by William Conklin
This book is dedicated to Dick Viti, one of the few brave attorneys in America. Dick took personal action after he became aware of the issues outlined in this book. Dick was singled out, prosecuted and convicted for having the temerity to stand up and tell the public the truth. His only failing was that he had, like others who had gone before, faith in the legal system. He felt that the system would see the truth once it was properly presented; he did not foresee that the legal system would ignore the Constitution and the many related rulings by the Supreme Court in order to protect the federal tax system.
The Problem With the Tax System
1. My story: How It All Began
2. The Fifth Amendment
3. The Tax Return and the Privacy Act Notice
4. What the Attorneys Say!
6. My 10th Circuit Case
7. The Tenth Circuit Proves--
We Waive Our Rights When We File Returns
8. The Internal Revenue Code
9. The IRS and Criminal Prosecutions
10. The IRS: A Modern Gestapo
11. The Summons Power of the IRS
12. What You Can Personally Do About the Problem
13. What Will Uncle do?
14. Empower Yourself
15. Questions and Answers.
The Problem With the Tax System
All individuals who file tax returns waive their Fifth Amendment protected rights.
The government cannot require individuals to waive their Fifth Amendment protected rights.
The income tax system of the United States has become absurd. It has become absurd because it has become complicated beyond belief. The system is so complicated that the average person must spend hundreds of dollars each year for professional help or on computer software in order to attempt to comply with the system. Individuals feel compelled to sign documents, under the penalty of perjury, that they do not understand. The IRS misleadingly refers to the tax system as "voluntary." They do so because they know that requiring individuals to provide information on 1040 returns--information which may be used to criminally prosecute the provider--would create a severe constitutional problem.
The IRS routinely prosecutes individuals who choose not to voluntarily file 1040 returns, in order to keep the pressure on the rest of the public to continue to volunteer. Criminal prosecutions, unsubstantiated and arbitrary Notices of Deficiency, garnishments, outrageous penalties and illegal searches and seizures, are all tools the IRS employs to force "voluntary" compliance with the present tax laws. The IRS is an agency out of control. It has little respect for the right to due process, or the many other rights of the citizens of this country which are protected by the Constitution. It is time for a change and this book will tell you, in plain and simple language, how you personally can become a catalyst for making change.
So, sit down in your favorite chair and give me about two hours of your time. I'll expose for you the most incredible scam ever perpetrated on the American public: the federal income tax system.
You will learn in this book that:
1. There is no statute that makes a person liable or responsible to pay the income tax. Individuals only become liable to pay the income tax when they voluntarily file a tax return, or when the IRS follows its assessment procedures as outlined in the Internal Revenue Code.
2. If there were a statute which clearly and unequivocally required the filing of tax returns, such a statute would be unconstitutional under the present income tax system to the extent that it would require individuals to give the government information which could be used against them criminally.
3. The IRS, under our U.S. Constitution, cannot legally require information on 1040 returns from individuals--that is why the IRS continually refers to the income tax as "voluntary."
How it All Began for Me
The year 1976 was the two hundredth anniversary of the signing of the Declaration of Independence. During that year, there was a lot of interest in the Constitution and its influence on modern society. One day in early June of 1976, I was walking to get a bit of exercise after a hard day spent as an elementary school teacher, when I noticed a sign on the front of an old building which read: "National Tax Strike." My generally strong curiosity led me to enter, and the subsequent meetings and conversations I had with the folks I met inside that building started me on the twenty year voyage that eventually led to the writing of this book. Inside the building, I met several gentlemen whose ideas at first seemed completely loony to me. However, they did get my attention with their views on the tax laws, and gave me enough incentive to begin my own research. After several months in a law library, I realized they had some valid concerns, and I too "went public" with my new-found knowledge. A local newspaper in the Denver area published an article quoting my comments about the tax system.
The IRS immediately sent me an audit notice and proceeded to do everything they could to shut me up and destroy me emotionally and financially. During the extensive litigation that followed over the years, however, I defeated the IRS six times! My wins in the federal Tenth Circuit Court of Appeals are published in the Federal Reporters found in the law libraries.
If you visit a law library, you may obtain photocopies of the published court decisions in the cases that I have won. There is no doubt that in over twenty years of litigation involving these cases, the IRS has spent hundreds of thousands, if not millions of dollars fighting me, a little guy! It is a shame that the IRS wasted so much money with their frivolous litigation--not just once, but six times!
If you were to raise similar challenges against the IRS, you could have published wins in the lawbooks, too. The challenges I've made are not difficult to make, nor do you have to have formal legal training to understand. However, the implications of repeated losses for the IRS are significant. If more of us forced such losses, the laws would have to be changed by Congress. The only reason the present tax system continues to exist is because not enough people take time to challenge it. In fact, they continue to voluntarily waive their rights (rights which the Fifth Amendment was designed to protect) every time they file 1040 returns; they do everything they can to avoid litigation with the IRS when the agency challenges them.
Here are just a few of the details of some of the challenges I've made to the IRS. In 1977, I set up a church to promote my religious beliefs, and take advantage of the tax laws relative to churches. (I also started exercising my First Amendment protected rights by telling others about my beliefs, and sharing with them the concepts for setting up their own church. The IRS became extremely upset with me because in establishing these churches I made sure that all of the rules set out in the law were strictly followed and thereby forced the IRS to let the small churches take advantage of the tax breaks which the law allows all churches.) When followed to the letter, the laws passed by Congress pertaining to all churches, large and small, allow literally billions of dollars of church assets and income to escape taxation--church organizations are exempted from the tax laws by the IRS. Of course, if there were true separation of church and state, churches would actually be immune from government regulation and taxation and thus wouldn't even have to ask the IRS for exemption, but I won't sidetrack on that issue here.
In an effort to discourage my activities, the IRS attacked my church and told me they would pull the exempt status of the Church if I didn't answer some additional questions to their satisfaction. We went to court over their efforts to force my answers. In my first case, Church of World Peace, Inc. v. IRS, 715 F.2d 492, the Tenth Circuit ruled that the IRS couldn't pull the tax exempt status they had previously granted me, without following all the procedures to the letter, including first issuing me a summons.
Seeing that I was going to dig in my heels and not be quickly intimidated, the IRS backtracked a bit and issued a summons, as instructed. I filed a court action challenging the summons, but the district court ordered it enforced, so in order not to be held in contempt of court, I had to appear and answer some of the IRS' questions. I wasn't done, though. I appealed. In my appeal, United States v. Church of World Peace, 775 F.2d 265, the Tenth Circuit Court of Appeals essentially ruled in favor of my argument, and quashed the lower court's enforcement order! Even though I won this round, I wasn't refunded any court filing fees or granted any monetary relief for the costs I had incurred. However, in reading over the rules and the law, I noticed that since this was a summons issue, I could at least apply for a small witness fee, which I did. Their own code says they must pay it since I appeared in answer to the summons. However, the IRS refused to pay me (probably because they didn't get all the answers they had wanted), so I sued them again, this time in order to collect the meager witness fee! Again, the lower court seemed only too anxious to help the government--they sanctioned me $1,000 for filing what they called a frivolous lawsuit. But again I stuck to my guns, and again I prevailed. In the case of Conklin v. United States, 812 F.2d 1318, the Tenth Circuit reversed the lower court. (Additionally, they chastised the Department of Justice for misrepresenting the facts in their responses to my lawsuit!)
Because the summons enforcement order had ultimately been quashed, I filed a motion to suppress the information that the IRS had obtained from my forced response. Since the information had already been obtained by the IRS, the court held that my motion issue was "moot." (See U.S. vs. Church of World Peace, 878 F.2d 1281.) However, some years later, the Church of Scientology took the exact same concern up to the U.S. Supreme Court. (See Church of Scientology of California v. United States of America 113 S.Ct, 447; 121 L.Ed.2d 313.) In the Scientology case, the Supreme Court reversed the earlier ruling that the Tenth Circuit had made in my case, and even pointed to my case as an example of "bad" law. They ruled that my issue had not been moot and that relief should have been granted. With this encouragement, I subsequently re-litigated my case and I won that case, too!
My battle was not over though. After defeating them on this initial church issue, the IRS decided to lay on me a statutory Notice of Deficiency for tens of thousands of dollars that I didn't owe. In this personal attack on me, their true colors and incipient tyrannical tendencies showed up. Without going into the details of this case, suffice it to say that the Tenth Circuit ultimately reversed everything the IRS argued. (See Conklin v. C.I.R., 897 F.2d 1032 and Tavery v. United States, 897 F.2d 1027.) For those readers who may wish to check all this out in the law library, you'll note that the IRS finally settled the financial part of this battle in a case titled Tavery v. United States, Civ. No. 87-Z-180, USDC Colorado. I think they did so because they knew they would otherwise have to defend their outrageous actions to a jury, if the case were to have gone to trial.
Eventually, in 1995, the IRS got their way. The Tenth Circuit Court of Appeals upheld a Tax Court judge's opinion revoking the tax exempt status of the Church of World Peace--for doing the same things that other churches do. The Tenth Circuit ignored its previous rulings (where they had decided in my favor), and they ignored the decision by the Supremes in the Scientology case. Interestingly, they chose to mark the last Church of World Peace case, "not for publication."
Although I finally lost the battle, I feel that I won the war, because I learned so much about the IRS and the courts in the process. I have learned that knowledge of the law is only one small part of the issue. The "big picture" issue is realizing and understanding how the courts and the government bend the law if it is in their best interest, that is, if they feel it necessary in order to defeat a perceived threat to the sacrosanct tax system. I'm not saying such things because I'm a poor loser, but because that's just the reality of it. I certainly have no regrets about the final outcome, because I have gained invaluable insights into the methods and madness of the courts and the government in general. I have learned how to litigate and obtain justice in spite of that terrible reality.
My next-to-last case to date argued before the Tenth Circuit was Tavery v. United States, 32 F.3d 1423 (10th Cir., 1994). Although the IRS thinks they won this case, they don't really understand the implications of the Tenth Circuit decision. The Tenth Circuit ruled that information may be entered from tax returns into criminal cases involving third parties if the individual who filed the return is either a friend, spouse or relative of the defendant. That means that if the IRS is prosecuting a friend of yours they can, according to the Tenth Circuit, use information in that friend's case which came from your personal finances, if they think that you might have been able to provide financial help for the friend. If the courts take the position that information from your return may be inserted into third party cases, it becomes clear that every time you file a return, you waive not only your rights to privacy (protected by the Fourth Amendment) but also your rights to not witness against yourself (protected by the Fifth Amendment). If that doesn't bother you, you may as well put this book down now; I'm wasting your time. The IRS insists that you waive many of your rights when they insist that you file a tax return; they deceitfully tell you that you are voluntarily filing because they and the courts both know that the government simply cannot require you to waive any rights protected by the Constitution. They're worse than sneaky; they know that as long as you voluntarily provide information, you haven't a legal leg to object on if they later decide to use the volunteered information against you.
As I learned more and more about my rights, the constitutional protections of my rights, and the intricacies of IRS procedures and the federal court system, I eventually realized that I was on to something big. I saw the IRS' use of return information in criminal cases directly colliding with the Fifth Amendment. I realized that the Achilles heel of the federal income tax code was in the Bill of Rights to the United States Constitution, specifically the Fifth Amendment.
Much additional case studying and research in the law library convinced me that the Fifth Amendment was the reason I had never been able to find a specific statute requiring me to file an income tax return! I began publishing an offer for a reward of $50,000.00 to anyone who could satisfactorily answer the following questions:
1. How may I file a tax return without waiving my Fifth Amendment protected rights?
2. What statute in the Internal Revenue Code makes me liable to pay the income tax?
I've published my reward offer for several years now, and although several famous attorneys have applied for it, none of their answers have really qualified them for it.
In 1986 I decided to file an unsigned tax return. I submitted the unsigned return with a cover letter pointing out that I had discussed with several attorneys my perceptions of the Fifth Amendment conflict with the requirement of filing returns, and none of them had been able to show me how I could file a return without waiving my rights. I enclosed photocopies of their written opinions to that effect. I gave the IRS the power of attorney to sign the return for me if they could do so without waiving the Fifth Amendment protections of my rights.
The IRS fined me $500 for my concern! They told me that without a signature I was filing a frivolous tax return and was thus subject to their $500 penalty for filing a frivolous return. Far from giving up my habits of challenging their rulings, I filed a suit to argue the issue. During five years of wrestling with the issue, Judge Nottingham, a federal judge in Denver, Colorado told me that if he were to rule in my favor, he was afraid that he would overturn the federal tax system. Finally he ruled against me, but he took the position that the Fifth Amendment does not apply to the federal tax system because the Fifth Amendment only applies to "compelled testimony." I appealed the case and the Court of Appeals (the Tenth Circuit again, in Denver) upheld Judge Nottingham's contention that tax returns are not the compelled testimony spoken of in the Fifth Amendment, and that therefore the Fifth Amendment does not apply to the income tax system. (See more on this case in Chapter Six.)
This was an incredible ruling. In other words, the court ruled that filing tax returns is not required, or compelled. Said yet another way, the courts had just ruled that filing returns was truly voluntary! Perhaps the government realized that significance of the ruling, too, because they lost no time in trying to put a damper on my celebration of what the ruling truly signified; they immediately asked the court to order me to pay them $6,000 for the valuable time it had taken their attorneys to prepare arguments and motions to defend against my "frivolous" contention. Permit me to also state this another way: the government wanted the court to fine me for taking the position that the filing of income tax returns was compelled or required!
Are you confused yet?! I hope not, in fact, I hope you feel the same elation I felt about the outcome. I thought it was great! As the judge had mused out loud earlier during one of our hearings, either way he ruled, I win! For example, if he were to have ruled that the $500 fine be abated, he would have had to decide that the unsigned return and my concerns were not frivolous. But he couldn't do that, because then other folks might start submitting unsigned returns. That would pull the IRS' teeth--they could no longer fine folks for submitting a "frivolous" return, but more importantly, how then could the IRS use anyone's return information against them criminally if they hadn't signed it "...under the pains and penalties of perjury"?
On the other hand, his upholding the $500 fine would mean that he was ruling against the written, professional opinions of six attorneys whom I was relying on, and would underscore the uncomfortable fact that their opinions brought into sharp focus; namely, that the IRS could use the club of a fine to force me to sign and submit a return, forcing me to waive my God-given rights not to be a witness against myself.
Either the Fifth Amendment applies because filing returns is compelled, or the Fifth Amendment does not apply because filing returns is voluntary. Of course, if the Fifth Amendment applies, then my argument is far from frivolous, and if the Fifth Amendment doesn't apply, I have proven my point that filing is not required. In any event, the only way that justice can prevail, in the face of a judicial system that will declare words to mean their opposites in true Orwellian fashion (or Alice in Wonderland, whichever prose you prefer), is for the American public as a whole to become aware of the terrible deceit that has been perpetrated on them regarding the federal income tax, and to make their own challenges. The IRS, in an obvious attempt to deal with the problem, continually refers to the income tax system as voluntary. This book will tell you that I believe the IRS is right; as long as we have the Fifth Amendment to protect our rights, filing returns must indeed be voluntary. And I believe we can shove such words right back down their throats until they, too, go with us to the Congress and demand that the law be changed!
The Fifth Amendment
Article V: United States Constitution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on the presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. (emphasis added)
As our proposed Constitution was being discussed prior to adoption, many people expressed concern that it gave too much power to a central government. To calm such concerns, eventually a Bill of Rights was proposed and adopted which listed several prohibitions to the new government--certain individual rights which the government was to understand from the beginning that they could not infringe upon. The Fifth Amendment is part of the Bill of Rights and it holds that individuals cannot be required to give the government information which may be used against them in criminal cases. Subsequent case law has applied the Fifth Amendment in civil cases, too, when there is the possibility that the information in question may be used criminally. (Of course, there is always the possibility that information may be used for criminal prosecution in a system like our present tax system--where civil enforcement is used by an agency to gather information that the very same agency may utilize for criminal prosecution.)
When police question an individual for information that may be used against that individual in a criminal case, they are supposed to first read him a "Miranda" warning to advise him of many of his rights (from Miranda vs. Arizona, 384 U.S. 436; 1966). After such warning, every time that individual does answer a question, he is voluntarily waiving the Fifth Amendment protection of his rights; he cannot later object when the answers he volunteered are used in his criminal prosecution.
If an individual is indicted and taken to trial by the government, he cannot be required to testify against himself. The government must have enough information before the indictment to convict the individual without his own testimony. The Fifth Amendment protections we all enjoy are thus extremely important to protect us against government prosecution and persecution, but as you will see from the rest of the information in this book, the government cynically ignores the Fifth Amendment in the collection of income taxes. Since the population is generally ignorant as to the nature of their rights and their constitutional protections, the federal government continues to get away with the biggest scam in United States history; they've done so for over eighty years. The government of the United States of America, through its agency the Internal Revenue Service, supported by a court system that deliberately ignores the law in tax cases, is cynically requiring individuals to waive their Fifth Amendment protected rights to provide information on April 15, that may be used against the individual criminally. Such a situation makes a complete mockery of the Fifth Amendment. Through the IRS and the Department of Justice the government, by carefully orchestrated trials and outrageous fines and criminal penalties, instills fear and thus perpetuates a tax system which is not only un-American in that it taxes an individual's industriousness and productivity, but un-constitutional in that Americans must waive their constitutionally protected rights in order to comply with it. In this manner, they essentially beat confessions out of 100 million Americans each year, and make a mockery of our Bill of Rights. It is time for us to wake up, assert our God-given rights again, and reveal the truth to others.
The Tax Return and the
Privacy Act Notice
All government agencies are required to tell the public the law and the penalties for not obeying the law under the Privacy Act. The following statement is the IRS' Privacy Act Notice as it appears in the 1040 Instruction Booklet.
The law says that when we ask you for information we must tell you our legal right to ask for the information, why we are asking for it, and how it will be used. We must also tell you what could happen if we do not receive the information and whether your response is voluntary, needed for a benefit, or mandatory under the law.
This notice applies to all papers you file with us, including this tax return. It also applies to any questions we need to ask you so we can complete, correct, or process your return; figure your tax; and collect the tax, interest, or penalties. Internal Revenue Code Sections 6001, 6011, and 6012(a) say that you must file a return for any tax for which you are liable. Your response is mandatory under these sections. Code section 6109 says that you must show your social security number on what you file, so we know who you are and can process your return and other papers. You must fill in all parts of the tax form that apply to you. However, you do not have to check the boxes for the Presidential Election Campaign.
We may give the information to the Department of Justice and to other Federal agencies, as provided by law. We may also give it to cities, states, the District of Columbia, U. S. Commonwealths or possessions, and certain foreign governments to carry out their tax laws.
If you do not file a return, do not give the information asked for, or give false information, you may be charged penalties and you may be subject to criminal prosecution. We may also have to disallow the exemptions, exclusions, credits, deductions, or adjustments shown on your tax return. This could make the tax higher or delay any refund. Interest may also be charged.
Please keep this notice with your records. It may help you if we ask you for other information. If you have questions about the rules for filing and giving information, please call or visit any Internal Revenue Service office. (emphasis added)
Most people in the United States of America have heard of the 1040 Income Tax Form and the rest of the forms in the 1040 family. Each year, approximately 100 million people rush to the post office (many at the last minute!) to give the government complete information on their financial lives. Amazingly, thousands, perhaps even millions of these individuals file their returns without any real understanding of the form or the information placed on it. Their lack of understanding is why they use CPAs and computer programs to prepare the documents for them. But think on this: they then sign the forms they don't understand, ofttimes prepared entirely by others, and swear to their accuracy "...under the pains and penalties of perjury!"
I have to hand it to the IRS for their fantastic conditioning of millions. Millions of individuals blindly and unthinkingly commit the federal crime of perjury each year because they file income tax returns that they do not understand and that they thus could not explain or defend. (Perjury is a serious felony punishable by a fine of up to $2,000 and a jail term of up to five years, or both--see Title 18, United States Code, Section 1621.)
The IRS is very aware of the fact that they have a legal right to use any information given to them on a 1040 Form. They are also aware that the Privacy Act requires all government agencies to inform the public about the law and to tell the public what they might do with the information requested, as well as advise them of the consequences for disobeying the law. That is why the IRS warns us that information on tax returns may be given to the Department of Justice.
The IRS goes to great lengths in their Privacy Act Notice to create a confusing situation. After all, they want you to think that you are required to file a return and at the same time warn you that you are giving them information that they can use in a criminal case (yours!). The Privacy Act Notice also states that individuals are required to file a return "...for any tax for which you are liable." You are referred to IRS Code Sections 6001, 6002 and 6012. Get a copy of the IRS Code in the law library and read those sections. Do you see where they make you liable to file a return? These sections don't make you liable, they simply state that if you are liable, then you must file. Discuss these sections with your attorney. They will have to conclude that in and of themselves, the language of these sections do not make you liable to pay an income tax. (The lawmakers didn't simply mis-speak here. Contrast these sections with Section 5005, for example. This section very clearly specifies that if you distill or import distilled spirits, such action makes you liable for the tax.) Your attorney will likely further conclude that you are not liable for the tax unless and until you voluntarily file a return. Such action is what assesses or bills you; by signing the bill, you are making a promise to pay. Again, there is no section in the Internal Revenue Code that generally makes individuals liable to pay an income tax.
Read their lips (and their written words); the IRS insists it's voluntary!
If you will look through their literature, you will see that the IRS continually refers to the income tax as a "voluntary tax." They also say that millions of individuals voluntarily file returns. Several years ago, I searched through the entire Internal Revenue Manual and I found numerous instances of the IRS' use of the word "voluntary" in relation to the filing of income tax returns.
Here are some examples:
Chapter 6200 at 6210 states that... "It is the goal of the Internal Revenue Service to encourage and achieve the highest possible degree of voluntary compliance with the tax laws..."
Chapter 100 at 110 states that... "The primary mission of the Taxpayer Service is to promote voluntary compliance through education and assistance to taxpayers."
In Part VI, under Section 6810-Taxpayer Service, it is stated at (13) 31(1)(f) that... "returns are voluntarily submitted by taxpayers."
In Operating Techniques and Reporting Section 6810 at (13) 91(1)(a), the Manual states: "securing a valid voluntary income tax return from the taxpayer..."
In the Section on IRS Policy Statements at P-4-84, the Manual states: "The purpose of criminal tax investigations is to enforce the tax laws and to encourage voluntary compliance."
In the General Section, at 4022.65(3) it is said that... "When a person indicates he/she will voluntarily comply but requests that he/she be served..."
In the Automated Collection Function Procedures at 5535.4, the Manual states that the IRS may file returns under 6020(b) if the returns are... "not filed voluntarily.")
Furthermore, Webster's Dictionary defines the word voluntary to mean the following:
Voluntary: brought about by one's own free choice; given or done of one's own free will; freely chosen or undertaken; arising in the mind without external constraint; spontaneous; in law, (a) action done without compulsion or persuasion.
The IRS' Privacy Act Notice doesn't mention that the only purpose of the Department of Justice is to investigate and prosecute crimes. If it did, more folks might pause and ask why the IRS would be alerting them to the possible sharing of their individual return information with that prosecutorial agency. I think this is deceitful: the IRS doesn't really want you to know that you are providing information that they can use against you. However, they know that they must have something in print to point to in the event you later try to claim you were never told that you were waiving the Fifth Amendment protections of your rights by "volunteering" the information. Note that the Fifth Amendment states that you cannot be compelled to witness against yourself; and note further that its protections don't apply if you can be tricked into voluntarily witnessing against yourself. Doesn't this make you just a teensy bit mad?
At the risk of belaboring this point, the IRS would not be required to give the warning that information may be given to the Department of Justice unless they were allowed to use information on tax returns in criminal cases. So when we read the Privacy Act Notice, we should know beyond a doubt that filing returns is indeed "voluntary" because the IRS is warning us that they can give the information to the Department of Justice. To say it one more time: when you send in a tax return, you have been forewarned how the information may be used. Since, in spite of that warning, you have voluntarily given the information on the return to the government, you cannot later object if they decide to use it against you in a criminal prosecution.
Each year the IRS indicts several hundred individuals who have not filed tax returns, in order to keep a degree of fear alive in the general public and keep them volunteering. Although the IRS refers to the filing of returns as voluntary, they have both criminal and civil penalties for those individuals who do not volunteer. That is why any challenge or stand you make for the truth and the Bill of Rights is serious business, and why you must know what you are doing. You are dealing with a corrupt government agency and a major judicial conspiracy to protect the income tax. The actions of both the IRS and the courts have the blessing of our elected representatives. That is why this situation can only be changed by the people themselves.
What Do the Attorneys Say?
Guy Curtis, an attorney who practices law in Imperial, Nebraska and who has extensively studied the issues discussed in this book, has the following to say about the federal tax system and its filing "requirements". Mr. Curtis put his legal opinion in writing in 1985:
In response to your letter requesting my legal opinion as an attorney regarding the voluntary nature of filing an income tax return, I am generally in agreement with Mr. Rendelman's excellent analysis of the income tax laws. Regarding my own qualifications and experience, I have served as an elected prosecuting attorney for over twenty years. In addition, I have handled a number of criminal tax trials in federal courts as defense attorney.
The average individual is utterly intimidated by the voluminous 6000 plus pages of the Internal Revenue Code. It is so vague, confusing and impossible to understand that even Commissioner Roscoe Egger, Jr., I.R.S., told an audience on November 30, 1984, in Baltimore that: Any tax practitioner, any tax administrator, any taxpayer who has worked with the Internal Revenue Code knows that it is probably the biggest "mishmash" of statutes imaginable. Congress, various Administrations and all the special interest groups have tinkered with it over the years, and now a huge assortment of special interest and pet economic theories have been woven into the great hodgepodge that is today's Internal Revenue Code. IR-84-123, 11-30-84.
Even President Reagan has attested to the fact that the Code is impossible to understand (for the average citizen). The President said in a 1984 Associated Press (AP) Release: The government has the nerve to tell the people of the country, 'you figure out how much you owe us - and we can't help you because our people don't understand it either - and if you make a mistake, we'll make you pay a penalty for making the mistake.'
The Supreme Court, in Garner vs. U.S., 424 U.S. 648 (1975), held that the information in a return is, for Fifth Amendment analysis, the testimony of a witness. Therefore, since no citizen can be compelled to be a "witness" against himself, any statute that attempted to require a citizen to file a return which could be so used would be unconstitutional.
I must tell you that the Internal Revenue Service and the Federal Courts have taken positions that are in conflict with the opinion in this letter. However, in IRS publication #17, the IRS says that where there is a conflict in the Court decisions, the IRS will favor the position of the government, not the taxpayer, even though this policy is a blatant violation of the well established legal principle that in case of any ambiguity of statutory construction, the doubt should be resolved in favor of the taxpayer, not the government. See Greyhound Corp. vs. U.S., 495 F.2d 863 (1974).
I cannot tell you not to file an income tax return. As the IRS itself stated in their Publication 21, you must make this decision.
However, the critical point as to whether your decision not to file would be "criminal," that is, in violation of section 7203 depends on your "intent." Merely proving that you filed to file a return is not enough. The government must also prove beyond a reasonable doubt that your failure to file was "willful." Failing to file a tax return is not a crime. As stated by Mr. Rendelman, if you reasonably believe in good faith that you are not required under the law to file a return, then your action cannot be considered to be "willful" or in "bad faith," even if you're wrong. By virtue of the fact that you have sought, accepted and relied upon a professional opinion, your actions ought to be construed as "reasonable" and "in good faith," not "willful" or in "bad faith."
In the Bishop case referred to in Mr. Rendelman's letter, the United States Supreme Court said that any person who relies upon a prior decision of that Court cannot be "willful". Consequently, any person relying upon the decision of Flora vs. U.S. which stated that our tax system is voluntary, cannot be considered to be acting with "willful" or "evil" intent as formulated in the Bishop case. The Supreme Court in the Bishop case said, "it is not the purpose of the law to penalize frank differences of opinion." If the government were to prosecute you without evidence of willfulness, it would be the same thing as prosecuting you for murder without having a witness, or even a body.
A citizen is entitled to rely on an official interpretation of the law even if mistaken. See U.S. vs. Barker, 546 F.2d 940 (1976), District of Columbia. In this case, the Federal Court of Appeals cites the Model Penal Code which states the defense as follows:
"A belief that conduct does not legally constitute an offense is a defense to a prosecution...when (b) he acts in reasonable reliance upon...a judicial decision,... or... an official interpretation of the public officer charged by law for the administration or enforcement of the law." Sec. 204 (3)(b).
Again, the individual has no patriotic duty to volunteer any more than what the law requires. The Supreme Court in Gregory vs. Helvering, 293 U.S. 465 said it in plain words:
"The legal right of the taxpayer to decrease the amount of what otherwise would be his taxes or altogether avoid them by means which the law permits, cannot be doubted."
I applaud your research and study of the law, and urge you to continue. If you have any questions, please don't hesitate to call me.
Yours very truly,
My $50,000.00 Reward
I studied the Fifth Amendment issue for years before I felt positive that the government has a severe conflict with it and their alleged filing requirement. I am completely convinced that the government is abusing the Fifth Amendment severely every time it indicts an individual or civilly penalizes an individual for not filing a return. It saddens me to think that our government resorts to skullduggery to get away with such abuse, but unfortunately it is true. Once I understood the problem, I tried to think up a way that I could call attention to the situation and at the same time, convince people that I am right. I decided at that point to offer a $50,000 reward to anyone who could show me:
1. How I could file a tax return without waiving my rights protected by the Fifth Amendment, and
2. The statute in the Internal Revenue Code which made me liable to pay an income tax.
Soon after I started advertising my reward, the famous "palimony" attorney Melvin Belli applied for the reward. He even threatened to sue me if I did not send him the $50,000 immediately. Mr. Belli said that the way I could file a tax return without waiving my rights would be to do it through an attorney such as himself. He suggested that I give to the attorney my power of attorney to file returns for me, and also that I give him the money for my taxes, which would be placed in the attorney's trust account. The attorney would then file the return and pay the IRS out of his trust fund. The attorney would, however, file the return with a code number on it known only to me and to him. He would not put my name and address on the tax return, but simply sign the return as the preparer, using my power of attorney.
Obviously, the IRS would then have to come to the attorney to ask him the name of the individual who was represented by the return. The attorney would stand on attorney-client privilege and refuse to identify me, thereby preserving my Fifth Amendment protected rights!
Well, even though it seemed like quite a bit of trouble if I were to file in this manner in order to still preserve my rights, I was pleased with Mr. Belli's answer to my question because he was so creative. I informed him that he had basically proven my point: there is definitely a Fifth Amendment problem if filing tax returns is required.
I informed Mr. Belli that he did not win the reward, however, because if the IRS tried to prosecute me criminally for "willful failure to file returns" (Section 7203 of the IR Code), or if the IRS proceeded civilly against me, in my defense I would ultimately have to put the attorney on the courtroom stand as my witness and have him testify that he had filed a return for me. Of course, if I had to have him so testify in order to defend myself, the IRS would be forcing me to waive my rights supposedly protected by the Fifth Amendment in order for the IRS to consider my return as filed. I encouraged Mr. Belli to sue me for the money in order to publicize my point, but he chose not to.
Another excellent criminal trial attorney from California, Mr. William Cohan, next applied for the reward. He explained that he felt one could file a return without waiving his Fifth Amendment protected rights by filing two returns. The first return would contain financial information only--no identifying information. The second return would contain the name and other identifying information, but indicate Fifth Amendment objections on each and every specific question concerning income and deductions. I agreed with Mr. Cohen that this approach would not require me to waive my Fifth Amendment protected rights when I mailed the returns, but if the IRS proceeded against me, I would have to testify in my defense that I had mailed returns containing, in toto, all the information required, and I would have to identify them and at that point I would be waiving my rights.
After six years, I am still offering the reward. One individual, a Mr. Charles Ostman, sued me in Federal Court in Seattle, Washington with an absurd theory of law, but the judge decided the case in my favor and even granted me my costs. See Ostman vs. Conklin, Civ. #C92-1371C; USDC Seattle, 1992. (The judge also referenced contract law in order to set aside Mr. Ostman's objection to me being the proper arbiter of the reward I offered.)
The point is that no one can answer my two questions: it is simply impossible for me or anyone else to file a tax return without waiving Fifth Amendment protected rights; and there simply is no statute or provision in the Internal Revenue Code that makes an individual liable to pay the income tax.
The second part of my reward involves showing me which statute makes me liable to pay an income tax. There are only two ways that an individual may be made liable and therefore legally owe an income tax. First, an individual may become liable by voluntarily filing a tax return; or an individual may become liable if the IRS files a return for him. However, law requires the IRS to follow definite and involved procedures if they decide to file a return for an individual who has not filed; if a knowledgeable person decides he wants to fight such action by the IRS, he can force the agency to expend a lot of time and energy following through with their assessment.
My Tenth Circuit Case
Beginning in 1985, it took me over seven years of thinking about the Fifth Amendment as it relates to the income tax to become absolutely convinced that the government has no legal way around the Fifth Amendment conflict with their alleged requirement to file 1040 tax returns. If Americans were more concerned about waiving their Fifth Amendment protected rights, the IRS would no longer be able to routinely use information on tax returns in criminal tax cases; nor would they be able to proceed civilly against individuals and later turn the case into one of criminal prosecution once they obtained enough information civilly to determine that the case might have criminal potential. As we have seen, law requires the IRS to warn the public that the agency may use the information criminally whenever they wish to, but most of us overlook this warning--strangely, the compliant individual is at much more risk in our convoluted system than the individual who stands on the constitutional protections of his rights. The only reason that the present hated tax system continues to work is because individuals continue to voluntarily waive their rights and file tax returns.
During my research, I discovered that the court system and the IRS are schizophrenic in their interpretation of this Fifth Amendment problem. I became bound and determined to figure out a way to raise the Fifth Amendment issue and to put the court in a position where it would have to come up with a decision that would make my point.
Years ago, when I started to criticize the IRS publicly, the IRS classified me as an illegal tax protester. I sued the IRS under the Privacy Act to get the classification removed. I lost in the Tenth Circuit Court of Appeals, but one judge did rule in my favor with an eloquent opinion that really put the IRS in its place. Nonetheless I was, by a vote of 2 to 1 of the Appeals Court panel, branded an illegal tax protester for the rest of my life. This was primarily because I had dared to criticize an agency that deserves criticizing.
Judge McKay dissented in my case, Conklin vs. IRS (an unpublished case, circa 1982) with his opinion from U.S. vs. Amon, 669 F.2d 1351 (1981) which follows:
McKAY, Circuit judge, (dissenting):
"...It makes clear that IRS activities with regard to tax protesters extend well beyond the manifestly permissible policy of using admissions of a crime against the criminal, to the suspect policy of punishing political protesters--or in other words, of punishing citizens for exercising a right which is front and center to the First Amendment. Indeed, if the objective of the IRS were only to prosecute the more serious or frequent violators of the tax laws, the word 'protester' would be irrelevant. As the trial court found, the object of the selectivity is to shut up the 'outspoken.'
"The test for determining whether a prosecution is unconstitutionally selective is two-pronged. To support a selective prosecution claim a defendant bears a heavy burden of establishing, at least prima facie (1) that he has been singled out for prosecution, and (2) that the selectivity for prosecution was invidious or in bad faith, and that it was based on such impermissible considerations as race, religion, or the desire to prevent or inhibit the exercise of such constitutional rights as free speech...
"...Here, the IRS declared (and the court believed) that it intended to select and silence outspoken 'tax protesters.' Thus, both the fact of selectivity and its motivation to silence the outspoken are proved by direct evidence. I find it impossible to believe that the