income tax

Years ago I discovered to my astonishment, anger and remorse that our government is collecting income tax devoid of legal authority. Therefore, I have publicly refused to file an income tax return for the past 12 years. If brought before a jury of my peers I will rely upon the following evidence.

1. Mens Rea, or “guilty mind,” is a central feature of criminal law. Criminal liability generally requires not only causing a prohibited harm or evil . . . but also a particular state of mind, an act done with bad purpose or evil intent. Therefore, it is essential to substantiate my intent for not filing, which is to:

  • Expose tyranny.
  • Scrap our hopelessly flawed and corrupt system of taxation.
  • During the 12 years I have not filed a return I published over a dozen columns in the Aspen Daily News, self-published a book, marched in parades and sat on the Pitkin County Court House steps. From start to present I have knowingly placed myself at risk as I document my stance.
  • In retaliation, the IRS assessed me for 11 million dollars they claim I owe for the year 2002 (I am a man of modest means). Then, without complying with due process as required by Section 6320 of the Internal Revenue Code, the IRS gained control over everything I own and stole liquid assets. This goes far beyond income tax into the heart of a government that is profoundly out of control.

2. The law I am allegedly violating is Section 7203 of the IRC “Willful Failure to File.” To convict, the government must prove two elements. First, that a citizen is required by law to file a return and second, that the failure to file is “willful.” In a fair trial the government can do neither.

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3. The Supreme Court ruled in U.S. v. Bishop [412 US 346] that, “The requirement of an offense committed willfully is not met if a taxpayer has relied in good faith upon a prior decision of this court.” I am relying, accompanied by additional evidence, on numerous Supreme Court decisions.

4. If the IRS required a citizen to file they would be in direct conflict with Supreme Court decisions. For instance, in Brushaber [240 US 1] the landmark case regarding the 16th Amendment, the Supreme Court actually ruled that a new, direct taxing power, not limited by apportionment or uniformity, would “Cause one provision of the Constitution to destroy another,” and “If acceded to would create radical and destructive changes to our Constitutional system.” To avoid these disasters the Supreme Court ruled “Taxation on income was in its nature an excise (indirect) tax entitled to be enforced as such.” Since an indirect tax must be uniform and income tax is obviously not, it is not entitled to be enforced.

In Stanton v. Baltic Mining Co. [240 US 103] we find: “The 16th Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation from being taken out of the category of indirect taxation to which it inherently belonged.”

  • The Harvard Law Review confirms that income tax is an indirect tax in vol. 29, pages 53-68 which states, in essence, that “In Brushaber, Chief Justice White, construed the 16th Amendment as a declaration that an income tax is “indirect” rather than making an exception to the rule that direct taxes must be apportioned.

In stark contrast and in a testament to tyranny and propaganda most Americans believe that the 16th Amendment created a direct tax without apportionment. Meanwhile, “radical and destructive changes to our constitutional system” are evident.

5. The Fifth Amendment states “No person shall be compelled in any criminal case to be a witness against himself.” The landmark case regarding the Fifth Amendment and income tax is Sullivan v. U.S. [274 U.S. 259]. Sullivan took the Fifth, “I refuse to file on the grounds that I may tend to incriminate myself.” The Supreme Court ruled that if Sullivan wished to take the Fifth he first had to file. However, taking the Fifth is absolutely, fundamentally different than our constitutional right “not to be a witness against oneself.” The former is a privilege, used primarily if subpoenaed in another’s trial, the latter is a right that the Supreme Court has never ruled on in relation to income tax. Sullivan had to file because he claimed a privilege, we supposedly have to file because he had to. Our government exploits our misunderstanding of privilege v. right to subvert the Constitution and force us to file.

6. In Boyd v. US [116 US 616] the Supreme Court ruled “A taxpayer may refuse to exhibit his/her books and records for examination on the ground that compelling him/her to do so might violate his/her right under the Fifth Amendment and constitute an illegal search and seizure under the Fourth Amendment.”

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  • Also from Boyd “It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment; a compulsory production of a private party’s books and papers, to be used against himself or his property in a criminal or penal proceeding, or for a forfeiture, is within the spirit or meaning of the Amendment.”

Given that Boyd v. US guarantees that a citizen can legally withhold books and records, the IRS would be in direct conflict with the Supreme Court if it required a citizen to file a return, which is simply a summary of books and records. Therefore, and for many other equally valid reasons, concern for brevity limits this discourse, the IRS does not require a citizen to file.

7. The title of Section 6012 of the IRC states “Persons required to make returns of income.” However, according to the IRC itself [section 7806(b)] a code section’s title is not part of the law. In the body of code section 6012, where the law resides, we find “Returns with respect to income taxes under subtitle A shall be made by the following…

  • The Supreme Court [Cairo v. Hect, 95 US 170] held “As against the government the word ‘shall’ when used in statutes is to be construed as ‘may’ unless a contrary intention is manifest.”
  • Also, “The word ‘shall’ in a statute may be construed to mean ‘may’ particularly in order to avoid a constitutional doubt.” [Fort Howard Paper v. Fox River Sanitary Dist., 26 NW 2nd 661].
  • The IRS could have, but does not, use the word “required” in the body of code section 6012. In other words, “Show Me the Law.”

8. There is also no law that requires withholding or paying estimated income tax. The IRC defines a “withholding agent” at IRC 7701(a) (16) as only required to deduct and withhold income tax from nonresident aliens and foreign corporations. Therefore, no law requires income tax be withheld from citizens living in America.

  • Title 26, Subtitle f, Chapter 68, Subchapter A, Part 1, Section 6654 of the IRC states “Failure by individual to pay estimated income tax (e) Exceptions… (2c) “If the individual was a citizen or resident of the United States throughout the preceding year.” Every year millions of citizens pay estimated income tax while their exemption is hidden deep in the IRC.

9. In fact, the IRS has insisted for decades that filing a return and paying income tax is based on “voluntary compliance.” In 1971 the 1040 booklet declared “Each year American taxpayers voluntarily file their tax returns and make a special effort to pay the taxes they owe.” In 1980 the 1040 booklet stated “The primary task of the IRS is to collect taxes under a voluntary compliance system.” Webster’s defines “voluntary” as “something done of one’s own free will, without legal obligation.”

  • The Federal Register [vol. 39 March 29, 1974] states “The mission of the IRS is to encourage and achieve the highest possible degree of voluntary compliance with the tax laws and regulations.”
  • The Supreme Court ruled in Flora v. U.S. that “Our system of taxation is based upon voluntary assessment and payment, not upon distraint.” [357 U.S. 63]

10. In 1953 Dwight E. Avis, then Director of the Alcohol and Tobacco Division of the IRS, testified under oath, before Congress, that “Your income tax is 100% voluntary tax and your liquor tax is 100% enforced tax. Now the situation is as different as night and day.” [Hearings: Internal Revenue Investigation]

  • Note, I sincerely believe the honorable Dwight E. Avis.

11. The Supreme Court ruled in Cheek v. U.S. [498 US 192] that in relation to income tax “A good faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable.”

  • The 1998 U.S. Attorney’s Bulletin 19 states “In the seminal case of Cheek v. U.S. the Supreme Court held that a taxpayer’s ‘belief’ that he or she was not required to file a tax return, however incredible such a misunderstanding of and beliefs about the law might be, does not have to be objectively reasonable. Rather, the standard is a subjective one.”

12. While this discourse proves, beyond a reasonable doubt, that I am not required to file, the Supreme Court has ruled, thus it is a law of this land, that I need not be legally correct. I need only possess a sincere belief. As I have revealed why, as my actions have proven, I have a good faith belief that I am not required to file, thus my failure to file is not willful.

13. Irwin Schiff is the Godfather of the tax protester movement. Irwin opened my eyes and changed my world view. He’s 86 years old and has been in prison for a long time after our government held his appeal for over a year, releasing it mere hours before his verdict, ruling that Irwin’s arguments were “frivolous.”

Will Kesler is an anti-income tax activist living in Aspen, Colorado.

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Courtesy of Activist Post.