Whether a tax is characterized in the statute imposing it as a privilege tax or an excise tax is merely a choice of synonymous words, for an excise tax is a privilege tax.” 71 Am. Jur.2d § 24, pp. 319-20; “The 'Government' is an abstraction, and its possession of property largely constructive. Actual possession and custody of Government property nearly always are in someone who is not himself the Government but acts in its behalf and for its purposes. He may be an officer, an agent, or a contractor. His personal advantages from the relationship by way of salary, profit, or beneficial personal use of the property may be taxed...” United
States v. County of Allegheny, 322 US 174 (1944)
Because the tax must be confined to distinguished activities (or be unconstitutional for being an unapportioned capitation), those who would impose the tax bear the burden of proving that the activities for which liability is said to have arisen are so distinguished, if this presumption or assertion is disputed; Federal Rules of Evidence Rule 301 “Presumptions governed by this rule are given the effect of placing upon the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption establishes the basic facts giving rise to it.” Notes of Advisory Committee to Federal Rules of Evidence Rule 301
Working and being paid for doing so, or acquiring wealth in any other fashion, absent specialized circumstances, are the exercise of Rights, not privilege.
“The right to follow any of the common occupations of life is an inalienable right… It has been well said that ‘the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property’.” Butcher’s Union Co. v. Crescent City Co., 111 U.S. 746 (1883);
“Included in the right of personal liberty and the right of private property- partaking of the nature of each- is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property” Coppage v. Kansas, 236 U.S. 1 (1915)
“An income tax is neither a property tax nor a tax on occupations of common right, but is an excise tax...The legislature may declare as 'privileged' and tax as such for state revenue, those pursuits not matters of common right, but it has no power to declare as a 'privilege' and tax for revenue purposes, occupations that are of common right.” Simms v. Ahrens, 271 SW 720 (1925)
Americans such as ourselves, are shielded from non-apportioned capitations and other direct taxes by Article 1, Section 9 of the U.S. Constitution.
In order for a court to acquire or maintain jurisdiction in a lawsuit in which the government alleges a claim to a non-apportioned tax from persons such as ourselves, or for a court to find that liability for such a tax falls on us, the government must prove that we were engaged in taxable activities-- and to the extent alleged-- because we have rebutted allegations and presumptions to this effect. “The mere allegation of facts necessary for jurisdiction without supporting proof is fatally defective. Under Rule 12(h)(3) the Court is directed to dismiss an action when it appears the Court lacks jurisdiction over the subject matter,” and, “The failure to prove jurisdictional facts when specifically denied is fatal to the maintenance of this action.” United States v. One 1972 Cadillac, 355 F.Supp. 513, 514-15 (E.D.Ky.1973)
The Respondent is acting against the Petitioners upon the presumption that monies received as a consequence of our right to engage in a common occupation qualify as “gross income” and/or “wages” and are subject to the “income tax”. This presumption is false. Regardless of what the Respondent may believe, or the misrepresentations by third parties about the character of monies paid, it is the actual circumstances under which monies are paid/received that define its character, not the incorrect labels that may have been assigned. The burden of proof falls on the Respondent to show that the monies received by the Petitioners were the result of exercising some privilege. If the requirement of such evidence (and the application of proper procedure) is denied by the Respondent and the Respondent continues to assert his claims against the Petitioners, the Respondent and his cooperating counsel are engaging in an attempt to fraudulently
confiscate the property of the Petitioners and violate their rights under the Constitution of the United States. This court has the obligation, in the interests of justice, to either compel the production of such evidence and adherence to procedure or grant the petitioners’ motion for summary judgement.
3. Paragraphs 8, 9 and 10 of the Respondents Motion for Summary Judgement; The Respondent is acting under the assumption that working and receiving money is the same as being an “employee” and receiving “wages.” He is assuming that the terms are used colloquially and have their common meanings. This is not so. When terms are defined by statute, they no longer have their common meanings.
"When a statute includes an explicit definition, we must follow that definition, even if it varies from that term's ordinary meaning." Stenberg v. Carhart, 530 U.S. 914 (2000)
"It is axiomatic that the statutory definition of the term excludes unstated meanings of that term." Meese v. Keene, 481 U.S. 465 (1987).
"Of course, statutory definitions of terms used therein prevail over colloquial meanings. Fox v. Standard Oil Co., 294 U.S. 87, 95, 55 S.Ct. 333, 336." Western Union Telegraph Co. v. Lenroot, 323 U.S. 490 (1945)
The Respondent cannot assume the monies received were taxable just because they were received. In order for monies to be taxable they must have been received as a consequence of an activity and under circumstances as defined by the Internal Revenue Code that makes the money taxable. It cannot be presumed taxable and regardless of what the Respondent may desire to call the monies received, if the activity and circumstances under which it was received do not make it taxable, it is not subject to
taxation. The Respondent's specific assertion in point 9 equating “remuneration” with “taxable income” cannot be presumed correct. The burden of proof is upon the Respondent to prove the activity and circumstances producing the “remuneration” make it taxable. “Presumptions governed by this rule are given the effect of placing upon the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption establishes the basic facts giving rise to it.” Notes of Advisory
Committee to Federal Rules of Evidence Rule 301
The Respondent's assertion in point 10 is incorrect as well. “Income,” like “wages” and “employee,” is a term within the Internal Revenue Code that does not have its colloquial meaning. “Income” under tile 26 cannot mean any monies received by anyone as a consequence of the right to work at a common occupation. The Petitioners, therefore, do not and have not claimed that the monies received were “unreported income” nor have the Petitioners made the “claim that the income is not taxable.” The Petitioners have not referred to the monies received as “income” at all. The Respondent is intentionally misrepresenting the statements and position of the Petitioners in an attempt to mislead the court.
4. Paragraph 11 of the Respondents Motion for Summary Judgement; The Petitioners would refer the court to our statements in the Petitioners Response to Respondent’s Response to Petitioners’ Motion for Summary Judgment in paragraph 3.
5. Paragraph 12 of the Respondents Motion for Summary Judgement; This is patently false. Not only have the Petitioners’ submitted copious amounts of applicable Internal Revenue Code and relevant case law, the burden to prove a negative-that the Petitioners did not engage in a taxable activity or receive money under circumstances that make it taxable-does not fall on the Petitioners. The burden of proof is upon the Respondent to prove that the Petitioners were engaged in a taxable activity and received money under circumstances that make it taxable. The Respondent has simply made assertions based on assumptions that any monies received under any circumstances constitute “wages” while offering no evidence as required by the Code. Information returns are insufficient to conclusively establish liability. See 26 USC §6201.
6. Paragraphs 13, 14 and 15 of the Respondents Motion for Summary Judgement; The penalty violates procedure as outlined above. In contrast to the Respondent's assertions, the Petitioners have complied with all the rules and regulations of the Internal Revenue Code. The Petitioners did not fail to report “taxable income.” The fact is that the Petitioners have complied with regulations that do not even apply to them because the Petitioners are not of the type of persons, “taxpayer,” subject to the provisions of Title 26. The Petitioners have demanded the Respondent adhere to procedure, produce documents, and provide evidence required by law. To label such demands “frivolous” is absurd. The fact that the Respondent has violated procedure, failed to produce required documents and evidence demonstrates that it is the Respondent who has acted without “reasonable cause” nor in “good faith.”
7. Paragraphs 16, 17 and 18 of the Respondents Motion for Summary Judgement; For the Respondent to make the statement that he has met any burden of production is laughable. As noted above, in order for any penalty or addition to tax (deficiency) to be imposed, an assessment must be made. By the Respondent's own admission, no assessment has been made. Therefore, this most fundamental item has not been produced. Nor has a 6020(b) return been made (again by the Respondent's own admission) as a consequence of the Respondent’s assertion that the Petitioners’ return was “frivolous,” false or fraudulent. Nor has the Respondent produced the evidence required to support his assertion the Petitioners were engaged in a taxable activity. Absent the production of all of these items as required by specific Internal Revenue Code sections, the Respondent lacks the statutory authority for any of his actions against the Petitioners.
FOR ALL THE FORGOING, the Petitioners move the court deny the Respondent's Motion for Summary Judgment and enter an order granting the Petitioner's original Motion for Summary Judgment.
2. Paragraphs 5 and 6 of the Respondents Motion for Summary Judgement; The Respondent's quote of IRC §61(1) is an intentional misrepresentation of the nature and scope of the “income tax”. The Petitioners can only assume that the Respondent and his counsel know the law and are deliberately attempting to mislead the court as to its application to the Petitioners.
IRC section 61-Gross income defined (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:
The first Internal Revenue Code was published in 1939. That code was revised in 1954 and 1986. Except where subsequent formal enactments have explicitly amended or otherwise modified language found therein, such language is subordinate to the older, original laws. The preface of the 1939 law states the following: “The internal revenue title, which comprises all of the Code except the preliminary sections relating to its enactment, is intended to contain all the United States statutes of a general and permanent nature relating exclusively to internal revenue, in force January 2, 1939; also such of the temporary statutes of that description as relate to taxes the occasion of which may arise after the enactment of the Code. These statutes are codified without substantive change and with only such change of form as required by arrangement and consolidation. The title contains no provision, except for effective date, not derived from a law approved priori to January 3, 1939....The whole body of internal revenue law in effect on January 2, 1939, therefore, has its ultimate origin in 164 separate enactments of Congress. The earliest of these was approved July 1, 1862; the latest June 16, 1938....”
The meaning and application of the internal revenue laws of the United States have not changed from 1862 to the present. Its meaning and application cannot be inferred, implied or presumed to items or people not specifically or historically within the Code. Such presumptions have no legal effect. “26 USC §7806 Construction of title (a) Arrangement and classification No inference, implication or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title, nor shall any table of contents, table of cross references, or similar outline, analysis, or descriptive matter relating to the contents of this title be given any legal effect.”
The section of the 1939 Code that defines gross income is as follows; “Section 22(a): Gross income includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal; also from interest, rent, dividends, securities, or the transaction of any business carried on for gains or profits, or gains or profits from any source whatever.”
This section was immediately amended by the Public Salary Act of 1939 as follows:
SECTION 1. Section 22(a) of the Internal Revenue Code (relating to the definition of “gross income”) is amended by inserting after the words “compensation for personal service the following: (“including personal service as an officer or employee of a State, or any political subdivision thereof, or any agency or instrumentality of the foregoing).
This brought it into conformity with previous enactments of the “income tax”. The original “income tax” enacted on July 1, 1862 stated in section 86 “....there shall be levied, collected, and paid on all salaries of officers, or payments to persons in the civil, military, or other employment or service of the United states, including senators and representatives and delegates in Congress,....” The Revenue Act issued by Congress in 1921 defined “gross income” in section 213. “...the term gross income-(a) includes gains, profits and income derived from salaries, wages, and compensation for personal service (including in the case of the president of the United States, the judges of the Supreme Court and inferior courts of the United States, and all other officers and employees, whether elected or appointed, of the United States...”
Several things should be obvious from the previous readings of the law. First, if anyone who receives money for work receives “income” under the definition of “gross income”, certainly “an officer or employee of a State” its subdivisions or agencies would already be covered and their specific inclusion is redundant. Second, the “income tax” is applicable to “gains, profits and income derived from salaries, wages or compensation for personal service,..” Gross income is not the “wages salaries or compensation” but it is “gains profits and income” derived from those things. By statutory construction, “wages, salaries or compensation for personal service” are not gross income (and subject to taxation) but whatever “gains profits or income” may be derived from it. The Respondent is confusing the proper subject of the income tax-gains, profits and income derived from salaries, wages or compensation for personal service by an individual specifically connected to the Federal government- with the colloquial use of the term “income” believing that “gross income” means anyone anywhere who receives money as a consequence of exercising the right to engage in a common occupation.
Certainly the Respondent and his counsel understand statutory construction and its limits. The reason for the specific inclusion of terms relating to Federal connections and the limiting nature of the language in the Code is to ensure the “income tax” as detailed in 26 USC, is constitutional according to Article 1 section 9. It cannot be a direct tax or capitation (a tax on the right to engage in a common occupation) and therefore must be an excise tax. In other words, a taxable activity must result from the exercise of some privilege and not of a right. Contrary to what the Respondent may believe or assert, not everything that comes in constitutes “taxable income” according the 26 USC. Not only is the circumstance under which an individual enters into an employee/employer relationship and may participate in a taxable activity statutorily restricted, the definition by which an employee/employer relationship produces taxable wages is a very limited one. This is necessary to keep the federal income tax from violating Article 1 Section 9 of the United States Constitution which prohibits direct taxes and capitations without apportionment. This prohibits the income tax from falling on individuals such as ourselves engaged in common occupations. Please consider the following:
“It is elementary law that every statute is to be read in the light of the constitution. However broad and general its language, it cannot be interpreted as extending beyond those matters which it was within the constitutional power of the legislature to reach.” McCullough v. Com. of Virginia, 172 U.S. 102 (1898)
United States Constitution Article 1, Section 9 prohibits “capitations and other direct taxes” other than by the mechanism of apportionment. Article 1, Section 9: "No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."
“Capitations” are taxes on persons, and include taxes measured by revenue “...Albert Gallatin, in his Sketch of the Finances of the United States, published in November, 1796, said: ‘The most generally received opinion, however, is that, by direct taxes in the constitution, those are meant which are raised on the capital or revenue of the people;...’ He then quotes from Smith’s Wealth of Nations, and continues: ‘The remarkable coincidence of the clause of the constitution with this passage in using the word ‘capitation’ as a generic expression, including the different species of direct taxes-- an acceptation of the word peculiar, it is believed, to Dr. Smith-- leaves little doubt that the framers of the one had the other in view at the time, and that they, as well as he, by direct taxes, meant those paid directly from the falling immediately on the revenue;...’” Pollock v. Farmer’s Loan & Trust, 157 U.S. 429 (1895)
J.J.S. Wharton, Esq., Law Lexicon or Dictionary of Jurisprudence (1848) “CAPITATION: a tax or imposition raised on each person in consideration of his labour, industry, office, rank, etc. It is a very ancient kind of tribute, and answers to what the Latins called tributum, by which taxes on persons are distinguished from taxes on merchandize [sic], called vectigalia.”
The apparatus or denomination of the tax or its implementation is irrelevant. If a tax effectively imposes a liability (falls on) a person, it is a capitation, even if the apparatus or denomination of the tax or its implementation deems it otherwise, such as by purporting it to be a tax on an activity (activity or event), rather than the person connected with that activity. Substance rules over form.
A tax that falls effectively on the exercise of a Right is inherently direct, and a capitation “[T]axation on income [is] in its nature an excise entitled to be enforced as such unless and until it was concluded that to enforce it would amount to accomplishing the result which the requirement as to apportionment of direct taxation was adopted to prevent, in which case the duty would arise to disregard form [that is, any pretense by which it is made to appear that the tax is being confined to its proper limits when it is not, such as by creatively construing the meaning of “income”, or the use of any pretense, scheme or construction by which non-specialized revenue or activities are made to appear otherwise so as to be subjected to the tax] and consider substance alone [that is, what the tax is actually falling upon as a practical reality], and hence subject the tax to the regulation as to apportionment which otherwise as an excise would not apply to it.” Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916)
The 16th Amendment confered no new power of direct taxation. The current Internal Revenue Code encompasses all previous incarnations and law going back to 1862, long before the 16th Amendment. Therefore, its subjects and application remain constrained by the original Constitutional limitations, as the courts have agreed. “We are of opinion, however, that the confusion is not inherent, but rather arises from the conclusion that the 16th Amendment provides for a hitherto unknown power of taxation; that is, a power to levy an income tax which, although direct, should not be subject to the regulation of apportionment applicable to all other direct taxes. And the far-reaching effect of this erroneous assumption will be made clear by generalizing the many contentions advanced in argument to support it...” and “[If the 16th Amendment were construed to allow for a direct, unapportioned tax, it] would cause one provision of the Constitution to destroy another; that is, [it] would result in bringing the provisions of the Amendment [supposedly] exempting a direct tax from apportionment into irreconcilable conflict with the general requirement that all direct taxes be apportioned.” Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916)
“The provisions of the Sixteenth Amendment conferred no new power of taxation...”
Stanton v. Baltic Mining Co., 240 U.S. 103 (1916)
“The Sixteenth Amendment, although referred to in argument, has no real bearing and may be put out of view. As pointed out in recent decisions, it does not extend the taxing power to new or excepted subjects...” Peck v. Lowe, 247 U.S. 165 (1918)
“[T]he settled doctrine is that the Sixteenth Amendment confers no power upon Congress to define and tax as income without apportionment something which theretofore could not have been properly regarded as income.” Taft v. Bowers, 278 US 470, 481 (1929)
The federal income tax effectively falls on persons and is not apportioned according to 26 USC §1 In order for the tax to fall on persons without apportionment, its application must be confined to distinguished activities connected with the exercise of privilege (taxable activities), and not general activities connected with the exercise of Rights.
“The income tax is, therefore, not a tax on income as such. It is an excise tax with respect to certain activities and privileges which is measured by reference to the income which they produce. The income is not the subject of the tax: it is the basis for determining the amount of tax.” United States Treasury Department legislative draftsman F. Morse Hubbard, House Congressional Record, March 27, 1943, page 2580
An “excise” tax as the exercise of a “privilege.” “[T]he requirement to pay [excise] taxes involves the exercise of privilege.” Flint vs. Stone Tracy Co. 220 U.S. 107 (1911); “The terms ‘excise tax’ and ‘privilege tax’ are synonymous . The two are often used interchangeably.” American Airways v. Wallace, 57 F.2d 877, 880 (Dist. Ct., M.D. Tenn., 1937);
“...in Springer v. U. S., 102 U.S. 586 , it was held that a tax upon gains, profits, and income was an excise or duty, and not a direct tax, within the meaning of the constitution, and that its imposition was not, therefore, unconstitutional.” Pollock v. Farmer's Loan & Trust, 158 U.S. 601, 1895; “An excise tax is any tax which does not fall within the classification of a poll tax or a property tax, and which embraces every form of burden not laid directly upon persons or property. The obligation to pay an excise is based upon the voluntary action of the person taxed in performing the act, enjoying the privilege or engaging in the occupation which is the subject of the excise, and the element of absolute and unavoidable demand is lacking. * * * The term "excise tax" is synonymous with "privilege tax" and the two are used interchangeably. Whether a tax is characterized in the statute imposing it as a privilege tax or an excise tax is merely a choice of synonymous words, for an excise tax is a privilege tax.” 71 Am. Jur.2d § 24, pp. 319-20; “The 'Government' is an abstraction, and its possession of property largely constructive. Actual possession and custody of Government property nearly always are in someone who is not himself the Government but acts in its behalf and for its purposes. He may be an officer, an agent, or a contractor. His personal advantages from the relationship by way of salary, profit, or beneficial personal use of the property may be taxed...” United
States v. County of Allegheny, 322 US 174 (1944)
Because the tax must be confined to distinguished activities (or be unconstitutional for being an unapportioned capitation), those who would impose the tax bear the burden of proving that the activities for which liability is said to have arisen are so distinguished, if this presumption or assertion is disputed; Federal Rules of Evidence Rule 301 “Presumptions governed by this rule are given the effect of placing upon the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption establishes the basic facts giving rise to it.” Notes of Advisory Committee to Federal Rules of Evidence Rule 301
Working and being paid for doing so, or acquiring wealth in any other fashion, absent specialized circumstances, are the exercise of Rights, not privilege.
“The right to follow any of the common occupations of life is an inalienable right… It has been well said that ‘the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property’.” Butcher’s Union Co. v. Crescent City Co., 111 U.S. 746 (1883);
“Included in the right of personal liberty and the right of private property- partaking of the nature of each- is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property” Coppage v. Kansas, 236 U.S. 1 (1915)
“An income tax is neither a property tax nor a tax on occupations of common right, but is an excise tax...The legislature may declare as 'privileged' and tax as such for state revenue, those pursuits not matters of common right, but it has no power to declare as a 'privilege' and tax for revenue purposes, occupations that are of common right.” Simms v. Ahrens, 271 SW 720 (1925)
Americans such as ourselves, are shielded from non-apportioned capitations and other direct taxes by Article 1, Section 9 of the U.S. Constitution.
In order for a court to acquire or maintain jurisdiction in a lawsuit in which the government alleges a claim to a non-apportioned tax from persons such as ourselves, or for a court to find that liability for such a tax falls on us, the government must prove that we were engaged in taxable activities-- and to the extent alleged-- because we have rebutted allegations and presumptions to this effect. “The mere allegation of facts necessary for jurisdiction without supporting proof is fatally defective. Under Rule 12(h)(3) the Court is directed to dismiss an action when it appears the Court lacks jurisdiction over the subject matter,” and, “The failure to prove jurisdictional facts when specifically denied is fatal to the maintenance of this action.” United States v. One 1972 Cadillac, 355 F.Supp. 513, 514-15 (E.D.Ky.1973)
The Respondent is acting against the Petitioners upon the presumption that monies received as a consequence of our right to engage in a common occupation qualify as “gross income” and/or “wages” and are subject to the “income tax”. This presumption is false. Regardless of what the Respondent may believe, or the misrepresentations by third parties about the character of monies paid, it is the actual circumstances under which monies are paid/received that define its character, not the incorrect labels that may have been assigned. The burden of proof falls on the Respondent to show that the monies received by the Petitioners were the result of exercising some privilege. If the requirement of such evidence (and the application of proper procedure) is denied by the Respondent and the Respondent continues to assert his claims against the Petitioners, the Respondent and his cooperating counsel are engaging in an attempt to fraudulently
confiscate the property of the Petitioners and violate their rights under the Constitution of the United States. This court has the obligation, in the interests of justice, to either compel the production of such evidence and adherence to procedure or grant the petitioners’ motion for summary judgement.
3. Paragraphs 8, 9 and 10 of the Respondents Motion for Summary Judgement; The Respondent is acting under the assumption that working and receiving money is the same as being an “employee” and receiving “wages.” He is assuming that the terms are used colloquially and have their common meanings. This is not so. When terms are defined by statute, they no longer have their common meanings.
"When a statute includes an explicit definition, we must follow that definition, even if it varies from that term's ordinary meaning." Stenberg v. Carhart, 530 U.S. 914 (2000)
"It is axiomatic that the statutory definition of the term excludes unstated meanings of that term." Meese v. Keene, 481 U.S. 465 (1987).
"Of course, statutory definitions of terms used therein prevail over colloquial meanings. Fox v. Standard Oil Co., 294 U.S. 87, 95, 55 S.Ct. 333, 336." Western Union Telegraph Co. v. Lenroot, 323 U.S. 490 (1945)
The Respondent cannot assume the monies received were taxable just because they were received. In order for monies to be taxable they must have been received as a consequence of an activity and under circumstances as defined by the Internal Revenue Code that makes the money taxable. It cannot be presumed taxable and regardless of what the Respondent may desire to call the monies received, if the activity and circumstances under which it was received do not make it taxable, it is not subject to
taxation. The Respondent's specific assertion in point 9 equating “remuneration” with “taxable income” cannot be presumed correct. The burden of proof is upon the Respondent to prove the activity and circumstances producing the “remuneration” make it taxable. “Presumptions governed by this rule are given the effect of placing upon the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption establishes the basic facts giving rise to it.” Notes of Advisory
Committee to Federal Rules of Evidence Rule 301
The Respondent's assertion in point 10 is incorrect as well. “Income,” like “wages” and “employee,” is a term within the Internal Revenue Code that does not have its colloquial meaning. “Income” under tile 26 cannot mean any monies received by anyone as a consequence of the right to work at a common occupation. The Petitioners, therefore, do not and have not claimed that the monies received were “unreported income” nor have the Petitioners made the “claim that the income is not taxable.” The Petitioners have not referred to the monies received as “income” at all. The Respondent is intentionally misrepresenting the statements and position of the Petitioners in an attempt to mislead the court.
4. Paragraph 11 of the Respondents Motion for Summary Judgement; The Petitioners would refer the court to our statements in the Petitioners Response to Respondent’s Response to Petitioners’ Motion for Summary Judgment in paragraph 3.
5. Paragraph 12 of the Respondents Motion for Summary Judgement; This is patently false. Not only have the Petitioners’ submitted copious amounts of applicable Internal Revenue Code and relevant case law, the burden to prove a negative-that the Petitioners did not engage in a taxable activity or receive money under circumstances that make it taxable-does not fall on the Petitioners. The burden of proof is upon the Respondent to prove that the Petitioners were engaged in a taxable activity and received money under circumstances that make it taxable. The Respondent has simply made assertions based on assumptions that any monies received under any circumstances constitute “wages” while offering no evidence as required by the Code. Information returns are insufficient to conclusively establish liability. See 26 USC §6201.
6. Paragraphs 13, 14 and 15 of the Respondents Motion for Summary Judgement; The penalty violates procedure as outlined above. In contrast to the Respondent's assertions, the Petitioners have complied with all the rules and regulations of the Internal Revenue Code. The Petitioners did not fail to report “taxable income.” The fact is that the Petitioners have complied with regulations that do not even apply to them because the Petitioners are not of the type of persons, “taxpayer,” subject to the provisions of Title 26. The Petitioners have demanded the Respondent adhere to procedure, produce documents, and provide evidence required by law. To label such demands “frivolous” is absurd. The fact that the Respondent has violated procedure, failed to produce required documents and evidence demonstrates that it is the Respondent who has acted without “reasonable cause” nor in “good faith.”
7. Paragraphs 16, 17 and 18 of the Respondents Motion for Summary Judgement; For the Respondent to make the statement that he has met any burden of production is laughable. As noted above, in order for any penalty or addition to tax (deficiency) to be imposed, an assessment must be made. By the Respondent's own admission, no assessment has been made. Therefore, this most fundamental item has not been produced. Nor has a 6020(b) return been made (again by the Respondent's own admission) as a consequence of the Respondent’s assertion that the Petitioners’ return was “frivolous,” false or fraudulent. Nor has the Respondent produced the evidence required to support his assertion the Petitioners were engaged in a taxable activity. Absent the production of all of these items as required by specific Internal Revenue Code sections, the Respondent lacks the statutory authority for any of his actions against the Petitioners.
FOR ALL THE FORGOING, the Petitioners move the court deny the Respondent's Motion for Summary Judgment and enter an order granting the Petitioner's original Motion for Summary Judgment.
Comments