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Date: Fri, 14 Nov 1997 06:21:17 -0800
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Tax Con (fwd)

>                  The Constitutionality of the Income Tax:
>                              Unresolved.
>                              Jack Rifen
>The constitutionality of the income tax, as applied to the wages/salary of a 
>non-government (private) individual has never been adjudicated.  The IRS
>will adamantly tell citizens that they are required to pay income taxes if 
>they received more than the threshold "income" declared in 26 USC 6012, but 
>has such taxation ever been held by the courts to not be an improper 
>imposition on your Constitutional rights? I believe not -- but let us 
>examine what the IRS, government and courts have written:
>Congressional Research Service report No. 84-168A, `Some Constitutional 
>Questions Regarding the Federal Income Tax Laws', updated September 26, 
>1984, is a convenient place to start.  It avoids major constitutional 
>questions except for the Fourth and Fifth Amendment issues, which are 
>grossly distorted.  It does not address the question of whether a citizen 
>has or does not have a secured federal right under the clause of "Liberty" 
>to make a living (earn a salary/ wage) without being compelled to "return" 
>part of that earning to the government.  It avoids any concise statement on 
>the specific nature of the indirect tax; i.e., is it an excise, a duty, or 
>an impost? It suggests the tax is in the nature of an excise but declines 
>to identify any privilege on which an excise tax must be levied.  "In the 
>nature of an excise" is far short of declaring an excise tax.
>The report does come close to constitutional issues during discussion of 
>question No. 5: "Are wages taxable as income?" where it reads, "The fallacy 
>of this argument (that wages are not taxable as income)is that the taxation 
>of wages had never been found unconstitutional and therefore an amendment 
>to the Constitution was not necessary to permit this type of taxation."
>The discussion correctly points out that income taxes on wages and salaries 
>has never been affected by the 16th Amendment.  The Amendment was legislated 
>specifically to reverse the holding of the two Pollock (157 US 429, (1895)) 
>decisions.  These two decisions clearly delineated the income tax into two 
>areas; one area of wages and salaries, and another area of income derived 
>from capital investments.  It was only the issue of taxes on capital 
>investments (rent from property and dividends from bonds) that was before 
>the Pollock court and was subsequently held to be an unconstitutional, non-
>apportioned direct tax.  The Pollock court reiterated that the wage and 
>salary question wouldn't be adjudicated by the court even though the court 
>voided the entire law because the imposition of the tax on wages and 
>salaries would then become the sole surviving tax whereas Congress had 
>intended it to be a minor component.
>While the quoted statement is correct, the first part of the quotation is a 
>pregnant statement.  Neither has the taxation of wages and salaries been 
>declared to be Constitutional! The Pollock court, by separating the income 
>tax into two areas, avoiding any issues concerning wages and salaries but 
>mentioned that these issues had been previously found by the court to be in 
>the nature of an excise.  It is Springer v. U.S., 102 US 586 (1881), to 
>which the court alludes but declines to identify.
>The Springer court declared that if any law was unconstitutional, it was for 
>the people, or for Congress, to change the law.  This may appear improper in 
>looking at recent legislation having been declared unconstitutional by the 
>court, but the setting of 1881 must be taken into consideration.  It was the 
>established policy of the Court to not declare any law unconstitutional, and 
>that practice remained in place until the landmark case of Hurtade v 
>California, 110 US 516 (1884).  It was only after Hurtade that the court 
>accepted the responsibility to void legislation on constitutional grounds.  
>Text books discuss this change as the development of substantive due 
>Therefore, Springer did not adjudicate constitutional impropriety at all.  
>The statement in Springer (that the tax must be in the nature of an excise, 
>duty, or an impost) is a mere observation that such must be the intent of 
>Congress or the law would conflict with constitutional restrictions relating 
>to direct taxation.  To contend that Springer "held" such a point would be 
>contradictory with the self-imposed restriction that a constitutional 
>challenge was being avoided.
>The tremendous import of the implications must not be overlooked.  If 
>Springer did not hold that the income tax on wages and salary is an excise, 
>duty, or impost, then who did? The report acknowledges the 16th Amendment 
>is not relevant.  The Pollock court seperated the income tax into two areas 
>and definitely did not adjudicate wage and salary issues.  The statement on 
>page 3 of the report: "The Pollock Court held that although income taxes 
>are generally indirect taxes in the nature of excises. . . " is a most 
>ingenious example of arranging phrases in a manner that completely contorts 
>their real meaning.  Pollock definitely did not hold income taxes "to 
>generally be excise taxes." Any comment in Pollock on income from wages and 
>salaries is a recitation of prior adjudication, i.e., of Springer.
>In 1909, Congress passed a Corporate Tax and, in addition, the 16th 
>Amendment was submitted to the states for ratification and is alleged to 
>have been ratified in 1913.  The Corporate Tax was merged with the income 
>tax in 1914.  A multitude of subsequent adjudication involves corporations, 
>but not individual rights.  The report goes to great length to leave the 
>impression that taxation of an individual ws adjudicated as constitutional 
>by Pollock, which it certainly was not.  No other authority is even 
>suggested by the report as adjudicating rights of individuals.  Have rights 
>of individuals been adjudicated elsewhere?
>The Court has held that during the 1930's that federal and state employees 
>and recipients of government funds are suitable objects of an income tax in 
>the nature of an excise tax.  If the government wishes to consider 
>recipients of government money to be receiving a privilege on which they may 
>levy an excise tax (read "return"), it may jolly well do so.  John Q. 
>Public does not receive that privilege.
>It is interesting to note that in 1939, Congress legislated that government 
>workers and officers of the government's courts are similarly subject for 
>the income tax.  The fact that lawyers authorized to practice before the bar 
>are legally considered officers of the court and are also subject to the 
>income tax is most appropriate.  John Q. Public is not a privileged officer 
>of the court.
>Constitutional questions that have not been adjudicated by the Court center 
>on basic fundamental rights of individuals that were secured for We the 
>People when we formed the Union.  The rights secured include the right to 
>pursue a livelihood, to make a living, and to provide for a family and
>These rights existed long before the government was formed; they will exist 
>long after the government has passed.  They were established by gifts of the 
>Divine Creator and were secured within the Constitution by the clause of 
>Liberty in the Preamble, the Fifth Amendment, and the Fourteenth Amendment.  
>Corporations, as creatures of the states, do not have these rights.
>The courts have innumerable citations that taxation is a matter of 
>sovereignty, and that over which the government is not sovereign is not a 
>suitable object for taxation.  Government sovereignty does not exist over 
>what has been recieved as a divine gift.  The forms of government wherein 
>political elements have control and sovereignty over the pursuit of 
>livelihoods are not known as a Republic that was secured for us in Article 
>4, Section 4 of the Constitution.
>The courts have declared that if the authority to tax exists, the courts 
>will not intervene if the tax destroys the object on which the tax is 
>levied.  It is only principles and rights that are adjudicated; the degree 
>of damage by the imposition is irrelevant to the court.  "The mere chilling 
>of a constitutional right by a penalty on its exercise is patently 
>unconstitutional." Shapiro v. Thompson, 394 US 618, (1969).  To allow a tax 
>on a divinely given right is to deny a gift that has been given to you by 
>This defense has been discussed in patriot circles for years and has usually 
>been comingled with other unrelated defenses.  A direct confrontation of 
>this defense has been -- must be -- and will be (if at all possible) --
>avoided by the courts.  To uphold the income tax as not infringing 
>constitutional rights would repudiate 200 years of constitutional case law 
>and would reestablish the feudal society fractured by the Magna Carta.
>[Reprinted from `Freedom League Newsletter', Aug/Sept. 1986; from Justice 

Paul Andrew Mitchell, Sui Juris      : Counselor at Law, federal witness 01
B.A.: Political Science, UCLA;   M.S.: Public Administration, U.C.Irvine 02
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