Citizen Defies IRS For a Decade

       Years ago I realized that there is no law that requires a citizen to file an income tax return. Therefore, I have very publicly refused to volunteer for over a decade. If judged before a jury of peers my defense will be the following 13 elements, which constitute my entire body of evidence. I will say no more. I need say no more.

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 necessary to substantiate my intentions for not filing, which are to:

       Honor my oath to defend our Constitution and expose tyranny. 

       Replace our hopelessly flawed and totally corrupt system of taxation (several versions of a National Retail Sales Tax already exist.)

       During the decade and in which I did not/do not file, I wrote over a dozen columns in the Aspen (CO) Daily News, self-published The Not Willful Party, marched in parades and sat, with sign, on the Pitkin County Courthouse steps. From start to present I have placed my freedom at risk, as I document my stance. In retaliation, the IRS assessed me for over eleven 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, as if by magic, gained control over everything I own and stole liquid assets. This treatise 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 IRC Section 7203 “Willful Failure to File.” To convict, our government must prove, beyond a reasonable doubt, that I am required by law to file a return and that my failure to file was “willful.”

 3. It is my stance that there is no law that requires a citizen to file an income tax return and that my refusal to file is "not willful." Surprise! The IRS agrees and has, in fact, insisted for decades that filing a return and paying income tax is based on what they themselves acknowledge to be an act of “voluntary compliance.”

       The 1971 IRS form 1040 declared “Each year American taxpayers voluntarily file their tax returns and make a special effort to pay the taxes they owe.” The 1980 1040 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] testifies that “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. [357 U.S. 63] that “Our system of taxation is based upon voluntary assessment and payment, not upon distraint.”

4. 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.

5. Why voluntary? Because if the IRS required a citizen to file an income tax return they would be in direct conflict with multiple Supreme Court decisions. For instance in Brushaber [240 U.S.1], the landmark case regarding the 16th Amendment, the Supreme Court 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 that “Taxation on income was in its nature an excise (indirect) tax entitled to be enforced as such.” They then muddied the water with reams of legal verbiage, confusing the issue to this very day. The Constitution demands that an indirect (excise) tax must be uniform and since income tax is obviously not uniform, it is not entitled to be enforced.

       In Stanton v. Baltic Mining Co. [240 U.S. 103] we find, “The 16th Amendment conferred no new power of taxation but simply prohibited the… 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, page 536 which states, “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."

       Federal Appellate Court rulings as to whether income tax is a direct or indirect tax are profoundly opposed. In the Fourth and Sixth Circuits income tax has been held to be an excise tax, while in the Fifth, Seventh, Eighth and Tenth Circuits arguments that income tax is an excise tax are deemed to be "frivolous."

       In testament to the power of propaganda and a deceitful tax code most Americans believe that the 16th Amendment created a direct tax without apportionment. It did not. Meanwhile, “radical and destructive changes to our constitutional system” are evident as our government acts as if it did.

6. The Fifth Amendment states “No person shall be compelled in any criminal case to be a witness against himself.” Since filing a return is obviously being a witness against oneself, the issue rose to our Highest Court, whose landmark case concerning income tax and the Fifth Amendment is... Sullivan v. U.S. [274 U.S. 259].

       In 1927 Manly Sullivan, a bootlegger, "Took the Fifth" and refused to file on grounds that if he did, he might tend to incriminate himself. The court agreed... "Requiring Sullivan to file would be in conflict with the Fifth Amendment." "The protection against self-incrimination afforded by the Fifth Amendment furnished him with a complete defense." At that moment Manly Sullivan rescued America from income tax hell. However, one branch of the federal government immediately appealed to another branch and Oliver Wendell Holmes, himself, threw Manly into jail. The Supreme Court abetted income tax by ruling that if Sullivan sought to "Take the Fifth" he first had to file, then he could "Take the Fifth." This ruling, via "color of law," soon morphed into "everyone must file."

       Here is one of many laws that, if enforced, would liberate us from income tax. "Taking the Fifth," not incriminating oneself, is absolutely, fundamentally distinct to our constitutional right "not to be a witness against oneself" (whether or not testimony is or is not incriminating). "Taking the Fifth" is legally defined as a "privilege" used if subpoenaed to testify in another person's trial. Sullivan was required to file because he erred and claimed a "privilege" instead of insisting on every citizen's "right." We supposedly have to file because Sullivan had to.

       For over a century our government has exploited the intentionally created confusion between right v. privilege to subvert the Constitution and force us to file.

7. In Boyd v. U.S. [116 U.S. 616] the Supreme Court ruled “A taxpayer may refuse to exhibit his/her books and records for examination on the grounds 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.”

       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 proclaims 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 other valid reasons, the IRS does not require a citizen to file an income tax return.

8. The title of Section 6012 of the IRC proclaims “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 U.S. 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, but does not, use the obligatory word “required” in the body of Code Section 6012.

       In 2008, 70,000 citizens, organized by the “We the People Foundation,” signed and delivered a petition demanding, under the 1st Amendment, that our government simply “Show Us the Law” that required a citizen to file. Answered by silence, we appealed to the Supreme Court which refused to hear our case.

9. The IRC defines a “withholding agent” at IRC 7701(a) as only required to deduct and withhold income tax from nonresident aliens and foreign corporations. Therefore, no law requires withholding income tax from citizens living in America.

       Meanwhile, taxpayers believe there is a requirement to pay estimated income tax while their exemption is buried deep in the IRC. Title 26, Subtitle f, Chapter 68, Sub chapter 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.”

       As there is no law requiring income tax, withholding tax or estimated income tax, three strikes and all must be… voluntary.

10. The Supreme Court ruled in Cheek v. U.S. [498 U.S. 192] that in relationship 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.”

11. While I believe this treatise proves, beyond a reasonable doubt, that I am not required to file an income tax return, 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, as witnesses will testify, as I swear to, I have a good faith belief that I am not required to file, thus my failure to file is “not willful.” As any citizen's would be... if he or she sincerely believed this treatise and refused to volunteer. The Not Willful Party.

12. Irwin Schiff is the godfather of the income tax protest movement. Irwin changed my world view, my paradigm (as yours must change to fully comprehend this vast treachery) when I read his book The Federal Mafia. One of the few books ever to be banned for sale in America! He’s 86 years old and has been locked in a small cell for a long time. The IRS held his Motion to Dismiss for over a year, then released it mere hours before his trial, ruling that Irwin’s arguments were “frivolous” even as they relied on our Constitution, Supreme Court Decisions and the laws of our land. Irwin was deprived of due process.

13. Irwin Schiff died on October 16, 2015. His body riddled with cancer, yet he was handcuffed to a bed while an armed guard stood watch as Irwin passed to a better place. With only weeks left, he had been denied the decency to die with family. An example, a warning to all who oppose. A true patriot, Erwin Schiff sacrificed his life to expose the tyranny of income tax.

Will Kesler,

Snowmass Village, CO

2017