SUPPORTING BRIEF #2: INCOME TAX, AS IMPOSED UPON LABOR, IS VOID FORVAGUENESS AND DEVOID OF ANY VOLUNTARY NATURE, Page 1
*********************************************************************
In the case of Flora v. U.S., we find the following:
"Our system of taxation is based upon voluntary assessment and payment, not upon distraint." Flora v. U.S., 362 US 145, 80 S. Ct. Rptr. at page 647
The excessive financial burden that the "income tax" imposed upon him combined with the disruption of his family life led this researcher to find an accurate understanding of the legal nature of the "income tax" as directly imposed upon his labor. It was a shocking revelation when he read that the "income tax" was based on "voluntary assessment and payment, not upon distraint (force)".
If the "income tax", as directly imposed upon his labor, is voluntary, then why is it presented as positive law. Why is no clear statement made to the people by the Internal Revenue Service that a direct tax upon their labor is voluntary? There is no clear statement on the face of any of the forms the Internal Revenue Service provides the people that explains the voluntary nature of the "income tax".
Upon further research, this researcher decided to examine the instruction booklets that are provided the people each year that aid them in filling out their tax forms to see if there was any statement regarding the voluntary nature of the "income tax". Let us examine the 1040 instruction booklets for the years 1988 through 1990. The copies made from the 1040 instruction booklets will be marked exhibits A, B, & C respectively.
Upon opening the 1988 instruction booklet (exhibit A), we read on page 3 information about the Privacy Act and Paperwork Reduction Act. The first paragraph states:
"The law says that when we ask you for information we must tell you: our legal right to ask for the information, why we are asking for it, and how it will be used. We must also tell you what could happen if we do not receive the information and whether your response is voluntary, needed for a benefit, or mandatory under the law."
The second paragraph states:
"This notice applies to all papers you file with us, as well as any questions we ask you so we can complete, correct, or process your return; figure your tax; and collect the tax, interests, or penalties. Internal Revenue Code sections 6001, 6011, and 6012(a) say that you must file a return or statement with us for any tax for which you are liable. Your response is mandatory under these sections. Code section 6109 says that you must show your social security number on what you file, so we know who you are, and can process your return and other papers. You must fill in all parts of the tax form that apply to you. However, you do not have to check the boxes for the Presidential Election Campaign Fund."
The third paragraph states:
"We may give the information to the Department of Justice and to other Federal agencies, as provided by law. We may also give it to certain cities, states, the District of Colombia, U.S. commonwealths or possessions, and certain foreign governments to carry out their tax laws."
The fourth paragraph states:
"If you do not file a return, do not give the information asked for, or give false information, you may be charged penalties and you may be subject to criminal prosecution. We may also have to disallow the exemptions, exclusions, credits, deductions, or adjustments shown on your tax return. This could make the tax higher or delay any refund. Interest may also be charged."
From the reading of these first four opening paragraphs in the 1988 instruction booklet, what impression is imposed upon the human mind? Is it that the tax is voluntary or mandatory? Clearly the latter term applies. The fourth paragraph aforementioned clearly spells out the penalties for not complying with the Internal Revenue Service requests for information or not filing a return. The first paragraph says that your response to some requests for information may be voluntary, but the second paragraph only tells you of the sections in the Internal Revenue Code that make your response mandatory under the law. The tax is therefore presented as mandatory under the law and no comment is made as to the voluntary nature of the tax. It should also be noted on page 4 of the 1988 instruction booklet, that the "Letter from the Commissioner" makes no reference to the voluntary nature of the tax.
The 1989 instruction booklet (exhibit B) is simply a repeat of the 1988 instruction booklet. The "Letter from the Commissioner" on page 4 makes no reference as to the voluntary nature of the tax.
The 1990 instruction booklet (exhibit C) is simply a repeat of the prior two years. The "Letter from the Commissioner" makes no reference as to the voluntary nature of the tax. The Internal Revenue Service Instruction booklets therefore give no help in explaining why "our system of taxation is based on voluntary compliance and payment, not upon distraint" as mentioned earlier in this brief in Flora v. U.S.. To the contrary, the tax is presented to the public as positive law and the penalties for noncompliance are clearly spelled out. In short, the force of the law and the fear of not complying with the law are placed before the people. Hence the following maxim applies:
Nihil consensui tam contrarium est quam vis atque metus. Nothing is so contrary to consent as force and fear. Dig. 50. 17. 116; Broom, Max. 278, n.
The voluntary nature of the "income tax" is hidden from the public. It is puzzling why the Internal Revenue Service, under the direction and control of the Secretary of the Treasury and the Commissioner of Internal Revenue, sees fit to keep this information hidden from the public. Whenever the rights of the people are involved, it is the duty of government agencies to clearly spell out the issues surrounding the rights. This must be so. Consider the following maxim:
Benigne faciendæ sunt interpretiones propter simplicitatem laicorum, ut res magis valet quam pereat; et verba intentioni, non e contra, debent inservire. Construction should be liberal on account of the ignorance of the laity, so that the subject matter may avail rather than perish; and words must be subject to the intention, not the intention of the words. Co. Litt. 36 a; Broom, Max. 540, 565, 645; 11 Q.B. 852, 856, 863, 870; 4 H.L. Cas. 556; 2 Bla. Com. 379; 1 Bulstr. 175; 1 Whart. 315.
The people cannot be expected to have the understanding of the law that the agencies of government do that operate upon them. The majority of people are occupied working and earning a living, raising their families, and so forth. It is therefore incumbent upon any government agency that operates upon the people to advise the people how their operations effect the people's rights and whether or not the individual is waiving any rights by placing themselves under the authority of the government agency. It is puzzling in America, where we have a society where rights and duties are relative and mutual, that in criminal actions the individual must be clearly advised of their rights, but whenever the rights of the individual are affected by the actions of other governmental agencies, though not criminal, no duty is incumbent upon the governmental agency to advise the individual about the issues that effect their rights as regards that governmental agencies operation upon them.
It was therefore necessary for this researcher to look elsewhere in determining why the income tax, as directly imposed upon his labor, was based on voluntary compliance and payment, not distraint. An extensive study of cases mainly from the Supreme Court of the United States was what gave him an accurate understanding. The answer why the "income tax", as directly imposed upon labor, has to be voluntary is brought out in the case of Murdock v Commonwealth of Pennsylvania 319 U.S. 105.
7. Constitutional Law ----283
The power to tax the exercise of a privilege is the power to control
or suppress its enjoyment. U.S.C.A. Const. Amends. 1, 14.
8. Constitutional Law ----283
A state may not impose a charge for the enjoyment of a right granted
by the Federal Constitution. U.S.C.A. Const. Amends. 1, 14. Murdock v
Commonwealth of Pennsylvania, 319 US 105, 63 S. Ct. Rptr. at page 871.
Mr. Justice Douglas, in speaking for the Court in the Murdock case, opened by stating that the tax that was in question in the case was an ordinance in the City of Jeannette, Pennsylvania that was some forty years old. This ordinance required any person engaged in door to door solicitation to obtain a license to transact their business (see pages 871 & 872). Mr, Justice Douglas then addressed who the petitioners were in this case and their activities.
"Petitioners are "Jehovah's Witnesses". They went about from door to door in the City of Jeannette distributing literature and soliciting people to 'purchase' certain religious books and pamphlets, all published by the Watch Tower Bible & Tract Society. The 'price' of the books was twenty-five cents each, and the 'price' of the pamphlets five cents each..... None of them obtained a license under the ordinance. Before they were arrested each had made 'sales' of books. There was evidence that it was their practice in making these solicitations to request a 'contribution' of twenty-five cents each for the books and five cents each for the pamphlets but to except lesser sums or even donate the volumes in case an interested person was without funds..... Petitioners were convicted and fined for violation of the ordinance. Their judgements of conviction were sustained by the Superior Court of Pennsylvania against their contentions that the ordinance deprived them of the freedom of speech, press, and religion guaranteed by the First Amendment. The cases are here on petitions for writs of certiorari...." supra, at page 872.
We can see that the ordinance wasn't being attacked as being unconstitutional as a whole, but unconstitutional as applied to the religious activities of the "Jehovah's Witnesses". The Court discredited the state's position that the Witness activities were commercial in nature.
"But the mere fact that the religious literature is 'sold' by inherent preachers rather than 'donated' does not transform evangelism into a commercial enterprise. If it did, then the passing of the collection plate in church would make the church service a commercial project." supra, at page 874.
It was also contended by the state that the license tax imposed would not suppress the enjoyment of the rights in question. The Court also refuted this argument.
"But this is to disregard the nature of this tax. It is a license tax- a flat tax imposed upon the exercise of a privilege granted in the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution." supra, at page 875.
If the state cannot impose a charge for the enjoyment of rights granted by the federal constitution, then it must follow that neither can the federal government do so.
Research has clearly shown that both the "right to labor" and the "right to work and earn a livelihood", being so closely intertwined, are rights protected by the Federal Constitution, namely, by the 5th, 9th and 14th Amendments. Therefore a tax imposed directly upon the enjoyment of these rights would have to be voluntary because the enjoyment of these rights, being secured by the Federal Constitution, could not stand the test of the Constitution if the tax were made a positive law, for it would be a tax imposed upon the enjoyment of rights secured by the Federal Constitution.
Another case that clearly shows that a tax cannot be imposed upon the enjoyment of rights secured by the Federal Constitution is Grosjean v American Press Co. 297 U.S. 233.
11. Constitutional Law ----90, 274
First and Fourteenth Amendments were intended to preclude Congress
and the states, from adopting any form of restraint upon printed
publications, or their circulation, including those restraints which
had theretofore been effected by means of censorship, license, and
taxation, and from taking any government action which might prevent
such free and general discussion of public matters as seems essential
to prepare the people for an intelligent exercise of their rights as
citizens. (Const. Amends. 1, 14, § 1).
12. Constitutional Law ----287
Licenses ----7(1)
State statute imposing license tax for privilege of engaging in
business of selling advertising upon all publishers of newspapers or
magazines having weekly circulation of more than 20,000 copies
heldunconstitutional under due process clause of the Fourteenth
Amendment because it abridges the freedom of the press. (Acts La. No.
23 of 1934, § 1; Const. Amend. 14, § 1) Grosjean v American
Press Co., 297 US 233, 56 S. Ct. Rptr. at pages 444 & 445.
In 1913, the 16th Amendment to the Federal Constitution was adopted. Also, in that same year, the Tariff Act was passed. In this Act, there were income tax provisions (38 Stat. 166). The question therefore arises: Did the adoption of the 16th Amendment and the income tax provisions of the Tariff Act grant any new taxing power to Congress? The answer to this is clearly "no". In the case of Brushaber v Union Pacific R.R. 240 U.S. 1, Mr. Chief Justice White stated:
"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 effects of this erroneous assumption will be made clear by generalizing the many contentions advanced in argument to support it..." Brushaber v Union Pacific R.R Co., 240 US 1, 36 S. Ct. Rptr. at page 239.
As we can see, the Court in Brushaber stated that the assumption that the 16th Amendment gave new taxing power to Congress was an erroneous assumption. Hence, the taxing power still remained within the original instrument of the Constitution. If an Amendment to the Constitution can grant no new taxing power, then it follows that an Act of Congress can neither confer no new taxing power beyond that contained in the Constitution. The question therefore arises: What was the view of the Brushaber Court as regards the "income tax" being a tax directly imposed upon labor? Mr. Chief Justice White quoted the case of Pollock v. Farmer's Loan and Trust Co., 157 U.S. 429, in the Brushaber case. In the Pollock case, an "income tax" law was declared unconstitutional for the following reasons:
"The whole was, however, declared unconstitutional on the grounds that to permit it to thus operate would relieve real estate and invested personal property from taxation and would leave the burden of the tax to be borne by professions, trades, employments, or vocations; and in that way what was intended as a tax on capital would remain, in substance, a tax on occupations and labor - a result which, it was held, could not have been contemplated by Congress." Brushaber v Union Pacific R.R. Co., 240 US 1, 36 S. Ct. Rptr. at page 241.
It is clear that the "income tax" that was declared unconstitutional in Pollock was a tax that was intended to be "a tax upon capital".
Capital. Accumulated goods, possessions, and assets, used for the production of profits and wealth. Owners' equity in a business. Often used equally correctly to men the total assets of a business. Sometimes used to mean capital assets. Black's Law Dict. 6th Ed., pages 208-209.
In other words, the "income tax" in question in the Pollock case was a tax upon business activity. Those persons doing business for gains and profits were the objects of the tax. There can be little doubt that persons doing business for gains and profits have to, in the majority cases, use the labor of human beings to produce their product or provide their service. The Court in Pollock recognized that the "income tax" considered could result in a tax, in substance, being directly imposed upon occupations and labor, and this would be unconstitutional since the Congress would be taxing rights secured by the Federal Constitution. The tax would, in fact, be a tax upon the enjoyment of the most sacred property right the people had, their right to labor. The Court in the Pollock case, therefore rightly stated that directly taxing occupations and labor would not be something that Congress contemplated. It is indeed strange that, in the days of the Pollock and Brushaber Courts, it was the position of the Court that a tax being imposed directly upon labor was something Congress could not have contemplated, and today the people are led to believe that an "income tax" being directly imposed upon labor was what Congress always contemplated by imposing an "income tax".
Quæ ab initio non valent, ex post facto convalescere non possunt. Things invalid from the beginning cannot be made valid by subsequent act. Trayner, Max. 482.