Re: Fifth Amendment vs. Tax Returns

The Baileys (
Mon, 10 May 1999 19:43:57 -0400

Freespeak wrote:

>I think it's more appropriate to think in terms
>of using an overall strategy for dealing with the

The problem is this strategy was used as far back as 1927 and was ruled ineffective by the Supreme Court. _Sullivan_ (47 SCt 607).

>An arsenal of "weapons" is available to do this.
>The 5th Amendment is one of these weapons. "Weapons"
>are available to effectively deal with all the
>issues you raise below.

Evidently, another individual responded to my post, let me repeat my response here since you appear to be raising the same issues (I leave the individual as anonymous since he responded via private email):

Anonymous stated:

"For illustration purposes, let's take section 7203, "Willful failure to file". This sections states that it is a misdemeanor towillfully fail to file a return that is required. Well, there are hundreds of different returns. If you are required to file an income tax return, this would not apply to a return that is used for the filing of manufacturing taxes on the manufacture of bus chassis'. There needs to be an underlying requirement, which must be stated in the charge. Unfortunately, when this charge is made, there is never an underlying statute or return mentioned. How can one plea guilt or innocence to a charge when the charge is not clear? The reason they do not is that most of the time, they are trying to use it agaonst someone who did not file a 1040. However, the law requires very few citizens to file a 1040. That is why they never list the form required in the charge (more on this later)."

The Supreme Court has addressed this issue already, 70 years ago no less. In _Sullivan_ (47 SCt 607), the Court stated that "[p]rivilege against incrimination in Fifth Amendment is not a defense to an indictment charging failure to file return, and does not authorize a refusal to state the amount of income, though the taxpayer,s income was made in crime." To apply the Fifth Amendment in the manner you are describing was described by the Court as "extravagant" and "extreme" (actually referring to a less extreme application of only refraining from disclosing illegal activities).

Furthermore, Section 7203 has been successfully applied on many occasions against "Fifth Amendment" protestors. See _Vance_ (730 F.2d 736) and _Grabinski_ (727 F.2d 681). Given the judicial stance in the Appellate courts which is further buttressed by the Supreme Court, I would like to see the counsel who would assert your reasoning in a proceeding.

Additionally, your own personal version of 'constitutionality' will not qualify for the good faith defense. See _Payne_ (800 F.2d 227).

If a client came to me wanting to assert this defense I would tell him I did not want to steal his money because there is no chance he would prevail. Why not assert that any payment is not made in cash but in Federal Reserve Notes that are mere promises to pay and are not redeemable in gold or silver? (though the courts have shot this down too I believe).

Anonymous later wrote:

"According to 26 USC 6331(a), levy may only be made on the accrued salary or wages of an officer, employee or elected official of the United States or District of Columbia. Furthermore, levy must be made through seizure. Seizure, according to the CFR, may only be made (for tax reasons) if the taxable activity in question is a stamp tax (i.e., manufacture for retail re-sale of alcihil, tobacco, or firearms)."

Perhaps you should flip back to Section 6321 and reconsider this stance.

Anonymous later wrote:

"Care to provide cites for these cases. This argument has won several times as well. Again, they can assess a tax if: it is a stamp tax, a return was filed, or they have consent form the "taxpayer". That is what the law says - exactly!"

Check out the cites I've referred to above and citate them back as well.

One last thing, let me bolster my point of 'vicarious liability' with the following excerpt from a respected treatise concerning tax protestors:

>The most commonly used civil sanctions against tax protestors are
the damages of up to $25,000 that the Tax Court routinely imposes upon taxpayers whose petitions assert frivolous positions or are filed merely for delay; the $500 administrative penalty the IRS exacts for filing a frivolous tax return; and the routine imposition by both district courts and courts of appeals of costs, double costs, and the government,s attorney,s fees on taxpayer litigants who raise frivolous arguments against the tax laws.<

In responding to this message, be mindful of the _Payne_ decision when proselytizing a personal view of constitutionality and address the Courts. Address how your position has such force that a judge would discard the words of every Appellate Circuit, the Supreme Court of the United States, among other authorities.


Doug Bailey