Time: Sun Sep 07 06:16:49 1997
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Date: Sun, 07 Sep 1997 06:10:22 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Interesting citations on Tax / Income Tax (fwd)
See #51.
LET'S PULL THIS CASE NOW!!!!
Would someone donate the funds
necessary to purchase a certified
copy of the entire case file?
/s/ Paul Mitchell
http://supremelaw.com
<snip>
>
>Be sure to look up and READ the cases before using the remarks shown
>for any serious purpose. HT
>
<snip>
>
>
>Greetings to all,
>
>Here are some citations on the subject of taxes which I have
>gleaned over the years. Food for thought.
>
>
> TAX / INCOME TAX
>
>1. The legal right of a taxpayer to decrease
> the amount of what otherwise would be his
> taxes, or altogether avoid them, by means
> within which the law permits, cannot be
> doubted.
> See:
> Gregory v. Helvering, 293 US 465.
>
>2. The requirement of an offense committed
> wilfully is not met, therefore if a
> taxpayer has relied in good faith upon a
> prior decision of the court.
> See:
> U.S. v. Bishop, 412, U.S. 346 (1973)
> at 2017, 93 S. Ct 2008.
>
>3. One does not derive income by rendering
> services and charging for them.
> See:
> Edwards v. Keith, 231 Fed Rep 110.
>
>4. The citizen is immune, has a right to be
> free from such taxation and regulating,
> duties, obligations, sanctions as a
> matter of law.
> See:
> U.S. v. Texas, 384 U.S. 155;
> Wilson v. U.S., 221 U.S. 361;
> Pollack v. Flint, 158 U.S. 601, 157
> U.S. 428;
> United States Constitution, Article
> 1, Section 2, Clause 3, and Article
> 1, Section 9, clause 4.
>
>5. Tips are gifts and therefore are not
> taxable.
> See:
> Olk v. United States, February 18,
> 1975, Las Vegas, Nevada. (Wendell
> Olk) Judge Thomas W. Vlary.
>
>6. Who would believe the ironic truth that
> the cooperative taxpayer fares much worse
> than the individual who relies upon his
> constitutional rights.
> See:
> United States v. Dickerson, 413 F 2D
> 1111.
>
>7. Only the rare taxpayer would be likely to
> know that he could refuse to produce his
> records to Internal Revenue Service
> agents.
> See:
> United States v. Dickerson, 413 F 2D
> 1111.
>
>8. A person cannot be forced to submit
> records for inspection.
> See:
> United States of America, and Fred
> J. Rosauer, special agent IRS v.
> Johanna Vam Poperin, U.S. District
> Court, District of Minn, 4th
> Division, 4-71 Civil 635.
>
>9. The Supreme Court argued that the IRS
> could not use material gained by IRS
> agents under a routine questioning for
> what purported to be a routine audit."
> The difference between a routine and a
> criminal investigation was 'too minor to
> justify departure from the Miranda
> Doctrine." Justice White drew a mandatory
> conclusion. "Indeed," he added, "the
> Black opinion suggested that the Miranda
> warnings are required through the
> immensely broad area of investigations
> which frequently lead to criminal
> inquiries." (Fourth, Tax).
> See:
> The Mathis decision, (No. 726, May
> 6, 1968, 3 910 S.) (Winterhaven,
> Florida).
>
>10. "Mr. President, I invite the senate's
> attention to certain correspondence I
> have had with Internal Revenue Service
> Commissioner Sheldon S. Cohen with
> respect to the legal obligations of
> citizens to keep records, produce
> records, and answer questions relating to
> tax liability. Criminal cases have been
> veiled in civil clothing to obtain
> information illegally. Taxpayers have
> been bullied and threatened especially
> small taxpayers and those without legal
> assistance. What should taxpayers do when
> faced with such a situation? Do all
> lawyers even know what the obligations of
> taxpayers are as to record keeping,
> record producing, and question answering?
> The answer seems to be "no". "For this
> reason, I wrote to Commissioner Cohen on
> April 17, 1967, and received his reply on
> July 7, 1967. As his reply is most
> instructive and will help Congress, as
> well as taxpayers, their lawyers and
> accountants, I ask unanimous consent that
> the correspondence be printed in the
> record." The following are excerpts from
> the Commissioner Cohen's reply, which was
> prepared by Chief Counsel Lester R.
> Vretz, and denominated U.S. government
> memorandum CC:C1---3487:
> "Good faith challenges in the form
> of constitutional and other federally
> recognized privileges are of course
> recognized by the service. For example,
> the privilege against self-incrimination
> under the Fifth Amendment may be a proper
> basis by an individual taxpayer for
> refusing to answer specific questions or
> to furnish his records." Before
> recommending prosecution under Section
> 7201 or 7203, the service must usually
> develop enough information to show a
> substantial tax liability that was not
> met in addition to criminal intent. . ..
> The constitutional rights and other legal
> rights of all persons will be fully
> respected and observed. Senator Long of
> Missouri.
>
>11. "In recent years, this court has
> zealously guarded the Fifth Amendment
> rights of citizens confronted with
> possible penalties or prosecution for
> violation of income tax laws . . .. In
> the United States v. Dickerson, 413 F.D.
> 111 (1969), we held that a Miranda
> warning must be given to a taxpayer under
> criminal investigation by the Internal
> Revenue Service for possible criminal
> investigation, see also
> See:
> United States v. Lackey, 413 F, 2D
> 665 (1969);
> United States v. Habig, 413 F.2D.
> 1108 (1969) (We would vitiate the
> effects of these decisions if we
> ruled today that the government
> could avoid all Fifth Amendment
> considerations by merely obtaining a
> search warrant).
>
>12. "Statutes levying taxes should be
> construed, in case of doubt, against the
> government and in favor of the citizen."
> See:
> Miller v. Gearing, 258 F. 225.
>
>13. Income Tax liability for any one year
> constitutes a single cause of action.
> See:
> Lewis v. Reynolds, 284 U.S. 281.
>
>14. That the power to tax involves the power
> to destroy.
> See:
> McCullock v. Maryland, 4 Wheaton
> 316;
> Crandall v. Nevada, 6 Wall 35, 46.
>
>15. Until a recent act of Congress, 304 of
> which forbids discharge of employees on
> the ground that their wages have been
> garnished, garnishment often meant the
> loss of a job.
> See:
> 82 Statutes 146, Act of May 29,
> 1968.
>
>16. If the form of the return provided,
> called for answers that the Defendant was
> privileged from making, he could have
> raised the objection in the return, but
> could not on that account, refuse to make
> any return at all.
> See:
> U.S. v. Sullivan, 274 U.S. 259, 263.
>
>17. Person cannot be forced to submit records
> for inspection.
> See:
> United States of America, and Fred
> J. Rosauer, special agent I.R.S. v.
> Johanna Van Poperin, U.S. District
> Court, District of Minn., 4th
> Division, 4-71 Civil 635.
>
>18. The taxpayer is certainly free to plan
> transactions, and he is not obligated to
> choose an arrangement that produces
> unfavorable tax results.
> See:
> United States Tax Court, 1976.
>
>19. Respondent is in fear of federal
> prosecution for violation of federal tax
> laws; and there is no federal statute
> which would grant immunity to respondent
> for the specific offenses set forth in 26
> U.S.C., Sections 7201 through 7210. In
> the absence of a federal statute granting
> immunity for the specific offense to
> which the question relates, states cannot
> compel disclosure.
> See:
> Mulloney v. United States, 79 F 2D
> 566, and
> United States v. Johnson, et al., 76
> F. Supp., 538.
>
>20. We have held that a taxpayer must assert
> his privilege against self incrimination
> to answering any of the questions on the
> returns, the objection must be stated in
> response to those specific questions.
> See:
> Garner v. United States, 501 Fed. 2d
> 228; affirmed as within the law and
> affirmed March 23, 1976, 74 S. Ct.
> 100.
>
>21. The taxpayer may refuse to answer
> specific incrimination questions on the
> return, but he cannot refuse to file the
> return. (34 Am. Jur. 2D Federal Taxation,
> Paragraph 9388, and
> See:
> U.S. v. Sullivan, 274 U.S. 259.)
>
>22. You must file a return, but if you
> object, you must state your objection to
> each and every question.
> See:
> Heligman v. United States, 407 Fed.
> 2d 448.
>
>23. 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.
> See:
> U.S. v. Cutter, 374 F. Supp. 1065.
>
>24. It is clearly established that all
> citizens must file tax returns (like a
> subpoenaed witness must appear and submit
> to questioning) despite hazards of self
> incrimination . . .. The court intimates
> that full disclosure of the amounts and
> sources of income must be made, unless
> the taxpayer makes an objection to his
> return asserting his privileges not to
> incriminate himself.
> See:
> Unites States v. Sullivan, 274 U.S.
> 259.
>
>25. Decisions of the tax court are reviewable
> in the same manner and to the same extent
> as decision of the district court sitting
> in civil action without a jury. Court of
> appeals is bound by factual determination
> of the tax court unless they are found to
> be clearly erroneous or unsupported by
> substantial evidence on the record as
> whole. (26 USCA IRC 1954 P 162 (a), (1).
> See:
> Charles Schneider & Co. v. C.I.R.,
> 500 F. 2d 148 Ca * 1974.)
>
>26. Of all the agencies of government who
> have been most flagrant in violating not
> only the spirit, but the letter of the
> Freedom of Information Act has been the
> Internal Revenue Service which has almost
> become a national scandal.
> See:
> William G. Phillips, sub-committee
> staff director of the Committee on
> Government during the 1972 hearings:
>
>27. The Congress shall have the power to lay
> and collect taxes, duties, imposts, and
> excises, to pay the debts and provide for
> the common defense and general welfare of
> the United States; but all duties,
> imposts, and excises shall be uniform
> through the United States. Article I,
> Section 8, Clause 1, of the United States
> Constitution!!!! Some who have not denied
> the necessity of power of taxation have
> grounded a very fierce attack against the
> constitution, on the language in which it
> is defined. It has been urged and echoed
> that the power "to lay and collect taxes,
> duties, imposts, and excises, to pay the
> debts, and provide for the common defense
> and general welfare of the United
> States," amounts to an unlimited
> commission to exercise every power which
> may be alleged to be necessary, for the
> common or general welfare. No stronger
> proof could be given of the distress
> under which these writers labor for
> objections, than their stooping to such a
> misconstruction.
> See:
> Springer v. United States, 102 U.S.
> 586, (1865). (quoting James Madison,
> as to Article I, Section 8, Clause
> 1, in the Federalist Paper No. 41).
>
>28. If the federal government should overpass
> the just bounds of its authority and make
> a tyrannical use of its powers, the
> people whose creature it is, must appeal
> to the standard they have formed, and
> take such measures to redress the injury
> done to the constitution as the exigency
> may suggest and prudence justify. The
> propriety of law, in a constitutional
> light, must always be determined by the
> nature of the powers upon which it is
> founded. Suppose, by some forced
> constructions of its authority (which,
> indeed, cannot easily be imagined), the
> federal legislature should attempt to
> vary the law of descent in any state,
> would it not be evident that in making
> such an attempt it had exceeded its
> jurisdiction and infringed upon that of
> the state? Suppose, again, that upon the
> pretense of an interference with its
> revenues, it should undertake to abrogate
> a land tax imposed by the authority of a
> state; would it not be equally evident
> that this was an invasion of that
> concurrent jurisdiction in respect to
> this species of tax, which its
> constitution plainly opposes to exist in
> the state government.
> See:
> Alexander Hamilton, in discussing
> government's power to tax,
> Federalist Paper No. 33.
>
>29. Tax---A ratable portion of the produce of
> the property and labor of the individual
> citizens, taken by the nation, in the
> exercise of its sovereign rights, for the
> support of the government, for the
> administration of the laws, and as a
> means for continuing the various
> legitimate functions of the state.
> See:
> Blacks Law Dictionary, Revised
> Fourth Edition.
>
>30. Congress may not, under the taxing power,
> assert a power not delegated to it by the
> constitution.
> See:
> Regal Drug Co. v. Wardell, 260 U.S.
> 386.
>
>31. A tax, in the general understanding of
> the term and as used in the constitution,
> signifies an exaction for the support of
> the government. The word has never
> thought to connote the expropriation of
> money from one group for the benefit of
> another.
> See:
> United States v. William M. Butler,
> 297 U.S. 1.
>
>32. The government asserts that even if the
> respondents may question the propriety of
> the appropriation embodied in the
> statute, their attack must fail because
> Article I, Section 8, of the Constitution
> authorized the contemplated expenditure
> of the funds raised by the tax. This
> contention presents the great and
> controlling question in the case. We
> approach its decision with a sense of our
> grave responsibility to render judgment
> in accordance with the principles
> established for governance of all three
> branches of the government. There should
> be no misunderstanding as to the function
> of this court in such a case. It is
> sometimes said that the court assumes a
> power to overrule or control the actions
> of the people's representatives. This is
> a misconception. The Constitution is the
> supreme law of the land ordained and
> established by the people. All
> legislation must conform to the
> principles it lays down. When an act of
> congress is appropriately challenged in
> the courts as not conforming to the
> constitutional mandate, the judicial
> branch of the government has only one
> duty---to lay the article of the
> Constitution which is invoked beside the
> statute which is challenged and to decide
> whether the latter squares with the
> former. All the court does, or can do, is
> to announce its considered judgment upon
> the question. The only power it has, if
> such it may be called, is the power of
> judgment. This court neither approves
> nor condemns any legislative policy. Its
> delicate and difficult office is to
> ascertain and declare whether the
> legislation is in accordance with, or in
> contravention of, the provisions of the
> Constitution; and, having done that, its
> work ends.
> See:
> United States v. William M. Butler,
> supra.
>
>33. Court of appeals is not empowered to set
> aside tax courts factual findings unless
> they are without support of substantial
> evidence, or basis of the whole record,
> court of appeals is left with the firm
> conviction that justice has miscarried.
> See:
> Haman v. C.I.R., 500 F 2d 401, C.A.
> 9, 1974.)
>
>34. Although taxpayer when filing earlier
> return of enclosed letter protesting
> government policies and proclaimed a
> general intent to seek ways to resist
> payment of taxes, since he did not repeat
> protest in letter attached to W-4 form,
> with employer showing that he had 20
> dependents rather than the previous
> claimed 6 and did not in any way refer to
> protest when asked for an explanation of
> increase in number of dependents, his
> conviction for wilfully supplying
> employer with false or fraudulent
> information about income tax withholding
> could not be set aside on the theory that
> his claim of dependents could have
> deceived no one.
> See:
> She v. U.S., 506 F 2d 1226, C.A. Va
> 1974.
>
>35. Subpoenas duces tecum requiring bank
> president to appear and produce records
> of defendant's bank account constituted
> unlawful invasion of defendants privacy
> and evidence obtained as result of such
> subpoenas should have been suppressed
> where they were issued by the United
> States Attorney rather than by a court,
> and no return was made upon subpoenas to
> the court and subpoenas were issued for
> dates when Grand Jury was not in session.
> U.S. Constitution, Amendment 4, FDIC #2,
> 12 USCA 1829 b.
> See:
> U.S. v. Miller, 500 F 2d 751, C.A.
> Ga 1974.
>
>36. Under the Fourteenth Amendment, the
> legislature is bound to provide a method
> for the assessment and collections of
> taxes that shall not be inconsistent with
> the natural justice.
> See:
> Turpin v. Lenon, 187 U.S. 51, 60
> (1902).
>
>37. To lay with one hand the power of the
> government on the property of the
> citizen, and with the other to bestow it
> on favored individuals to aid private
> enterprise and build up private fortunes,
> is none the less robbery because it is
> done under the forms of law and is called
> taxation. This is not legislation. It is
> a decree under the legislative forms.
> See:
> Miller 20 Wall, 655, 663, 664
> (1874).
>
>38. Pennsylvania declares income tax,
> graduated style, as illegal, and outlaws
> it in the state of Pennsylvania.
> See:
> Amidon v. Kane, Pa. 279 A. 2d 53.
>
>39. Internal Revenue Service could not seize
> private records even with a seizure
> warrant.
> See:
> Vincent R. Hill v. Jay G. Philpott,
> District Director of IRS, et al.,
> No. 18487, January Session, 1971:
> The Seventh Circuit Court of
> Appeals.
>
>40. The power to lay and collect taxes
> conferred upon congress by Article 1,
> Sec. 8, Clause 1, of the Federal
> Constitution, broad as it is, may not be
> invoked in such a way that it violates
> the privileges against self-
> incrimination.
> See:
> Williams v. Rhodes, 393 U.S. 23, 89,
> S. Ct. 5, 21, L ed 2d 24.
>
>41. The primary purpose of Par. 7605 (b) of
> the 1954 IRC, which provides that "no
> taxpayer shall be subjected to
> unnecessary examination or
> investigations," is no more than to
> emphasize prudent judgment in wielding
> the extensive powers granted to them by
> the Internal Revenue Code.
> See:
> U.S. v. Powell, 379, U.S. 48, 85.
>
>42. The decision of the collector of revenue
> ceases to be conclusive when an appeal is
> taken from his decisions.
> See:
> Arthur v. Unkart, 96 U.S. 118.
>
>43. Federal Courts must first determine what
> property or rights to property an
> individual has under state law in
> applying an federal revenue act for
> purpose of determining whether property
> may be sold for unpaid taxes.
> See:
> Herndon v. U.S., 501 F 2d 1219, C.A.
> Ark. 1974.
>
>44. Under Federal income tax statute allowing
> IRS to levy on assets of taxpayer subject
> to jeopardy assessment. Section provides
> for stay of sale of seized property
> pending tax court decision necessarily
> overrides section providing generally for
> authority of Treasury Secretary or his
> delegate in any case in which he may levy
> upon property to seize or sell such
> property or property rights.
> See:
> Clark v. Campbell, 501 F 2d 108, Ca
> tex 1974.) (26 U.S.C.A. IRC 1954,
> 6331 a, b. (3)).
>
>45. IRS has been disallowed to make emergency
> tax assessment, since agency has not been
> giving taxpayers the procedural
> safeguards the law requires,
> See:
> U.S. v. I.R.S., Jan 14, 1976, U.S.
> Court Voted against IRS 5 to 3. The
> majority ruling was by Justice
> Thruston Marshall.
>
>46. . . . Internal Revenue Service cannot
> prevail on a deficiency assessment and,
> thus injunctive relief may be appropriate
> when the asserted claim is entirely
> excessive, arbitrary, capricious and
> without factual foundation. 26 USCA IRS
> Code Sec. 7421 (a),
> See:
> Shapiro v. Secretary of State, 499 F
> 2d 527.
>
>47. Where right to refund of income taxes
> paid is clear, mere difficulty in
> determining, with exactitude the amount
> of recovery, will not defeat the right.
> See:
> National service Inc., v. U.S., 379,
> F Supp 831, D.C. Ga 1974.
>
>48. The purpose of statute providing that no
> suit for recovery of any internal revenue
> tax allegedly erroneously or illegally
> assessed or collected, shall be
> maintained until a claim for refund of
> credit has been filed with Commissioner
> of Internal Revenue, is to afford IRS an
> opportunity" to consider and dispose of
> claim without expense and time involved
> in litigation and to prevent surprise on
> the facts.
> See:
> Lemoge v. U.S., 378 F. Supp, 228
> D.C. Cal 1974.
>
>49. Where taxpayers did not raise issue of
> denial of "due process" at trial in tax
> court, the issue was inappropriate for
> appellate consideration.
> See:
> Hayutin v. C.I.R., 508 F 2d 462,
> C.A. 10,1974.
>
>50. In Federal Tax matters, congress can
> condition taxpayers right to contest
> validity of tax assessments right much as
> it sees fit.
> See:
> Rockwell v. C.I.R., 512, F. 2d 882
> Ca 9 1975.
>
>51. The IRS cannot sue anyone and they are
> not a branch of the Federal government.
> See:
> U.S. v. SYLVESTER A. ZIEBATH & RUSEL
> J. JAGIM, CR 90-50040, WD US
> DISTRICT OF SOUTH DAKOTA.
>
>
>
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