THE “RIGHTS” ISSUE
NO DUTY TO FILE INCOME TAX RETURNS
There are many wild theories floating through the tax patriot movement as to whom the income tax statutes apply or to whom it doesn’t apply. However, only one position has the merit (quality legal argument) to meet the test of time and pass the muster of law. That position is the “rights” issue.
When one studies the income taxing power of government, he will understand that this power to tax is plenary and absolute over those who are its subjects. If government has the authority to tax, it has, within that authority, the power to destroy.
The question is, in reference to the income tax, over whom does government have that plenary taxable authority. To make that determination, one needs to start with a solid foundation and that foundation is expressed in the opinion letter below.
This opinion letter was written by Bob Minarik. The letter expresses the basic foundation used to show the lack of a legal duty to file federal and state income tax returns by one who does not come within the purview of government's plenary power of taxation as erroneously presumed and asserted by the income taxing statutes.
Dear Concerned American,
I am in receipt of your inquiry requesting my opinion as to any obligation or legal duty you may personally have to file a state or federal income tax return and pay an income tax.
First, as I am not aware of your personal situation, my comments will be general rather than specific. Second, I am not an attorney or an accountant. I have no formal education in tax law or law in general. What I am is a self-taught legal researcher and rights advocate who has researched the IR code extensively over the last 25 years. I have spent literally hundreds of hours at the law library and have sought counsel on this topic from numerous attorneys and tax professionals. I have made personal inquiry to the IRS and have also assisted many others in making similar inquiries to seek the specific authority and statute that imposes a legal duty on anyone to waive fundamental rights in order to comply with any income taxing statutes.
Although a number of court decisions have been based on the presumption that everyone has a “legal duty” to file forms, waive rights and pay an income tax merely for exercising one's right to work and exist, I have not encountered any lawful basis for that presumption. At no time has anyone been able to show me a specific statute that clearly and specifically states that I am liable or made liable “to file” a “U.S. Individual” income tax under Title 26 of the United States Code or any state code.
Personally, I have not “filed” a state or federal income tax form for over 25 years. I have determined that I do not have a legal duty to waive fundamental rights to comply with any income taxing scheme, merely for exercising my right to work and exist.
I base my personal determination on my findings in Title 26 itself, the lack of response by those in the IRS to my inquiries as to the basis of any alleged “legal duty” that I may have, on my inquiry of counsel and on the decisions of the Supreme Court of the United States of America and of the lower courts.
My research indicates that to be found criminally guilty of violating any federal taxing statute, for failure to file or tax evasion, would require the government to prove that you not only committed an act or failed to perform an act, but that you had a willful intent to violate a known “legal duty.” See Cheek v. U.S., 111 S.Ct. 604 at 610 (1991), citing U.S. v. Murdock, 54 S.Ct. 223 (1933); U.S. v. Bishop, 93 S.Ct. 2008 (1973); and U.S. v. Pomponio, 97 S.Ct. 22 (1976).
The decision of whether to subject yourself to the income tax statues is a personal decision based on your own set of facts and circumstances, but I will address for you the basis for why I have no “legal duty” to file tax forms or pay an income tax.
Back in 1917, the Supreme Court of the United States of America restated the following fundamental standard:
“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, or 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. 15 1 at 153 (1917).
With that standard as a basis, I then sought out the Privacy Act document that the IRS is required to give, under 5 U.S.C. Section 552a 5(e)( 1) of the Privacy Act, to every “individual who is asked to supply information.” In reference to Title 26, this document is IRS Privacy Act Notice # 609, 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.”
Section 6001 states in pertinent part: “Every person liable for any tax imposed by this title...... shall keep such records, render such statements, make such returns..........”
Section 6011 states in pertinent part: "When required by regulations prescribed by the Secretary, any person made liable for any tax imposed by this title... shall make a return or statement...."
Section 6012 states in pertinent part: "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.........”
These sections state that you must file a return in respect to income taxes if you are a "person liable" or a "person made liable" and you have for the "taxable year" under subtitle A, gross income exceeding the exemption amount.
It is VERY IMPORTANT to Note that Section 6012 is subservient (inferior) to Sections 6001 and 6011. This can be seen from 26 U.S.C. Section 6011(f) which states: “For requirements that returns of income, estate and gift taxes be made whether or not there is a tax liability, see subparts B and C.” Section 6012 is the first section of subpart B.
Section 6011(f) instructs that any filing requirements under Section 6012 are subservient to the prerequisites of Section 6001 and 6011, that one must first be liable or made liable for the tax before any obligation is imposed.
In addition, this premise is further verified with a review of subtitle A which begins with Section 1(a) and refers to a married individual (as defined in Sec. 7703) and a surviving spouse (as defined in Sec. 2(a)).
Section 7703(a)( 1) states: “The determination of whether an individual is married shall be made at the close of his taxable year....."
Furthermore: Section 441(a) states: “Taxable income shall be computed on the basis of the taxpayer's taxable year.”
Section 441(b) states: “For purposes of this subtitle, the term ‘taxable year’ means
(1) the taxpayer's annual accounting period........”
Section 451 (a) states: “The amount of any item of gross income shall be included in the gross income for the taxable year in which received by the taxpayer......”
For gross income (as defined under section 61) to have any bearing on a specific individual, that individual must be an individual with a “taxable year.” The only individuals' described in subtitle A who have a “taxable year” are “taxpayer” individuals. Following the specificity rule of statutory construction expressed in Gould vs. Gould, the only individuals who can have “taxable income” under Section 1 or section 2 are “taxpayer” individuals with a “taxable year.”
This is further verified by the definitions provided in section 2(a)(1) which states: "For purposes of Section 1, the term surviving spouse means a taxpayer....,"
Section 1(b), 1(c), and 1(d), have the same type of definition.
Under subtitle A, an income tax is imposed on the specific legally defined term “taxable income” of a “taxpayer” individual. The term “taxpayer” is generally defined at section 7701(a) as “any person subject to any internal revenue tax,” and specifically defined at Section 1313(b) as being “any person subject to a tax under the applicable revenue law.”
A literal reading of sections 6001, 6011 and 6012 shows that one must first be liable or made liable to be a “taxpayer” (as that term is defined in the code) to have “taxable income.” At the minimum, one must already be obligated to waive rights in order to have a “legal duty” to comply with the income taxing statutes of the IR Code.
Again, it is very important to note and be able to distinguish between the terms “liable for tax” and “have a tax liability.” It is possible to be a “person liable” or a “person made liable” for a tax and have no tax liability. However, it is impossible to have a “tax liability” if one is not a “person liable” or a “person made liable.”
The Seventh Circuit Court of Appeals has emphasized the specific restrictive nature of the term “taxpayer,” which follows the general restriction on any statutes that would impose an obligation, as expressed by the Supreme Court in Gould v. Gould (cited above), when the court stated:
“Since the statutory definition of 'taxpayer' is exclusive, the federal courts do not have the power to create non-statutory taxpayers for the purpose of applying the provisions of the Revenue Acts.”
C.I.R. v. Trustees of Lumber Inv. Assn.,100 F.2d 18, 29 (7th Cir. 1938).
Again, as per Gould v. Gould, the statute making one liable must be clear in its language. To ascertain a standard for what is a clearly stated statute that imposes a “legal duty,” we can simply look in Title 26 of the United States Code, where there are specific sections for other taxes which do clearly state when one is “liable” or “made liable” and where a reasonable man can clearly understand that which meets the Gould v. Gould requisite.
Here is an example. Section 4401 (a) imposes a tax on wagers (gambling bets) and it states, “There shall be imposed on any wagers......an excise tax......” Section 4401(c) sets the requirement for who shall be “liable for the tax” and shall pay the tax:
“Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subchapter on all wagers placed with him.”
Other sections of Title 26 of the U.S. Code that specifically impose a tax and distinctly specify who is “liable” to pay the tax are:
1. Section 4261 (a) imposes a tax, and Section 4261(d) specifies who is liable to pay the tax.
2. Section 4611(a) imposes a tax and Section 4611(d)(1)(2)(3) specifies three separate persons who are liable to pay the tax.
3. Section 4971(a) imposes a tax and section 4971(e) specifies who is liable to pay the tax.
4. Section 5001 (a) imposes a tax and section 5005(a) specifies who is liable to pay the tax.
5. Section 5701(a)(b)(c) imposes a tax and section 5703(a)( 1)&(2) specifies who is liable to pay the tax.
A review of Sections 1, 2 and 3 of subtitle A shows that a tax is imposed on taxable income for the taxable year, but at no place in subtitle A or anywhere else in the Title 26 is there any section that specifically states who is liable or made liable to file or to pay an income tax.
Without a specific statute making anyone liable, the presumption is established that anyone who could be actually held liable for the income tax is one who is already a statutorily defined “taxpayer” and who is already “subject to” or “made liable for” some other internal revenue tax.
“That the power to tax is the power to destroy,” is a fundamental premise of taxation expressed by then Chief Justice John Marshall in the landmark Supreme Court decision of McCulloch v. Maryland, 4 Wheat 316, 431 (1819). This premise expresses the bottom line of the plenary power of taxation that the sovereign has over those who are subjects to the sovereign. With this plenary power of taxation, the government can tax a subject to the point that the subject is destroyed.
I stand on the principle that the servant can never have the power to destroy the master. As per the preamble to the Constitution for the United States of America, I assert that I am one of the posterity of “We the people,” who ordained and established the Constitution which set forth the powers and proscribed the limitations of the government of the U.S. of A.
As I am not one who has made himself subject or has been made a subject to government, I am therefore not one who can be subject to destruction by government.
But if I am not one who is a subject who can be destroyed, then who can the government tax even to the point of destruction?
Just prior to his statement that the power to tax is the power to destroy at page 429, Chief Justice Marshall expressed the following:
“All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend are upon the soundest principles exempt from taxation. This proposition may almost be pronounced self-evident. . . The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its own, permission ......”
If I am not one who exists by the authority of the state or federal government or introduced by the permission of either, I am exempt from involvement from any taxing scheme that obligates me to waive fundamental rights. If this was not so, the servant could destroy the master and that premise would fly in the face of the Bill of Rights of the Constitution for the United States of America and the Bill of Rights of the respective Constitutions for each of the States. This appears to me to be the reason why the IR Code, which to date has passed Constitutional muster, does not make a citizen liable for a tax that requires the waiver of rights regardless of the erroneous expansive wording of regulation 26 C.F.R. 1.1-1.
Unless I am clearly liable or made liable by a specific statute(s) of the tax code and I am one obligated to waive fundamental rights, I do not have a “legal duty” to file any income tax forms, keep or produce any records for the government, or give any information to any government entity. It would follow that if you are not a subject, you would not have any such "legal duty" either.
The final determination, however, is yours. You will have to determine whether you are one who is a master over your government or one who is a servant subject to it. You will have to determine whether your rights to work and exist are actually rights or just privileges that are subject to destruction.
You will have to determine if you are one who has waived his fundamental rights to speak or not to speak as protected under the First Amendment, your right to be secure in your person, home, papers and effects, as protected under the Fourth Amendment, your right not to be compelled to be a witness against yourself and your right to due process of law as protected under the Fifth Amendment, your right to an impartial jud ge and jury, as protected under the Sixth Amendment, or any other rights protected under the Ninth Amendment.
The standard for the waiver of rights has already been established by the Supreme Court when the court stated:
“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. U.S., 397 U.S. 749, 90 S.Ct. 1463, 1469 (1970). See also Fuentes v. Shevin, 407 U.S. 67 (1972); Brookhart V. Janis, 384 U.S. 6 (1966); Empsak v. U.S., 349 U.S. 190 (1955); and Johnson v. Zerbst, 304 U.S. 58 (1938).
The bottom line is that unless I have somehow waived or lost my fundamental rights, it is not within the power of Congress to impose a tax, applicable to me, that would destroy those rights.
As an example, back in the 1960s, this limitation was reinforced in a Texas voting rights case. The state of Texas was imposing a poll tax on the voters prior to letting them vote. In U.S. v. Texas, 252 F.Supp 234, 254 (1966), the U.S. District Court said:
"Since, in general, only those who wish to vote pay the poll tax, the tax as administered by the state is equivalent to a charge or penalty imposed on the exercise of a fundamental right . If 'the tax were increased to a high degree, as it could be if valid, it would result in the destruction of the right to vote. See Grosjean v. American Press Co., 297 U.S. 233, 244, 54 S.Ct. 444 (1936)."
Note that the district court reiterated the fundamental premise of law expressed by Chief Justice John Marshall in the landmark decision of McCulloch v. Maryland, cited above, that the “power to tax is the power to destroy.”
The Texas District Court went on to quote from the Supreme Court case of Harman v. Forssenius, 380 U.S. 528, 540, 85 S.Ct. 1177, 1185 (1965), when it said:
"It has long been established that a state may not impose a penalty upon those who exercise a right guaranteed by the Constitution. Frost v. Frost Trucking Co. v. Railroad Comm'n of California, 271 U.S. 583. ‘Constitutional rights would be of little value if they could be * * * indirectly denied,’ Smith v. Allwright, 321 U.S. 649, 664, ‘or manipulated out of existence,’ Gomillion v. Lightfoot, 364 U.S. 339, 345."
That Texas district court held the poll tax unconstitutional and invalid, and enjoi ned the state of Texas from requiring the payment of a poll tax as a prerequisite to voting. Taken on direct appeal to the Supreme Court of the United States, the jud gment of the district court was affirmed. See Texas v. U.S., 384 U.S. 155 (1966).
So if you don't believe you have waived your rights and come within a “taxable class” of subjects, I suggest that you make inquiry of the IRS and your State taxing entity and ask for copies of any statutes making you specifically liable for an income tax. I also suggest that you request copies of all documents of determinations made, with the documents of fact and law in support, that show specifically that you personally are obligated and have a "legal duty" to waive fundamental rights or that you are within some "taxable class" obligated to waive fundamental rights merely for exercising your right to work and exist. Also request any documents of fact showing how you may have brought yourself within the purview of a taxing statute that required the waiver of your rights.
What is most important is that you make the inquiry. What you get in response to your inquiry is not as important as what you don't get. Absent documented verification of a waiver or loss of rights, you can confidently claim your status of master over government and deny any "legal duty" as a subject to it, regardless of the decisions of any courts that assert that government, with their plenary power of taxation, can tax you to the point of destruction.
Robert L. “Bob” Minarik, 5288 N. 1000 W., Rochester, Indiana 46975, Ph. 574-542-9065