Time: Thu Mar 27 06:00:14 1997
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Date: Thu, 27 Mar 1997 05:59:10 -0800
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: SNET: Is The IRS Code Constitutional? (fwd)

<snip>
>SearchNet's   SNETNEWS   Mailing List
>
>Lets start with the Constitution of the United States:
>
>ARTICLE I, Section 2, Clause 3 - 
>
>Representatives [and direct taxes] {Altered by 16th Amendment} 
>shall be apportioned among the several States which may be included 
>within this Union, according to their respective numbers, [which 
>shall be determined by adding the whole number of free persons, 
>including those bound to service for a term of years, and excluding 
>Indians not taxed, three-fifths of all other persons.] {Altered by 
>14th Amendment}  The actual enumeration shall be made within three 
>years after the first meeting of the Congress of the United States, 
>and within every subsequent term of ten years, in such manner as 
>they shall by law direct. The number of Representatives shall not 
>exceed one for every thirty thousand, but each State shall have at 
>least one Representative; and until such enumeration shall be 
>made, the State of New Hampshire shall be entitled to choose three, 
>Massachusetts eight, Rhode Island and Providence Plantations one, 
>Connecticut five, New York six, New Jersey four, Pennsylvania 
>eight, Delaware one, Maryland six, Virginia ten, North Carolina 
>five, South Carolina five, and Georgia three. 
>
>ARTICLE 1, Section 9, Clause 4 -
>
>[No capitation, or other direct tax shall be laid unless in 
>proportion to the census or enumeration herein before directed to 
>be taken.] {Altered by 14th Amendment} 
>
>AMENDMENT XVI - Passed by Congress July 2, 1909. Ratified February 
>3, 1913. 
>
>The Congress shall have power to lay and collect taxes on incomes, 
>from whatever sources derived, without apportionment among the 
>several States, and without regard to any census or enumeration. 
>---
>
>The U.S. Supreme Court has ruled that the taxing limitation in 
>Article 1, Section 2, Clause 3; and Article 1, Section 9, Clause 4 
>of the U.S. Constitution prohibiting the federal government from 
>imposing any tax directly on the people, are still in effect and 
>that the 16th Amendment did not nullify those limitations nor 
>authorize any direct tax on the people.
>
>UNITED STATES CODE 
>          TITLE 26 - INTERNAL REVENUE CODE 
>               Subtitle A - Income Taxes 
>                    CHAPTER 1 - NORMAL TAXES AND SURTAXES 
>                         PART I - TAX ON INDIVIDUALS
>---
>Unless the reader understands that the "title" of a section is not 
>law, and that the wording of the body of the statue --ONLY-- is the 
>law, they would most likely consider that the words in the title of 
>Part 1 imposed an income tax on individuals.
>---
>     ' 1. Tax imposed.
>
>     (a) Married individuals filing joint returns and surviving 
>         spouses 
>     There is hereby imposed on the taxable income of - 
>           (1) every married individual (as defined in section 
>               7703) who makes a single return jointly with 
>               his spouse under section 6013, and 
>           (2) every surviving spouse (as defined in section 2(a)), 
>               a tax determined in accordance with the following 
>               table: 
>
>     (b) Heads of households 
>     There is hereby imposed on the taxable income of every head of 
>     a household (as defined in section 2(b)) a tax determined in 
>     accordance with the following table: 
>
>     (c) Unmarried individuals (other than surviving spouses and 
>         heads of households) 
>     There is hereby imposed on the taxable income of every 
>     individual (other than a surviving spouse as defined in 
>     section 2(a) or the head of a household as defined in 
>     section 2(b)) who is not a married individual (as defined 
>     in section 7703) a tax determined in accordance with the 
>     following table: 
>
>     (d) Married individuals filing separate returns 
>     There is hereby imposed on the taxable income of every married 
>     individual (as defined in section 7703) who does not make a 
>     single return jointly with his spouse under section 6013, a 
>     tax determined in accordance with the following table: 
>
>     (e) Estates and trusts 
>     There is hereby imposed on the taxable income of - 
>           (1) every estate, and 
>           (2) every trust, taxable under this subsection a tax 
>               determined in accordance with the following table: 
>
><etc.>
>---
>
>In all of the various parts of Section 1 (which imposes the tax), 
>it is stated that the tax is imposed on "taxable income," not on 
>individuals.  Furthermore, there is no provision under Subtitle A 
>or anywhere else in the IRC that makes individuals liable for 
>(subject to) the income tax or requires them to pay it.  This 
>omission is not generally recognized unless one realized that in 
>order for individuals to be required to pay an income tax, there 
>must be a provision of the law that specifically states that the 
>tax is imposed on them.
>
>Without such a provision, individuals are not subject to the tax, 
>and are not required to pay it.  It is very clear that the tax is 
>imposed on "taxable income," NOT on people, and therefore does not 
>conflict with the constitutional limitations prohibiting direct 
>taxation of the people.
>
>UNITED STATES CODE 
>          TITLE 26 - INTERNAL REVENUE CODE 
>               Subtitle F - Procedure and Administration 
>                    CHAPTER 61 - INFORMATION AND RETURNS 
>                         Subchapter A - Returns and Records 
>                              PART II - TAX RETURNS OR STATEMENTS 
>                                   Subpart B - Income Tax Returns 
>
>' 6012. Persons required to make returns of income
>      (a) General rule 
>     Returns with respect to income taxes under subtitle A shall 
>     be made by the following: 
>
>           (1) (A) Every individual having for the taxable year 
>                   gross income which equals or exceeds the 
>                   exemption amount ....
>---
>
>Since this section applies only to those who might be required to 
>make returns "with respect to income taxes under Subtitle A," it 
>therefore applies to only those individuals on whom the tax might 
>be imposed under Subtitle A.  Since Subtitle A, as previously 
>shown, imposes no tax on any individuals, there are no individuals 
>against who Section 6012 can be applied.  The logic of this wording 
>in Section 6012 is apparent, since individuals are not subject to 
>the income tax under Subtitle A, they are not required to make 
>returns under Section 6012.
>
>Next, the word "Shall" is used, not the word "required," even 
>though the word "required" is used frequently throughout the IRC.  
>Shall generally has a mandatory meaning, but courts have ruled that 
>it must mean the same as the word "may" when necessary to avoid a 
>"constitutional conflict."  As an example, if an individual were 
>required to make a return, thereby forcing him to disclose 
>information from his private papers, it would violate his right to 
>privacy secured by the 4th Amendment of the Bill of Rights of the 
>United States Constitution, thus creating a "constitutional 
>conflict."
>
>Also, compelling an individual to disclose information that could 
>be used against him criminally would violate his 5th Amendment 
>right NOT to be required to be a witness against himself, thus 
>operating to create another "constitutional conflict."  Therefore, 
>since Section 6012 (a) states that individuals "shall" make 
>returns, it is clear that the making of such returns by individuals 
>is not required by law, but is a voluntary action.
>
>Reading on in Section 6012 we see that the provisions just 
>discussed apply to only those individuals "having for the taxable 
>year a gross income which equals or exceeds the exemption amount 
>..."  Since an individual must have a taxable year in order to be 
>subject to Section 6012 (a), it is necessary to understand the 
>meaning of "taxable year."
>
>UNITED STATES CODE 
>          TITLE 26 - INTERNAL REVENUE CODE 
>               Subtitle A - Income Taxes 
>                    CHAPTER 1 - NORMAL TAXES AND SURTAXES 
>                         Subchapter E - Accounting Periods and 
>                                        Methods of Accounting 
>                              PART I - ACCOUNTING PERIODS 
>
>' 441. Period for computation of taxable income
>      (a) Computation of taxable income 
>     Taxable income shall be computed on the basis of the 
>     taxpayer's taxable year. 
>      (b) Taxable year 
>     For purposes of this subtitle, the term ''taxable year'' 
>     means - 
>           (1) the taxpayer's annual accounting period, if it is a 
>               calendar year or a fiscal year; 
>           (2) the calendar year, if subsection (g) applies; 
>           (3) the period for which the return is made, if a return 
>               is made for a period of less than 12 months; or 
>           (4) in the case of a FSC or DISC filing a return for a 
>               period of at least 12 months, the period determined 
>               under subsection (h). 
>
><etc.>
>---
>
>Note that Section 441 defines this period of time for which a 
>"taxpayer's" taxable income is computed.  Nowhere in Section 441, 
>or anywhere else in the IRC, is there any wording indicating that 
>an individual has a "taxable year."
>
>Going further, we determine the definition of the term, 
>"taxpayer."  "Taxpayer" is also a legal term defined in the IRC.
>
>UNITED STATES CODE 
>          TITLE 26 - INTERNAL REVENUE CODE 
>               Subtitle F - Procedure and Administration 
>                    CHAPTER 79 - DEFINITIONS 
>
>' 7701. Definitions
>      (a) (14) Taxpayer 
>     The term ''taxpayer'' means any person subject to any internal 
>     revenue tax. 
>---
>
>According to that Section, the legal term "taxpayer" does NOT mean 
>"any person who pays taxes," but is defined as, "... any person 
>subject to any internal revenue tax."  The IRC also defines a 
>"person."
>
>' 7701. Definitions
>      (a)  (1) Person 
>     The term ''person'' shall be construed to mean and include an 
>     individual, a trust, estate, partnership, association, company 
>     or corporation. 
>---
>
>The legal term "person" is defined as meaning not only an 
>individual, but also a corporation.  Because the U.S. Constitution 
>forbids direct taxation of the people, Subtitle A does not make 
>individuals subject to the federal income (excise) tax; therefore, 
>according to the law, individuals are not "taxpayers" in respect to 
>the income tax.  Since according to Section 441, only "taxpayers" 
>have a "taxable year" and individuals do not, then it is clear that 
>Section 6012 (a) applies to "taxpayers" only and that it does not 
>require returns to be made by individuals because they are not 
>subject to the federal income (excise) tax under Subtitle A.  Once 
>more, we see that the wording in Section 6012 is constitutional 
>because it does not apply to individuals.
>
>When reading Section 6012 (a) without careful analysis, the 
>strange words "having income" are generally interpreted as meaning 
>"receiving income."  However, if one understands the definition of 
>"income" as stated by the U.S. Supreme Court, the words are not 
>strange.  The Court in the case of Merchants Loan & Trust Co. v. 
>Smietanka [255 US 509], ruled that the term "income" must be given 
>the same definition in all income tax laws enacted by Congress 
>under the 16th Amendment that it had under the Corporation Tax act 
>of 1909, which imposed a tax on profits of corporations.
>
>In the decision of the case of Eisner v. Macomber [252 US 207], the 
>Supreme Court stated that "income" under the 16th Amendment means a 
>"gain" or "profit."  The Court stated in the Eisner decision that 
>Congress has no power to define "income," established by the 
>Supreme Court.  Therefore, Congress has no power to enact any 
>statute changing or enlarging the Court's definition of "income" 
>(profits or gains of corporations) and it has no power to include 
>other items as being "income."
>
>Despite these facts, IRS spokesmen consistently misinterpret 
>Section 61(a) of the IRC.
>
>UNITED STATES CODE 
>         TITLE 26 - INTERNAL REVENUE CODE 
>              Subtitle A - Income Taxes 
>                  CHAPTER 1 - NORMAL TAXES AND SURTAXES 
>                       Subchapter B - Computation of Taxable Income 
>                           PART I - DEFINITION OF GROSS INCOME, 
>                                    ADJUSTED GROSS INCOME, TAXABLE 
>                                    INCOME, ETC. 
>
>' 61. Gross income defined
>     (a) General definition 
>     Except as otherwise provided in this subtitle, gross income 
>     means all income from whatever source derived, including 
>     (but not limited to) the following items: 
>         (1) Compensation for services, including fees, 
>             commissions, fringe benefits, and similar items; 
>         (2) Gross income derived from business; 
>         (3) Gains derived from dealings in property; 
>         (4) Interest; 
>         (5) Rents; 
>         (6) Royalties; 
>         (7) Dividends; 
>         (8) Alimony and separate maintenance payments; 
>         (9) Annuities; 
>         (10) Income from life insurance and endowment contracts; 
>         (11) Pensions; 
>         (12) Income from discharge of indebtedness; 
>         (13) Distributive share of partnership gross income; 
>         (14) Income in respect of a decedent; and 
>         (15) Income from an interest in an estate or trust.
>---
>
>The claim that the 15 items listed in that Section are defined as 
>items of "income," when they are in fact, items of source 
>(corporate gross receipts).  Gross receipts (sources) are NOT 
>profits or gains (income); but if gross receipts are entered as 
>"income," on an income tax return, they are then considered to be 
>"income" to the "taxpayer" who files the return, signed "under 
>penalties of perjury."
>
>The exchange of an individual's labor for wages, salaries, 
>commissions, fees, etc., is an equal exchange of his property 
>(labor) for other property (money in the form of wages, salaries, 
>commissions, fees, etc.) of equal value and there is no profit or 
>gain in the transaction.  Such an individual is not one "having 
>income" (possessing a corporate profit or gain), so we see that 
>Section 6012 (a) does not apply to individuals just because they 
>work for a living -- a God given Right secured by the Constitution 
>of the united States -- or because they are engaged in other 
>activities of common right.  Therefore, there is no conflict with 
>the Constitution on these points that should make Section 6012 (a) 
>unconstitutional.  The IRC imposes requirements on "taxpayers" 
>only -- not on individuals.
>
>In conclusion, these are the observation on this subject:
>
>1.  When an individual voluntarily files his first income tax 
>return (voluntary compliance) showing a tax is due from him (self-
>assessment), signed "under penalties of perjury," (Federal law 
>under 28 USC 1746 makes unsworn statements, certified under 
>penalty of perjury, equal in legal force to a sworn statement or 
>notarized affidavit) he unknowingly established prima facie 
>evidence (evidence with which, if unexplained or uncontradicted, 
>is sufficient to sustain a judgement in favor of the issue which it 
>supports, but which may be contradicted by other evidence) that he 
>is subject to the income tax and that he is in the legal status of 
>a "taxpayer" (any person subject to any internal revenue tax).
>
>2.  In relation to federal income (excise) tax, a "taxpayer" is 
>considered to be in the same legal status as a corporation, which 
>is a government created "person" that is subject to the direction 
>and control of the government.  A "taxpayer," like a corporation , 
>has "privileges" only and has no constitutionally secured 
>individual rights with which a mandatory interpretation of the 
>word "shall" could create a "constitutional conflict."
>
>Thus, a "taxpayer" can be required to file an income tax return 
>and/or do whatever else IRS regulations require him to do relative 
>to federal excise taxes.
>
>3.  When criminal charges for "wilful failure to file" are pressed, 
>the defendant is tried as a "taxpayer," not as an individual 
>possessing all of his constitutionally secured rights.  Because of 
>the defendant's previously filed returns being put into evidence 
>without challenge, a judge can consider the defendant to be a 
>"taxpayer" and therefore instruct the jury that the defendant is 
>required to file income tax returns.
>
>If, however, an individual's income tax returns were filed because 
>he was deceived into believing that, as an individual, he was 
>required -- by law -- to file an income tax return and pay income 
>tax, he could have grounds for CONSTRUCTIVE FRAUD needed for 
>retroactive revocation and repudiation of all previously executed 
>IRS documents to prevent their use as prima facie evidence in bout 
>civil and criminal proceedings.  Prima facie evidence can be 
>challenged and overcome by positive action explaining and 
>contradicting such evidence.
>
>Edited from `Freedom League Newsletter,' March 1986
>--
>Tony Sgarlatti
>
>tonys@the-truth.org
>Lots of IRS protester links -
>http://www.future.net/~thetruth/
>The Million Dollar Internet Experiment -
>http://www.future.net/~thetruth/million.html
>
>"What luck for rulers that men do not think."    
>                            -- Adolf Hitler
>
>-> Send "subscribe   snetnews " to majordomo@world.std.com
>->  Posted by: tfs@adc.com (Tony F Sgarlatti)
>
>

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Paul Andrew, Mitchell, B.A., M.S.    : Counselor at Law, federal witness
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