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VIN
SUPRYNOWICZ:
Is it enough to say, 'Show us the law'?
May 07, 2006
Copyright © Las Vegas Review-Journal
Last time, we were
previewing former Hollywood producer and former Nevada
gubernatorial candidate Aaron Russo's new documentary,
"America, Freedom to Fascism." The film argues it's enough
to set us free, for citizens and jurors simply to ask of
those enforcing the personal income tax, "Show us the
law."
I fear it's not.
High-ranking Treasury officials and congressmen won't show
the law to -- won't engage in a public, methodical,
videotaped examination of the tax code and related court
decisions with -- well-educated members of the tax
education movement. They've promised to do so on many
occasions, but they always back out, instead relying on
surrogates to ridicule the questioners (though never under
oath and cross-examination), often rebutting an assertion
never made (that being that the Supreme Court has outlawed
the income tax).
We have a right to ask why.
It's not far-fetched to conclude this is because they
can't successfully answer the proper chain of questions
they would open up once they specified which law they're
going to cite. Who says so? Former IRS special agents Joe
Banister and Sherry Jackson, who are featured in this
film, to name just two. When Banister asked the director
of the IRS, in writing, to answer some basic questions
about the law -- why Americans don't have a Fifth
Amendment right against self-incrimination on their tax
forms, for instance -- Banister was simply invited to
resign.
But the amateur juror -- or whoever -- who's going to make
this demand needs to be educated enough to knowledgeably
discuss Supreme Court rulings, including Doyle v. Mitchell
Brothers ("We must reject ... the broad contention
submitted in behalf of the government that all receipts,
everything that comes in ... are income ... ") and Conner
v. United States ("Congress has taxed income not
compensation").
He or she must be able to grasp:
-- Brushaber v. Union Pacific Railroad, in which the court
said: "The 16th Amendment as correctly interpreted, is
limited to indirect taxes and for that reason is
constitutional ... "
-- Stanton v. Baltic Mining: The 16th "prohibited the ...
power of income taxation possessed by Congress from the
beginning from being taken out of the category of indirect
taxation to which it inherently belonged ..."
-- Eisner v. Macomber, confirming the 16th Amendment
granted no new taxing authority, that it "must be
construed in connection with the taxing clauses of the
original Constitution."
He or she must then be able to relate that to what the
court said about direct taxes not apportioned in Pollock
v. Farmers' Loan & Trust ("The Constitution prohibits any
direct tax, unless in proportion to numbers as ascertained
by the census ... [and] ... prohibits Congress from laying
a direct tax on the revenue from property of the Citizen
without regard to State lines ... "), an 1895 decision
which the high court subsequently and repeatedly found not
to have been overruled by the adoption of the 16th
Amendment.
"The 16th Amendment does not extend the powers of taxation
to new or excepted subjects," the high court ruled in Peck
v. Lowe, for example. "Neither can the tax be sustained on
the person, measured by income. Such a tax would be by
nature a capitation rather than an excise."
In other words, an income tax is perfectly legal and
constitutional, but it must be either an avoidable excise
on a privileged activity (trading one's labor for
compensation is a right, not a privilege; wages are not
"income," according to the high court in Stapler v. U.S.)
or else it must be a direct tax, capitated and apportioned
among the states, as these are the only two types of
federal tax allowed by the Constitution, a situation
unchanged by the 16th Amendment.
Can the G-men show jurors a law that says everyone who
owes the tax has to file? Of course. But who owes the tax?
A less arrogant judge or IRS man might respond by showing
them a part of the Internal Revenue Code that says every
individual who earns any income, from any source, owes the
tax. And that's where most common, decent folk who don't
think like federal lawyers are likely to shrug and say,
"Well, OK then, they showed us the law."
But at Title 26, chapter 21, subtitle C, Section
3121(e)(2) the law declares that, for purposes of the
specific Social Security statute used to number
taxapayers, "The term 'United States' when used in a
geographical sense includes the Commonwealth of Puerto
Rico, the Virgin Islands, Guam and American Samoa."
Such wording may SOUND as though it means "as well as the
50 states." But in Hassett v. Welch, 1938, as well as in
Gould v. Gould, the Supreme Court ruled any tax statute
must be read in the most restrictive way possible, to
benefit the taxpayer and not the government, which means
if they'd meant to include "and the 48 contiguous states
and Alaska and Hawaii," they would have had to actually
add that.
Why didn't they? Because the law is constitutional as
currently written, the tax skeptics argue, since the
Congress has plenary authority in the territories (see
Hooven v. Evatt; Downes v. Bidwell). It would only be
unconstitutional if it said the income tax could be
enforced as it currently is (as a direct tax against the
person, but not capitated and apportioned) in a geographic
region "including the following 50 states: Alabama, Alaska
..."
So the law was written in a way that makes it perfectly
legal -- if you read it closely enough. Could that be why
the familiar IRS Form 1040 bears OMB approval control
number 1545-0074, indicating it's actually a work sheet to
be attached to the proper form for "individuals" to use in
filing an income tax return, that being OMB control number
1545-0067, designated form 2555, headlined "Foreign Earned
Income"?
It takes a brave and well-informed juror to stand up to a
stern-voiced judge as His Highness intones, "We don't have
that here. That doesn't apply here. You'll apply the law
as I explain it to you. I don't have to show you no
stinking statute book. You're not allowed to discuss any
Supreme Court rulings here."
Remember, the transcript of Irwin Schiff's recent federal
trial here in Las Vegas, prominently featured in Mr.
Russo's film, reveals Judge Ken Dawson shouting,
"Irrelevant! Denied!" when Mr. Schiff tries to cite these
Supreme Court rulings.
I dare say Mr. Russo would argue the kind of detailed,
legally rigorous film that would properly prepare a
citizen juror to stand her ground in such a confrontation
would run for many hours, and put many viewers to sleep.
He'd probably be right. The federals have had 90 years to
weave their tangled web. Just properly explaining their
arrogance and their deviousness takes longer than most
modern government-school graduates can sit still and
focus.
Mr. Russo would doubtless argue a two-hour entertainment
neither can nor should constitute a rigorous, footnoted
legal filing. All he can accomplish here is an emotional
"wake-up call."
"America: Freedom to Fascism" is that wake-up call. But it
should be accompanied by a reading list. This film
provides audiences with some truths too long obscured, and
with a little knowledge. Truth, of course, can set us
free. But too small a dose of knowledge can also be a
dangerous thing.
Vin Suprynowicz is assistant editorial page
editor of the Review-Journal and author of "Send in the
Waco Killers" and the new novel "The Black Arrow," which
has made the short list of nominees for both the 2005
Prometheus Award and the 2005 Compton Crook Award.
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