Tax protester history

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Tax protesters

History Arguments Constitutional Statutory Conspiracy Notable tax protesters Robert Clarkson - Vivien Kellems Mitch Modeleski - Irwin Schiff Richard Michael Simkanin William J. Benson Wayne C. Bentson Related topics The Law That Never Was Cheek v. United States Titles of Nobility Amendment Tax avoidance and tax evasion Tax resistance Christian Patriot Posse Comitatus

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A tax protester is a person who denies that he or she owes a tax based on the belief that the constitution, statutes, or regulations do not empower the government to impose, assess or collect the tax. The tax protester may have no dispute with how the government spends its revenue. This differentiates a tax protester from a tax resister, who seeks to avoid paying a tax because the tax is being used for purposes with which the resister takes issue.

Contents 1 Origin of American tax protesters 2 The modern tax protester movement 2.1 Early examples 2.2 Origin of the term, "Tax Protester" 2.3 Other names used 2.4 Current level of civil and criminal tax protester cases 3 Prohibition on IRS use of the designation 4 Old arguments and new 5 Notable tax protesters 5.1 Irwin Schiff 5.2 Bonita Lynne Meredith 5.3 Wayne C. Bentson 5.4 Larken Rose 5.5 Charles Thomas Clayton 5.6 William J. Benson 5.7 Robert B. Clarkson 5.8 Richard M. Simkanin 5.9 Kent Hovind 5.10 Edward Lewis Brown and Elaine A. Brown 6 Notes

[edit] Origin of American tax protesters

People have protested taxation at various times in the history of the United States, sometimes violently. The American Revolution originated with protests against the Stamp Act and Townshend Acts by which Britain sought to tax the American colonies. In 1794, settlers in western Pennsylvania responded to a federal tax on liquor with the Whiskey Rebellion. The adverse effect of the Tariff of 1828 on southern commerce led South Carolina to reject the tariff and threaten secession. In each of these cases, some opponents of the tax in question contended that it was not merely bad, but exceeded the authority of the body that enacted it.

The assertion of federal authority in the American Civil War put an end to the organized tax protests that had marked the republic’s early years. The war saw the enaction of the first federal income tax, future versions of which would become the federal government’s primary source of revenue. Nonetheless, tax delinquency was widespread during the presidency of Franklin D. Roosevelt, when income taxes increased dramatically to pay for New Deal programs and U.S. involvement in World War II.

[edit] The modern tax protester movement

The modern tax protester movement originated later in the 20th century, as some came to assert that the federal tax on individual income is nonexistent, unconstitutional, or inapplicable to various forms of income such as wages.

[edit] Early examples

Connecticut industrialist Vivien Kellems was an early advocate of the position that the tax laws were ineffective. In 1948, frustrated that the government had not reduced the historically high tax rates assessed during World War II, Kellems refused to withhold payroll taxes for her employees. She did not dispute the propriety of the tax at that time, but contested the power of the government to require her to collect taxes on its behalf.

Another early protester was Arthur J. Porth, who argued that the Sixteenth Amendment to the U.S. Constitution should itself be declared unconstitutional, under his theory that the income taxes under the Internal Revenue Code of 1939 imposed "involuntary servitude" in violation of the Thirteenth Amendment. That argument was ruled to be without merit in Porth v. Brodrick, United States Collector of Internal Revenue for the State of Kansas^[1]. He continued his tax protester activities and was eventually convicted of willful failure to file returns and other tax crimes; see United States v. Porth^[2].

[edit] Origin of the term, "Tax Protester"

The earliest official use of the term, "tax protester" in reported Federal court decisions appears to have occurred in the mid-1970s. The first two federal cases to use the term in this manner^[3] were Gilbert v. Miriami^[4] and United States v. Scott,^[5], coincidentally decided only two days apart. In Gilbert v. Miriami, the taxpayer (Walter Gilbert) sued the District Director of Internal Revenue (Charles Miriami) asking for injunctive and declaratory relief from enforcement of the internal revenue laws, including a request for a judgment that the statute prohibiting most suits to restrain the assessment or collection of Federal taxes was unconstitutional. The court rejected the taxpayer's claims. In Scott, the court noted that an undercover government agent had sworn out an affidavit regarding the agent’s infiltration into a "tax protester" organization. The case itself upheld the conviction of the leader of that organization, who had failed to file tax returns from 1969 to 1972, based on Constitutional arguments against the validity of the income tax.

[edit] Other names used

Ideas associated with the tax protester movement have been forwarded under different names over time. These ideas have been put forth, for example, in the broader Christian Patriot and Posse Comitatus movements, which generally assert that the Constitution has been usurped by the federal government. More recently, tax protesters have styled themselves as the "Tax Honesty Movement".

[edit] Current level of civil and criminal tax protester cases

Tax protester cases appear to be a relatively small percentage of total Federal tax decisions. An "unscientific" May 2, 2006 search of one database used by tax lawyers, certified public accountants, and other tax professionals revealed about 56 decisions in the year 2003 where the term "tax protester" was used and 42 such decisions in 2004. About 72 tax protester decisions were rendered in 2005, or less than 7% of the approximately 1,121 Federal tax decisions (including Tax Court and all district court, bankruptcy court, appeals courts and U.S. Supreme Court tax cases) rendered during that year. These statistics do not take into account the fact that some reported, rendered decisions involve multiple levels (trial court, appellate court) of the same case. The statistics also do not take into account the decisions for which the courts rendered a judgment but no written opinion. The statistics include both civil and criminal tax cases.

[edit] Prohibition on IRS use of the designation

In 1998, the U.S. Congress passed a prohibition on the use of the term "illegal tax protester" by officers and employees of the Internal Revenue Service. The prohibition stemmed from complaints about the excessive use of the term not only to describe persons who raised frivolous theories, but against any persons who protested the amount of their tax assessment. Specifically, section 3707 of the Internal Revenue Service Restructuring and Reform Act of 1998^[6] states that IRS personnel:

(1) shall not designate taxpayers as illegal tax protesters (or any similar designation); and

(2) in the case of any such designation made on or before the date of the enactment of this Act [i.e., made on or before July 22, 1998]--

(A) shall remove such designation from the individual master file; and

(B) shall disregard any such designation not located in the individual master file."

Following this ban, some agents have resorted to euphemisms like "Constitutionally challenged" to replace the banned designation.[2] Further, subsection (b) of section 3707 specifically authorized IRS personnel to use the term "nonfiler" to describe certain taxpayers.

This prohibition has had no bearing on the courts, which continue to use the term. For instance, in Hattman v. Commissioner^[7], a per curiam opinion issued in September of 2005 (and joined by future Supreme Court Justice Samuel Alito), the United States Court of Appeals for the Third Circuit stated:

It is readily apparent that Hattman's appeal and "petitions" in this Court, as well as his petition for redetermination filed in the Tax Court, are nothing other than the thinly veiled arguments of a tax protester. These types of tax protester arguments have been rejected as patently frivolous, and require no additional analysis here.

Ironically, the Congressional Committee Report on the legislation that introduced the prohibition on the use of the term by the IRS used the term "tax protester" in a different section to describe frivolous anti-tax arguments that should be given no weight. In a section of the report discussing the burden of proof in tax hearings, the Committee stated that although the IRS carries the burden of overcoming evidence that a tax assessed is not owed, "Implausible factual assertions, frivolous claims, or tax protestor-type arguments are not credible evidence."[3]

[edit] Old arguments and new

Main article: Tax protester arguments

Since the advent of the tax protester movement, all the arguments that have been raised in actual court proceedings have ultimately been deemed incorrect by the courts. Many tax protesters have taken these setbacks to mean that the courts, the Congress, and the executive branch are conspiring to continue receiving the revenue which pays their salaries and supports their benefits.

Within the tax protester movement, there has been discord as to which arguments are appropriate to bring, based in part on the belief that different courts will respond differently to certain arguments. Attorney Larry Becraft, who has spent much of his career defending tax protesters, has recently decried "innocents who today believe certain legal arguments popular years ago, but which were litigated by ill prepared, desperate people and lost. To continue going down such dead end roads and to follow these dead arguments will only result in disaster." [4]

Furthermore, con artists have been known to take advantage of the belief of tax protesters by engaging in "tax scams." Such scams have included "the marketing of bogus trusts, 'untax' kits or other devices that would ostensibly allow people to avoid paying income taxes[5]." It should be noted, however, that most tax protesters are not con artists.

[edit] Notable tax protesters

Some people who do not pay income taxes have been able to do so successfully for many years. Others have been arrested for tax evasion or other tax crimes, and have been prosecuted, convicted and imprisoned. The following sections describe some notable proponents of tax protester arguments.

[edit] Irwin Schiff

Irwin Schiff has been convicted on three separate occasions in connection with Federal tax crimes: (1) for tax years 1974 and 1975; (2) for tax years 1980 through 1982 and, (3) most recently, for tax years 1997 through 2002, and has spent several years in Federal prisons. Among the arguments raised by Irwin Schiff in various court cases are the argument that no tax assessment can be made unless a tax return has been voluntarily filed; the argument that the Internal Revenue Service, in enforcing the income tax, seeks to impose a tax not authorized by the taxing clauses of the United States Constitution; and the argument (still displayed, as of early 2007, on Schiff's internet web site) that "[f]or tax purposes, 'income' only means corporate 'profit.' Therefore, no individual receives anything that is reportable as 'income.'" All the arguments were rejected by the courts.

Schiff's latest convictions came in late 2005, when he was found guilty of multiple counts of filing false tax returns, aiding and assisting in the preparation of false tax returns filed by other taxpayers, conspiring to defraud the United States, and income tax evasion.[6] Schiff was sentenced to 13 years and 7 months in prison (including a year for contempt of court), and was ordered to pay over $4.2 million in restitution. He is scheduled for release in October of the year 2016.

[edit] Bonita Lynne Meredith

Bonita Lynne Meredith was sentenced in June of 2005 to ten years and one month in prison for conspiracy, four counts of mail fraud, two counts of using a false social security number, making a false statement in a passport application, and five counts of failing to file a tax return. In its press release following the sentencing of Ms. Meredith, the Department of Justice stated: "The evidence presented during a 13-week trial showed that beginning in 1991 and continuing until April 2002, Meredith conducted seminars at which she sold books and bogus 'pure trusts' to people with the purpose of leading them to believe they could legally shield income and assets from taxation. Meredith and her co-defendants encouraged and assisted taxpayers by forming phony 'pure trusts,' opening bank accounts with phony Taxpayer Identification Numbers, filing fraudulent income tax returns and encouraging taxpayers to stop filing income tax returns." Four other persons convicted of conspiracy in connection with the activities of Ms. Meredith were also sentenced to prison.[7]

Ms. Meredith is imprisoned at the Victorville Federal Correctional Center (Victorville Medium II) near Adelanto, California, and is scheduled for release in February of the year 2013.[8]

[edit] Wayne C. Bentson

In May of 2005, the IRS announced that Wayne C. Bentson was sentenced to four years in prison and three years of supervised release, and was ordered to pay the IRS over $1.1 million in restitution. In December of 2004, Bentson was convicted on charges of conspiracy and willful failure to file his income tax returns. According to the U.S. Justice Department, Bentson told clients that he was a tax expert and falsely advised clients that the tax laws applied only to individuals living in the Virgin Islands, Guam, and Puerto Rico. According to the Justice Department, Bentson also falsely advised clients that they were not taxpayers, that they had not earned income, and that they were not required to pay federal income tax. Some witnesses reportedly testified during Bentson's trial that they also had been prosecuted after following Bentson’s advice.[9] Bentson is incarcerated at the Federal Correctional Institution-LaTuna at Anthony, Texas, near El Paso.[10]

[edit] Larken Rose

Larken Rose, an adherent of the 861 argument, was sentenced to 15 months in prison for willful failure to file income tax returns in five years in which the government alleged he earned approximately $500,000 in income.[11]. He was released from prison in December of 2006.[12]

[edit] Charles Thomas Clayton

On August 29, 2006, Charles Thomas (Tom) Clayton, M.D., was found guilty by a jury in Federal court in Austin, Texas, of two counts of willfully making false statements on tax returns and six counts of willfully failing to file tax returns. According to The Courier of Montgomery County, "Clayton's defense at the trial centered on the '861 argument' -- a defense used numerous times in previous years, but never successfully [ . . . . ]"[13] According to an April 7, 2006 Justice Department news release shortly after he was indicted, Clayton failed to file income tax returns for years 1999 through 2004 while receiving over $1.5 million in gross income. The government also charged that for years 1997 and 1998 Clayton filed false amended returns, claiming refunds of over $160,000.[14]

Criminal investigators of the Internal Revenue Service had gathered information on Clayton during the IRS investigation of Larken Rose (see above). According to the prosecutor's office, Clayton "disregarded multiple written notices from the Internal Revenue Service informing him that his 861 argument was without merit," and Clayton "had also been told the same thing by two Certified Public Accountants."^[8]

On December 15, 2006, Clayton was sentenced to five years in prison and a fine of $50,000, plus a requirement that he pay over $7,400 in prosecution costs. Clayton is incarcerated at the Federal Correctional Institution at Bastrop, Texas, and is scheduled for release in June of the year 2011.[15]

Under the sentence, Clayton will be subject to supervision for one year following his prison term.^[9]

[edit] William J. Benson

William J. Benson, the co-author of the book The Law that Never Was (in which Benson had argued that the Sixteenth Amendment was not properly ratified), was convicted of tax evasion and willful failure to file tax returns in connection with over $100,000 of unreported income, and his conviction was upheld on appeal. He was sentenced to four years in prison and five years of probation. See United States v. Benson.^[10] Benson's "Sixteenth Amendment was not properly ratified" argument was rejected.

[edit] Robert B. Clarkson

Robert B. Clarkson was indicted in 1994 for conspiracy to impede, impair, obstruct and defeat the functions of the Internal Revenue Service under 18 U.S.C. § 371. Clarkson gave seminars in which he asserted that it was legal to claim false exemptions, to hide income, and to refuse to file income tax returns or pay income tax. He and two associates were convicted, and the convictions were upheld on appeal.^[11] He was sentenced to 57 months in prison.^[12] and was released in 1999.[16]

[edit] Richard M. Simkanin

Richard Michael Simkanin is a tax protester who espoused the "income taxes are voluntary" argument. He is currently serving a seven year sentence for convictions on ten counts of willfully failing to collect and pay over employment taxes under 26 U.S.C. § 7202, fifteen counts of knowingly making and presenting false, fictitious or fraudulent claims for refund of employment taxes under 18 U.S.C. § 287 and 18 U.S.C. § 2, and four counts of willfully failing to timely file federal income tax returns under 26 U.S.C. § 7203.^[13]

[edit] Kent Hovind

In November of 2006, Kent Hovind was convicted of twelve counts of willful failure to collect, account for, and pay over Federal income taxes and FICA taxes under 26 U.S.C. § 7202, forty-five counts of knowingly structuring transactions in Federally-insured financial institutions to evade the reporting requirements of 31 U.S.C. § 5313(a), in violation of 31 U.S.C. § 5324, 18 U.S.C. § 2 and 31 C.F.R. sec. 103.11, and one count of corruptly endeavoring to obstruct and impede the administration of the internal revenue laws under 26 U.S.C. § 7212.^[14] Twelve of the charges were for failing to pay employee-related taxes, totaling $473,818, and 45 of the charges were for evading reporting requirements by making multiple cash withdrawals just under the $10,000 reporting requirement (smurfing).

Hovind had argued that he was not liable for taxes that and his ministry did not have to pay taxes because his workers were "missionaries" not "employees".^[15] In previous dealings with the IRS, Hovind had asserted tax protester arguments including the “income taxes are voluntary” argument.^[16]

The government charged that Hovind falsely listed the Internal Revenue Service as his only creditor in a bankruptcy case, and that Hovind filed a false and frivolous lawsuit against the IRS in which he demanded damages for criminal trespass, made threats of harm to those investigating him and to those who might consider cooperating with the investigation, filed a false complaint against IRS agents investigating him, filed a false criminal complaint against IRS special agents (criminal investigators), and destroyed records.^[17]

Former and current workers, IRS agents, a bank employee, and a lawyer of a non-profit Christian organization testified in the trial. Workers testified that they had to punch time cards, had vacation and sick days; while others testified Hovind claimed he had "beat" the tax system.^[18]

On January 19, 2007, Hovind was sentenced to ten years in prison and three years of probation, and was ordered to pay the federal government restitution of over $600,000.

[edit] Edward Lewis Brown and Elaine A. Brown

On January 18, 2007, Edward Lewis Brown was found guilty by a jury in a Federal District Court in Concord, New Hampshire of one count of conspiracy to defraud the United States under 18 U.S.C. § 371, one count of conspiracy to structure financial transactions to evade the Treasury reporting requirements in violation of 18 U.S.C. § 371, 31 U.S.C. § 5325 and 31 U.S.C. § 5324(a)(3), and one count of structuring financial transactions to evade the Treasury reporting requirements and aiding and abetting under 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2. On that day the same jury found his wife Elaine A. Brown guilty one count of conspiracy to defraud the United States under 18 U.S.C. § 371, five counts of tax evasion and aiding and abetting under 26 U.S.C. § 7201 and 18 U.S.C. § 2, eight counts of willful failure to collect employment taxes under 26 U.S.C. § 7202 and aiding and abetting under 18 U.S.C. § 2, one count of conspiracy to structure financial transactions to evade the Treasury reporting requirements in violation of 18 U.S.C. § 371, 31 U.S.C. § 5325 and 31 U.S.C. § 5324(a)(3), and two counts of structuring financial transactions to evade the Treasury reporting requirements and aiding and abetting under 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2.^[19]

The Browns' main argument for why they did not owe taxes was that they had not been presented with any statute or law that required them to pay income taxes^[20] (see Tax protester statutory arguments). The tax evasion convictions of Mrs. Brown involved the failure to report income of $1,310,706 over a period of five years.^[21]. Mr. Brown faces a possible fifteen year prison sentence, and Mrs. Brown faces a possible eighty-five years in prison. The Browns' sentencing is scheduled for April 24, 2007.^[22]

[edit] Notes