It is rumored that the author of the following Treatise was an Attorney who was employed by employees of an Internal Revenue Service Center. It appears that over the years at the upper level of the IRS; administrators have not been claiming their "Wages" as taxable income on their tax returns. Being under pressure from an "internal office directive", any new administrator coming into the IRS was not to be informed that his/her wages was not classified as "taxable income" under the Internal Revenue Code. Fearing reprisals, the employees found the need to have the issue of "taxable income" to be briefed and defined.
The following Treatise has been used successfully in destroying IRS criminal investigations. Here is how it was done --
The moment you receive a letter from the IRS, that is the beginning of an IRS investigation. That letter is giving you notice of "Due Process of Law" to be heard and the IRS has now begun an "Administrative Record" under "Administrative Law."
You must respond to that letter for it is your only opportunity to create an "Administrative Record" for yourself. This is very important, for under Administrative Law, a Judge can only review the "Administrative Record" of the executive agency. THE JUDGE CANNOT HEAR ANYTHING NEW. By the time you have reached the Court, it is to late to create a defense.
You may need to make alterations to the Treatise to meet your needs. At the end of the Treatise, you should make a request of the IRS to correct any misunderstandings that you may have. This will show a "good faith" effort on your part. (the IRS has never given an answer which shows "bad faith" on their part.)
The next step is to make an "Affidavit of Mailing" that describes the contents of the mailing (the "Treatise") and the name and address of the friend that is "Certify Mailing" the "Affidavit" and "Treatise" to the Internal Revenue Service. If you don't know how to make an "Affidavit of Mailing," your local Clerk of Court should be able to help you.
Why is it important to have a friend mail your response to the IRS via "Affidavit of Mailing?" The main purpose is so that you may have a witness that can introduce your "Administrative Record" (the "Treatise") into the "Record of the Court" (if you find yourself in the Court as a Defendant). Your friend can testify that he did the mailing under oath and that he can describe the contents of the mailing. There is nothing the Judge can do to stop your "Administrative Record" from going before a jury.
Your "Administrative Record" destroys the issue of "Willful" and no conviction can be had. Furthermore, anything that goes into the "Record of the Court" is "public record" that can be published by the press. Do you see why the IRS will always drop a criminal investigation.
A word of warning: What is described above is for the criminal side of the IRS Code, it has nothing to do with the civil aspects of that Code. The only defense for a civil issue appears to be a Common Law "Plea in Abatement" which is beyond the scope of this Treatise.
|Introduction||Defense Outline Summary|
|Tax Law Origins And Authority||Handling A Jury Trial|
|Handling Your Own Defense||Initial Defense|
|Discussion Of Specific Charges And Current Law||Elements|
|Tax Evasion Versus Willful Failure To File||Willful Failure To File|
|The Elements The Government Must Prove Are:||Defenses|
There are both Civil and Criminal sanctions for violations of the Internal Revenue Code, which is found in Title 26, U.S. Code. We will address the criminal side, but the elements of criminal tax evasion and civil tax fraud are identical, (See Gray v. Cir., [C.A. 61983], 708 F2d 2243, cert. denied 104 S.Ct. 1709) and we must remember, that government invocation of the civil penalty does not bar a criminal proceeding for the imposition of fines or imprisonment (Spies v. U.S., , 63 S .Ct. 364, 317 U.S. 492). Among the more common criminal offenses for which an individual might be charged are:
The most common criminal charges we as individuals might face from those attempting to tax our wages are "Tax Evasion" and "Willful Failure To file."
Income is not specifically defined in the IRS Manuals nor is it defined in the IRS Code. Congress did not define it. Income has always been defined by the Courts as to exclude wages. Therefore persons whose income (NOT WAGES) in 1992 filing singly with less than $5,900 need not file a return or pay a tax.
If an individual has earned dividends, interest from bank accounts, or other moneys which are less than the minimum established, ($5,900 for one filing separately and under 65 in 1992), he/she need not file, nor pay any tax. He/She is exempt, as wages need not be counted.
Make sure the prosecutor and your lawyer are both aware of the implications should the case not be nolprossed, as this information will become public, and the Assistant U.S. Attorney probably won't be in line for any kind of promotion for endangering the proverbial "goose" when you are found not guilty, and the information goes public to a media already promoting the tax reform.
If you are actually tried Criminally, stress to the Judge your reliance on the U.S. Supreme Court in not filing or paying taxes on WAGES, and cite either the Sullivan, Bishop or Cheek case, which states that willfulness is negated if you rely on a previous decision of the U.S. Supreme Court.
If you are tried Civilly, have your lawyer move for "Summary Judgment" using the citations that follow or others of which he may be aware.
Congress has had power to lay and collect income taxes from the time of the adoption of the Constitution, (Brushaber v. Union Pacific R.R. Co., [N.Y. 1916] 36 S.Ct. 236, 240 US 1). This power was subject to the requirement that direct taxes be apportioned among the several states according to population (Pollock v. Farmers Loan and Trust Co., [N.Y. 1895] 125 S.Ct. 673, 157 US 429). The adoption of the Sixteenth Amendment to the Constitution (effective Feb. 25, 1913) giving Congress power to:
"Lay and collect taxes on income, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration"
Evens v. Gore, [Ky 1920] 40 S.Ct. 550, 253 U.S. 245, Kasey v. C.I.R., [C.A. 91972] 457 F2d 369, Cert. denied 93 S.Ct. 197, 409 U.S. 869
It did not limit or expand the power of Congress to tax under the constitutional provisions authorizing Congress to lay and collect taxes but instead merely provided for taxation of income without apportionment (Brushaber v. Union Pacific R.R. Co., [N.Y. 1916] 36 S.Ct. 236, 240 U.S. 1, 60 L.Ed. 493; Simmons v. U.S., [CA Md 1962] 308 F2d 160).
The Brushaber court ruled that the 16th Amendment separated the source (capital) from the income (profit) permitting the collection of an indirect (excise) tax on income, but leaving the source (wages, salary, compensation, fees for service, first time commissions and capital) untouched and free of tax. If these things were to be taxed, it could only be construed as a direct tax, unquestionably in violation of the Constitution, making the entire tax in income void.
There still remains the question as to what is constitutionally allowable as "income" which can be taxed, as Congress is not constitutionally free to define "income" in any way it chooses (Simpson v. U.S., [D.C. Iowa 1976] 423 F.Supp. 720, reversed on other grounds, Prescott v. Commissioner of Internal Revenue, [C.A.] 561 F2d 1287). Further, the labels used do not determine the extent of the taxing power (Simmons v. U.S., [C.A. Md. 1962] 308 F2d 160; Richardson v. U.S., [C.A. Mich. 1961] 294 F2d 593, cert. denied 82 S.Ct. 640, 360 U.S. 802, 7 L.Ed.2d. 549).
To reiterate; the tax authorized under the original U.S. Constitution has not changed except as to separate the source of "income" from the income itself permitting the collection of an indirect (excise) tax on income by leaving the source (wages, salaries, fees for service, and first time commissions) free of tax (Brushaber, supra.) despite how some politicians interpret the 16th Amendment.
The Brushaber court referred to an earlier case,
Pollock v. Farmers Loan and Trust Co.,
158 U.S. 601  which declared the Income Tax Act
of 1894 unconstitutional, as it's effect would have been to leave
the burden of the tax to be born 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. This result, the court
held, could NOT have been contemplated
Since the general term: "income" is not defined in the Internal Revenue Code, (U.S. v. Ballard,  535 F2d 400) and the U.S. Supreme Court has ruled the Congress may not, by any definition it may adopt, conclude the matter, since it cannot by legislation alter the Constitution, from which alone it derives it's power to legislate, and within whose limitations alone, that power can be lawfully exercised (Eisner v. Macomber,  252 U.S. 1889).
Since the Rules contained in the I.R.S. Manual, even if codified in the Code of Federal Regulations, do not have the force and effect of law (U.S. v. Horne, [C.A. Me. 1983] 714 F2d 206) and the power to promulgate regulations does not include the power to broaden or narrow the meaning of statutory provisions beyond what Congress intended (Abbot, Procter & Paine v. U.S.,  344 F2d 333, 170 Cl.Ct. 408) and regulations cannot do what Congress itself is without power to do; they must conform to the Constitution (C.I.R. v. Van Vorst, [C.C.A. 1932] 59 F2d 677).
Since the ultimate Appellate Court is the U.S. Supreme Court, we must look to that Court for a definite answer on the question of conformance and affirmation that Wages are not classified as income which can be taxed.
The Court has recognized that:
"... It becomes essential to distinguish between what is, and what is not `income' ..."
Eisner v. Macomber,  252 U.S. 189
and determined that:
"... `income' as used in the statute should be given a meaning so as not to include everything that comes in, the true function of the words `gains' and `profits' is to limit the meaning of the word `income'"
(So. Pacific v. Lowe, 238 F. 847); (U.S. Dist. Ct. S.D. N.Y. 1917); (247 U.S. 30 )
The Court determined that:
"... the definition of income approved by the Court is:
`The gain derived from capital, from labor, or from both combined, provided it be understood to include profits gained through sale or conversion of capital assets.'"
"Income within the meaning of the 16th Amendment and the Revenue Act means, gain ... and in such connection gain means profit ... proceeding from property severed from capital, however invested or employed and coming in, received or drawn by the taxpayer for his separate use, benefit and disposal"
Staples v. U.S., 21 F.Supp. 737, (U.S. Dist. Ct. EDPA, 1937)
In the case of Lucas v. Earl,  281 U.S. 111, the U.S. Supreme Court stated unambiguously that:
"The claim that salaries, wages and compensation for personal services
are to be taxed as an entirety and therefore must be returned by the individual
who has performed the services which produced the gain is without support
either in the language of the Act or in the decisions of the courts construing
it. Not only this, but it is directly opposed to provisions of the Act
and to regulations of the U.S. Treasury Dept. which either prescribe
or permit that compensation for personal services be not taxed as
an entirety and be not returned by the individual performing the services.
It is to be noted that by the language of the Act it is not salaries, wages
or compensation for personal services that are to be included in gross income.
That which is to be included is gains, profits and income DERIVED
from salaries, wages or compensation for personal service."
The Court ruled similarly in Goodrich v. Edwards,  255 U.S. 527 and in 1969, the Court ruled in Conner v. U.S., 303 F.Supp. 1187, that:
"Whatever may constitute income, therefore must have the essential feature of gain to the recipient. This was true when the 16th Amendment became effective, it was true at the time of Eisner v. Macomber, supra, it was true under sect. 22(a) of the Internal Revenue Code of 1938, and it is likewise true under sect. 61(a) of the I.R.S. Code of 1954. If there is not gain, there is not income .... Congress has taxed INCOME and not compensation."
"... one does not derive income by rendering services and charging for them."
Edwards v. Keith,  231 F. 111
Even at the state level, we find courts following the lead of the U.S. Supreme Court:
"There is a clear distinction between profit and wages or compensation for labor. Compensation for labor cannot be regarded as profit within the meaning of the law."
Oliver v. Halstead,  196 Va. 992, 86 S.E.2d 858
"Reasonable compensation for labor or services rendered in not profit."
Lauderdale Cemetery Assoc. v. Matthews, 345 Pa. 239, 47 A.2d. 277, 280 
Since the above cases are the undisputable law with respect to what is or is not income, we find the word "income" does not mean all monies that come into the possession of an individual, but profit or gain FROM the money one takes in, such as interest, stock dividends, profit from an employee's labors, but not from an individual's wages, which are compensation for his labor. This means that the average person in America, who has no large investments or riches upon which he receives interest, dividends, etc., in excess of the amounts listed above (1992) but merely works for wages, has income insufficient in amount to be required to file a tax return.
While you might be better off with a bench trial, which may never be tried due to the nature of the suit, there may be a time when you are tried by jury. Both "Tax Evasion" and "Failure to File" require "willfulness." Again we look to the U.S. Supreme Court and find that:
"The requirement of an offense committed willfully is not met, therefore if a taxpayer has relied in good faith upon a prior decision of the court."
U.S. v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, U.S. v. Sullivan, 274 U.S. 259
Since any reasonably knowledgeable and intelligent person filing a return, invoking this argument MUST rely on U.S. Supreme Court's interpretation of "income," that person, when brought into court, may rely on the decisions of the U.S. Supreme Court to negate the element of "willfulness". Make sure those jury instructions are made to the jury, and bring them up in testimony if you like. As if this was not enough, any question in a juror's mind can be swayed in your favor with this citation:
"Statutes levying taxes should be construed in case of doubt, against the government and in favor of the citizen."
Miller v. Gearing, 258 F. 225
Make sure to read 47B C.J.S. 1283 among other sources regarding parameters of jury instructions.
Determine what returns you are being charged with evading or not filing, as:
"income tax liability for any one year constitutes a single cause of action."
Lewis v. Reynolds, 284 U.S. 281
Determine whether they are beyond a statute of limitations to sue since Congress has consented to a defense to which in effect is a statute of limitations (Lucia v. U.S., [C.A. Tex. 1973] 474 F2d 565) and under the Code (26 USCA 6502) a suit is barred when not brought within the statutory limitation period, and move to dismiss any counts which are past the statute of limitations.
Refuse to produce anything the government does not already have on you from payroll. You may refuse any I.R.S. Summons not judicially enforced, as long as the attack is in "good faith" and the Statute usually referred to is 26 USC 7210 which prescribes criminal punishment for anyone refusing to obey an Internal Revenue Summons for production records, was addressed by the U.S. Supreme Court in Reisman v. Caplink, 375 U.S. 440. The Court stated:
"Non compliance is not subject to prosecution thereunder, when
the summons is attacked in good faith. ... And by the same token,
it seems that one who makes a good faith challenge to specific questions
on a 1040 tax return is not subject to successful prosecution."
The Courts have also stated that:
"Broad discretions given tax officers with regard to investigations, is for legitimate tax investigations and is not a license for official harassment of the citizenry"
U.S. v. Cutter, 374 F.Supp. 1065
If our rights are not given to us during a verbal conversation as enumerated in the Mathis decision, (No. 726, May 6, 1938, 3910 Winterhaven. n. 1) then you move to suppress the evidence gathered through that conversation.
"Counsel will not be permitted to argue before a jury questions of law not involved in the instructions asked and submitted to the court."
Under provisions of the Internal Revenue Code (26 USCA 7201), any person who willfully attempts to evade or defeat a tax is guilty of a felony (See 47B C.J.S. 1256 note 43).
The essential elements of the offense are:
Generally, conduct which is likely to mislead or conceal is sufficient to raise an inference of an affirmative willful attempt, such as is required to constitute the offense of attempt to evade or defeat the tax (See 47B C.J.S. 1256 note 67), and if the tax evasion motive plays any part in the conduct of the taxpayer, the offense may be made our even though such conduct may also serve other purposes, such as the concealment of other crime (47B C.J.S. 1256, note 68). Any affirmative act which the taxpayer might do where the effect and reasonable purpose would be to evade or defeat the tax will constitute the offense (47B C.J.S. 1256, note 69).
The filing of a false return is an independent crime and also one aspect of the more comprehensive offense considered here (47B C.J.S. 1256, note 70) and the crime is complete when a fraudulent is knowingly and willfully filed with intent to evade and defeat part or all of the tax (47B C.J.S. 1256, note 71). Where the necessary intention is present, the offense may be committed not only by the filing of a false original return (47B C.J.S. 1256, note 72), but also by the filing of false amended returns, proofs, or affidavit, even though such instruments are not required to be filed (47B C.J.S. 1256, note 73). The crime may be committed by taking fraudulent deduction (47B C.J.S. 1256, note 75). When do wagering excise tax return has been filed, an individual cannot be criminally prosecuted for willfully attempting to evade or defeat the tax, notwithstanding fact that wagering taxes may be due and owing (47B C.J.S. 1256, note 75.5).
The word: "willfully" when used in the Revenue Code which renders certain acts criminal, has the same meaning in the felony provisions as it does in the misdemeanor provisions (47B C.J.S. 1254 note 23). This word as used in the Code's criminal provisions connotates a voluntary and intentional violation of a known legal duty ([47B C.J.S. 1254 note 24] note 25) and is not equated with mere carelessness or recklessness (U.S. v. Swanson, [C.A. Iowa 1975] 509 F2d 1205). Even gross negligence is not sufficient to establish willfulness (47B C.J.S. 1254 note 27). The willful requirement is not met if the defendant has relied on good faith on a prior decision of the U.S. Supreme Court (47B C.J.S. 1254 note 28).
I.R.S. statutory offenses, where the law contains the words: "with intent to evade", the intent is material to the offense (U.S. v. Buzzo, [Mich 1873] 18 Wall. 125, 21 L.Ed. 418).
The felony of attempting to evade or defeat a tax may include one or several of other offenses against the Code (47B C.J.S. 1256, note 63), the misdemeanor of failure to pay the tax. The difference is that an attempt to evade or defeat a tax involves some commission of some affirmative act in ADDITION to willful omission (Sansone v. U.S., [Mo. 1965] 85 S.Ct. 1004, 380 U.S. 343) (Spies v. U.S., , 63 S.Ct. 364, 317 U.S. 492).
Any person required to file an income tax return who willfully fails to do so is guilty of a misdemeanor (26 USC 7203; Spies v. U.S., , 63 S.Ct. 364, 317 U.S. 492). (See 47B C.J.S. 1258, note 86).
The word "willfully" in the Statute means "a voluntary, intentional violation of the known legal duty to file a return" (47B C.J.S. 1258, note 5), and the taxpayer's motives in failing to file such are immaterial and irrelevant (47B C.J.S. 1258, note 96). Some cases have construed the Statute as not requiring an intent to defraud the government or other similar bad purpose or evil motive (47B C.J.S. 1258, note 98).
"Willfulness" means "a voluntary intentional violation of a known legal duty" (47B C.J.S. 1256, note 45) which may be shown through consistent patterns of not reporting large amounts of income.
An act may be done knowingly and intentionally whether as the immediate act of the person charged, or his authorized act through an employee (Prather v. U.S.,  9 App. D.C. 82).
As you can see, by negating wages as income, only profit or gain need
to be considered, making most persons ineligible for filing. There is no
willful act, no omission, no intent, and no income ...
hence no case for the prosecution, and even if confronted by an angry jury,
by relying on the U.S. Supreme Court decisions, YOU MUST
BE ACQUITTED AS A MATTER OF LAW. If you are not acquitted, your
lawyer will move for a "Judgment Not Withstanding The Verdict",
and/or an Appeal, from which you will be eventually found "not guilty."