Misc RM 33    Misc reference material  Part 2

Reference Material - For Information Only!

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Living In A Free Society Imposes An Obligation On Every Adult Citizen To Know And Follow The Law.

I have been asked, on only one or two occasions, to advise a person whether or not that person should file a U.S. Individual Income Tax Return.  Paying a tax one does not owe is a matter of personal choice.  Since the Office of the Collector of Internal Revenue was abolished no officer of the United States exists that can give notice of a federal tax liability and make demand that a tax be paid.  Only a person attempting to gather evidence for the Internal Revenue Service would ask for advice whether or not to make a U.S. Individual Income Tax Return. My function as an attorney and counselor at law can only be to explain what the law is and to leave the client to make personal decisions based on my counseling and anything else the client wants to consider. 

I do not advise anyone to take any particular action.  I personally stopped filing U.S. Individual Income Tax Returns one hundred years after Congress imposed a duty to make returns on every citizen and resident of the United States of lawful age and with a minimum amount of taxable income.  I have made it a matter of public record that I have not filed a federal or state income tax return since 1993.  I, coincidently, stopped filing on the centennial of the enactment of the federal income tax law that was declared unconstitutional.   Congress imposed a duty on citizens and residents of the United States to make returns in the 1894 federal income tax law.

Congress has no power to impose duties on citizens of the several states and its power over federal incomes is limited to members of Congress and inferior federal judges.  Taxation is not something you pay because you lose an argument, so I make no attempt to present arguments in these opinion letters.  Instead, I present my opinion of what the relevant facts are.  Facts are infinitely more useful for finding truth.  For instance, it is a fact that members of Congress and the inferior federal judges have a duty to make federal income tax returns. 

If this was not accepted as fact, there would be no need for this opinion letter.  It is also a fact that members of Congress and the inferior federal judges are federal employees pursuant to §3401(c) Title 26 U.S.C.  The evident fact that members of Congress and inferior federal judges are employees with a duty to make a U.S. Individual Income Tax Return explains why many people believe all public and private employees have a legal duty to make tax returns. Only federal "employees" such as members of Congress and the inferior federal judges, who have taken oaths to obey federal law, must comply with federal laws and regulations.  Members of Congress and federal judges have duties with respect to the federal income tax law because of the oaths they have taken.  Any attempt to impose a legal duty to make an income return on a federal employee would result in an unconstitutional income tax.

To appreciate the importance of the imposition of a duty in the law, let us examine the duty of care in negligence.  The law of negligence imposes a legal obligation upon us to act in a reasonably prudent manner, when, for instance, we drive motor vehicles.  Violation of that duty of care will cause a liability for all bodily injuries and damages to real and personal property caused by our negligence.  Obligations imposed by administrative law, as when it is required that the vehicle driven be properly registered and that we be licensed to drive it, do not establish personal liability when only administrative law is violated.  The failure to obey an administrative regulation will not necessarily establish that the requisite duty of care was not employed.  The removal of the duty to make a return in the federal income tax laws after 1895 changed forever the tax to an indirect tax without any duty legal duty to make or file returns.

The 1952 abolition of the Office of the Collector and Deputy Collector also concluded any means by which the Bureau of Internal Revenue could continue to function as a governmental entity with some kind of governmental power.  The IRS Reorganization of 1952 is set out in §7804 Title 26 U.S.C.   The Office of the Collector and Deputy Collector was the heart and soul of the Bureau.  Not one person in the IRS had any authority to do anything except to ask that any self-acknowledged debt or tax liability be paid.  In 1953 the name of Bureau was changed to the Internal Revenue Service reflecting its loss of authority and relegation to a customer service entity. 

In 1972, the alcohol, tobacco and firearms branch of the IRS that enforced federal law in United States possessions was spun off as the Bureau of Alcohol, Tobacco and Firearms.   The abolition of all United States Officers except for the Commissioner of Internal Revenue and the Secretary of the Treasury left the Bureau without authority except as to employment duties.  The present claim that the federal tax system is based on voluntary compliance becomes more and more accurate as obligations are removed from Title 26 U.S.C.

Why is federal income taxation so complex?  Complexity sustains a voluntary tax because simplicity would reveal its optional nature for those not members of Congress or inferior federal judges.  For example, of the constituent parts of the federal income tax, the Sixteenth Amendment is the linchpin of the tax, yet the Amendment does not create the power to tax incomes.   Every branch of government has inherent authority to maintain its independence.  The simplicity of the Sixteenth Amendment is that it merely does what it was supposed to do: permit indirect taxes on the incomes over which Congress has legislative power.  The complexity of the Amendment is the assumption that it permits an unapportioned direct tax on incomes over which Congress has no legislative power. 

The complexity, as well as the validity, of the federal income tax can be sustained because all taxation is consensual taxation.  Even before the American colonies declared their independence, the concept of government by the consent of the governed was widely accepted.  Forced or mandatory taxation was completely contrary to the American concept of the freedom of English people. That sentiment was presented in Article 3 of the 1765 Declaration of Rights issued by the Congress after Parliament's passage of the Stamp Acts: "That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them but with their own consent, given personally, or by their representatives." Eleven years later Americans in the Declaration of Independence claimed "imposing Taxes on us without our Consent" was one of the reasons sufficient to justify a separation from the king of Great Britain and an end to his rule. 

Consensual voluntary taxation remains the law for the sovereign and independent states that emerged from the 1783 Treaty of Paris and for the United States after ratification of the Constitution.  The current complexity of federal taxation is intended to obscure the completely consensual nature of taxation whenever the people rule themselves.

An Introduction To Taxation

The beginning of any thoughtful discussion of the limits to federal income taxation ought to commence at a point where the parties to the discussion do not become mired in a pointless discussion of the semantics of the words used in the Constitution.  That document sets out the broad outlines of the federal government and is not suited to a study of its constituent parts until the whole is understood.  The federal government is a government of sovereign independent states that were first recognized internationally as such in the Treaty of Paris with Great Britain signed in Paris September 3, 1783.  The Articles of Confederation of 1777 created a "Confederation and perpetual Union between the states" completed when the final state, Maryland consented on March 1, 1781.  

The Constitution ratified in 1789 sought to create a more perfect Union by creating an administration for a government that would exercise only the legislative power granted in the Constitution.  That document grants only legislative power to Congress, so no matter how the Sixteenth Amendment is interpreted, it cannot grant an unalienable right to impose direct taxes on themselves, since the power of direct taxation is not a legislative power.  The requirement in Article I, Section 9 that, "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken," demonstrated both an obsessive interest in containing taxation and limited tax knowledge and experience.  The Framers of the Constitution cannot be faulted for their limited acquaintance with self-government direct taxation they did not write the Sixteenth Amendment.

The meanings of the words used in the Constitution are best found in a good dictionary. Random House Dictionary of the English Language defines indirect tax as "a tax levied indirectly, as one levied on commodities before they reach the consumer but ultimately paid by the consumer as part of the market price. (1795-1805) The same dictionary defines a direct tax as, "Govt. a tax exacted directly from the persons who will bear the burden of it (without reimbursement to them at the expense of others), as a poll tax, general property tax, or income tax. (1780-90, Amer.)"  The same dictionary defines the word tax and places it year of origin as 1250.  Between the origin of the word tax and the use of the terms direct and indirect taxes, government by the consent of the governed emerged, but its impact on taxation has not been public ally recognized. 

In self-governing societies, the people consent to taxation when they devise a plan for taxation of themselves and their property direct taxation.  The people also consent to taxation when they elect representatives to a legislature and those representatives enact laws that impose taxes. The subjects of legislation are also the subjects of indirect taxation, but the people and their property can never be taxed directly by elected representatives.  Congress made such an attempt in the Wilson-Gorman Act of 1894.

The 1894 federal income tax was found to be an unconstitutional unapportioned direct tax in the Income Tax Cases within a year after the tax was enacted.   The Income Tax Cases, Pollock v. Farmer's Loan & Trust, 157 U.S. 429 (1895) and Pollock v. Farmer's Loan & Trust, 158 U.S. 601 (1895) declared the 1894 federal income tax unconstitutional. Direct taxes are those the people impose upon themselves outside the legislative power that is how they come to be defined as they are above.  The state legislature cannot and does not impose a direct tax it merely asks for a gift of direct taxes. 

This is what was conferred on the Congress by the Constitution the power to ask for an amount of direct taxes apportioned to the several states.  Indirect taxes are the special province of the people's legislators, but such taxes are limited to the subjects of federal legislation and the people of the several states are not proper subjects of legislation.  The power of direct taxation cannot be granted to the legislative branch of government because that would destroy the basis of the republican form of government guaranteed by the Constitution to the people of the several states.

The successful conclusion of the American Revolution transformed taxation into an instrument of a now self-governing people.  Freed from English rule the American people's conception of consensual taxation could be fully realized.  The 1765 Declaration of Rights confirmed that taxes were gifts to the British king and now without the king all taxes were gifts to government only for public purposes.  Most important, without a king the people cease to be the subjects of government.  The people of the United States are the collective sovereigns there and the power of the Congress of the United States is limited to the subjects of legislation enumerated in the Constitution and the individual members of the legislative branch. 

Members of the House of Representatives represent the states and not the people of the states.  The two senators from each state clearly do not represent the people of the state but the political entity admitted to the Union.  Legislation enacted by Congress is going to apply to states unless the subject of legislation is to be the individuals over which Congress has legislative power.  Unless you are a member of Congress or an inferior federal judge, you have no legal duty to make a return, because the legislative reach of Congress does not extend to you as a citizen of one of the several states.  It is the lack of a legal duty to make a return that frees you and others from any obligation to make a federal income tax return and pay any federal or state income tax.

The Sixteenth Amendment

President William Howard Taft asked Congress in a written address, reported on pages 3344-3345, June 16, 1909 in the Senate Congressional Record, for an amendment that would grant Congress the power to tax the national government.  The 16th Amendment does just that because the federal income tax serves the independence of the legislative branch.  The Constitution does not create a national government but the Congress can claim that title when it acts to secure its separation and independence from the other two branches of the federal government.  The Sixteenth Amendment grants to Congress the power to "lay and collect taxes on incomes, from whatever source derived."  The comma between "incomes" and "from whatever source derived" allows Congress to collect all the taxes that are voluntarily determined by members of the national government and anyone else who wants to voluntarily pay a tax. 

Since it was contemplated that individuals would voluntarily make federal income tax returns on income for real and personal property the prepositional phrases: "without apportionment among the several States, and without regard to any census or enumeration" were added to make it clear that the income tax was being determined without the imposition of a duty to make a return.  The federal income tax of 1913 was, in fact, imposed without a duty to make a return to the Collector of Internal Revenue.  The 1913 federal income tax and all subsequent internal revenue acts have included no legal duty to make a return.  Income tax returns are voluntarily made or they are required because of an employment or political relationship members of Congress or the inferior federal judges have with the federal government.

A basic flaw in reasoning is committed when it is declared that the Sixteenth Amendment permitted the federal income tax, when the tax enacted after the Amendment is a different tax.  The direct federal income tax of the 1894 Act imposed a duty on citizens and residents of the United States to make returns.  All direct taxes impose a duty to make a return or list of the property to be taxed to be made and filed.  The duty to make a return or list of the property to be taxed is an essential feature of all direct taxes.    The duty to make a return or list of all taxable income was lifted in its entirety from the real property tax statutes familiar to all citizens of the several states. 

State direct taxes on real and personal property require laws that impose penalties for not discharging a duty to disclose taxable property.  Without a list or roll of taxable property the elected assessor cannot make an accurate assessment of the taxable property.   A mandatory income tax on all incomes except those that are exempt is possible in the United Kingdom but not in America.  A direct tax on income is lawful in England because the government there is based on a monarchy where the subjects of the tax are, also, the subjects of government.  Our current income tax is not mandatory and it is lawful for that reason.

The Sixteenth Amendment does not grant Congress the power to assess a tax on incomes in the same way elected state assessors assess taxable property of persons in the several states.  According to the Amendment the Congress may only lay or impose taxes on incomes by way of legislation, as indirect taxes, because apportionment will not be used to lay the tax nor will it be considered in determining whether or not the source of the income taxed is from property.  The reader is reminded that apportionment at the national level is apportionment to the states.  The Constitution refers only to apportionment of direct taxes to the several states and representation in Congress.

The Sixteenth Amendment does not grant to Congress any additional legislative authority to impose a direct income tax on any people of the United States, because the power   of direct taxation is a power of the people of the several states that cannot be delegated to any legislature.   The Sixteenth Amendment grants to Congress the power to "to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration," which are indirect taxes.  

A "tax on income" is a direct tax when a duty is imposed to make a list or return of all taxable income.  Taxes on incomes is always an indirect tax.  The power "to lay and collect taxes on incomes" is an inherent power all legislatures have over those incomes subject to its legislation.  The federal income tax is, therefore, at the very least a tax on the gross incomes of the members of Congress and the inferior federal judges but the tax excludes no volunteers.  Item number 1 of the Gross income section, §61 Title 26 U.S.C. is the compensation for services of members of the legislative branch.

The Constitution of the United States still unequivocally mandates that all direct taxes imposed by Congress must be apportioned to the several states according to population.  Past Congresses could only enact legislation on the governments of the states of the Union, so it is unlikely that during the early generations following the ratification of the Constitution any attempt would be made to tax directly the people of the several states.    This letter explains how the modern income tax is made possible by the removal of the duty to make a return.  Removal of the duty to make a return makes for a voluntary income tax except as to those with an independent duty to make returns and pay taxes.  The individuals that have a duty to obey federal income tax are members of Congress and the inferior federal judges.

Who Is Liable For Federal Internal Revenue?

There are liabilities in the IRC, but they do not arise from a legal duty to make or file a U.S. Individual Income Tax Return.  In my opinion, members of Congress and the inferior federal judges have a duty to make U.S. Individual Income Tax Returns, but they have no personal liability for the amount of the tax shown on the return.  Any person that makes and files a return becomes a taxpayer by voluntarily subjecting himself to the applicable internal revenue law.  An obligation, duty or liability may be created contractually.  For example, if you are an employer and one of your employees asks you to withhold wages and send them to the IRS, you have imposed upon yourself the legal obligation to withhold and pay over to the IRS the amount actually withheld. 

Until the withheld funds are actually delivered into the United States Treasury, the withheld wages are still the property of the volunteering employee and the employer is liable to that employee for the withheld amount.  Persons and other entities that have obtained licenses for federal excises are liable for collected taxes until they are paid into the United States Treasury.  A member of Congress or an inferior federal judge who has a legal duty to make and file a return probably has no liability for an internal revenue amount.

Certain federal employees may have a job duty to make physical "returns" of wages withheld, from other federal employees who have volunteered to have wages deducted and withheld, to the United States Treasury.  Federal employers are federal employees whose job duties are to be federal employers.  Federal employment law and federal employment tax law is written to apply to these "professional federal employers."  The W-4 when properly executed is a contract between federal employees and any others who want to use the form. Withheld wages are the property of the wage earner until those withheld wages are paid into the United States Treasury.  It is this retained property right and the contractual obligation of the employer to pay withheld wages into the United States Treasury that makes a federal employer liable for the tax.  Consensual taxation must be studied, in the context of federal employment and excise tax administration, in order to understand how those without a duty to make returns can be liable for a tax.

Voluntary Taxation Government By The Consent Of The Governed

This opinion letter will provide you with sufficient facts to establish that you are not part of any group that would logically contain members of Congress and the inferior federal judges.    My explanation of the federal income tax law leaves it intact.  I do not wish to destroy anything except ignorance.  Members of Congress and the inferior federal judges are not forced into those offices.  They consent by standing for election and by accepting a presidential appointment with the advice and consent of the Senate.  Even if you establish that you have no legal duty to make and file a tax return, you may still want to make and file a tax return.  There is nothing in our law that prevents you from consenting to pay any amount as a tax.  All our organic law establishes is the right of the people to pay any amount as a tax.  Administrative law imposes certain requirements on those in government with respect to certain obligation including taxation.

Congress in the IRS Restructuring and Reform Act of 1998, Pub. L. 105-206, title III, Section 3707, July 22, 1998, 112 Stat. 778, codified as a note to Section 6651, Title 26 U.S.C. clarified that persons that do not make federal income tax returns are not illegal tax protesters.  Since there is no lawful duty to make a U.S. Individual Income Tax Return, all such returns are voluntary except those required of members of Congress and the inferior federal judges.  All persons employed as Internal Revenue Service agents, special agents, Revenue Officers, Criminal Investigation Agents and the like are, of course, employees.  An employee performs specified duties for an employer but has no authority over others not also employed by the employer.  An IRS employee cannot force a citizen to make a U.S. Individual Income Tax Return and cannot force the payment of any tax.  The post 1998 IRS only assists "customers" to pay what they "owe" according to their own determination.  Such determinations are "statutory" in that only the "taxpayer" can determine the amount owed. . . . . .

Direct Taxes

Imposing a duty to make a return or list of income or property creates a direct tax.  This was not part of the decisions in the income tax cases: Pollock v. Farmer's Loan & Trust, 157 U.S. 429 (1895) and Pollock v. Farmer's Loan & Trust, 158 U.S. 601 (1895) but a search and examination of old property tax law in your own state will reveal that all property tax laws imposed a penalty for not discharging the duty of a property owner to disclose the property owned to the assessor so all taxable property could be assessed.  A complete disclosure of the property that was to be assessed is a fundamental basis of all property taxes.

All decisions of the United States Supreme Court since 1916, with one exception, consistently hold that the federal income tax is an indirect tax.  In only one decision has the United States Supreme Court stated that the federal income tax is a direct tax, United States v. Wells Fargo Bank et al, 485 US 351, 357 (1988), 99L Ed 2d 368, 377, 108 S Ct 546.   The decision establishes the legal community's failure to comprehend the fundamental basis of taxation in self-governing societies.  For 75 years the Supreme Court had carefully avoided calling the federal income tax a direct tax, and then 8 members of the Court slipped up and joined in a decision that states that the federal income tax is a direct tax. 

Apportionment of direct taxes to the states is required by the Constitution because apportionment is a judicial power conferred by the people not a ministerial one.  The indirect taxes consist of duties, imposts and excises.  The unquestioned constitutional requirement that all direct taxes be apportioned to the several states was the Framer's way of containing one of the forms of taxation, an admittedly difficult subject.   Only government mandated tax ignorance has permitted the outrageous idea that the Sixteenth Amendment sanctions an unapportioned direct tax.

The duty to assess all taxable property that is the specific office of an assessor is granted by the people, because it is a power that cannot be granted to the legislature.  The legislature has the discretion of asking for the amount of revenue to be collected.  The power to apportion a tax among themselves and to property is a power unique to the people of the states.  This is one of the reserved powers that can only be conferred upon another by popular election.  The Constitution recognizes this by requiring all direct taxes to be apportioned to the states rather than to the people.

There is no possible way that a national direct tax can be apportioned to the people of the several states because the Constitution of the United States does not provide that the people can elect directly any one person to a national office.  An unapportioned direct tax is an oxymoron.  A direct tax comes into being by the process of apportionment.  Direct taxes are apportioned to the subject of direct taxation.  The subjects of direct taxation are people or property within the physical boundaries of the state of the citizens doing the taxing.  A capitation or head tax is a direct tax because every person subject to the tax pays the same amount as any other person.  Poll taxes, which were forbidden in federal elections by the 24^th Amendment, are direct because they are equal and uniform on every person who is to vote in an election. 

Real and personal property are direct taxes and have been collected as such in America since the founding of the first governments.  Only the people's elected assessor can apportion a direct tax on property or by capitation.  It must be remembered that the President of the United States is not elected by popular vote. The Electoral College not the people of the states elects the President of the United States of America.   The chief executive or chief magistrate, as the office is sometimes called, is elected by an Electoral College determined by the several states.  This selection process is an essential feature of the Constitution meant to safeguard the liberty of the people of the states and to maintain the separation and balance of powers between the departments of the federal government.

It must, also, be remembered that the "compensation for services" of the executive and judicial branches of the national government are protected from taxation by the Constitution and the President has taken an oath to "preserve, protect and defend the Constitution."    Any tax on item number one in §61 of Title 26 U.S.C. must be voluntary or the federal income tax would be unconstitutional as an unapportioned direct tax.   The Sixteenth Amendment does not create an impossible tax: an unapportioned direct tax.  Apportionment it must be remembered makes a tax direct and if a tax is not apportioned it is an indirect tax.   Once an individual volunteers to pay an income tax by making and filing a return that person can be required to comply with the administrative law that governs the taxpayers and the employees that administer the tax.

The 1894 Federal Income Tax Wilson-Gorman Tariff Act

After a close examination of the 8 page, 1894 federal income tax attached to this letter; there should be no question in the mind of the reader that it was the imposition of a duty to disclose taxable income that produced the unconstitutional unapportioned direct tax. The reader should also have a clearer understanding of taxation in a free society. The 8-page 1894 income tax evolved from an unconstitutional unapportioned direct tax into a voluntary tax constitutional of "9,500 pages of gibberish" by the simple deletion of the duty to make and file an income tax return.  Why is it that white people are attacking their own creation?  The recent Jayson Blair scandal at the New York Times may provide an answer.   The print media has always been in bed with the federal government, so between these two powers the truth has never had much of a chance in America.  

I hope that I have shown in these pages that the truth can be found with a little effort when you believe nothing of what you read in the papers and you sincerely believe that the truth will make you free.  Blair is proud that he was able to fool the power structure at the Times, which proves that white people in power cannot bear to tell the truth if they fear the truth might diminish that power.  Blair has left the Times, but at least two reporters remain that continue to write without reporting all the truth about federal income taxation: David Cay Johnston and Steven R. Weisman.

Decisions of the United States Supreme Court prior to 1895 had declared the Civil War federal income taxes to be indirect.  It is the exercise of legislative authority that creates indirect taxes.  Congress must, of course, have legislative authority over its own members, so individual personal federal income taxes will always apply to members of Congress.  All but a handful of the inferior federal judges are members of the legislative branch, so federal income taxes will always apply to them.

Taxes are direct when the duty to make the list or return disclosing the property subject to taxation is imposed on citizens and residents. Those taxes are always imposed on the state level because only at that level can the people elect local assessors and tax collectors necessary to apportion direct taxes.  The Constitution permits Congress to ask for revenues from such a tax in the same way state legislatures ask the people for revenues from direct taxes.  Self-government consists of the exercise of two powers: the power to self-impose direct taxes on property or on people at so much a head and the power to legislate.  Congress has no power to create legislation for the people of the several states.

The decision of the Court in Pollock v. Farmer's Loan & Trust, 157 U.S. 429 (1895) and Pollock v. Farmer's Loan & Trust, 158 U.S. 601 (1895) has clearly established that imposition of a duty to make a return listing taxable income creates direct taxes on incomes.  The decision of the Court clearly requires that Congress impose a direct tax on the several states as political entities and not on the people of the United States.  Citizens of the several states are not made subjects of legislation for the purpose of direct taxation, because direct taxes are not imposed by legislation. The power of the people to subject their property and themselves to direct taxation is not achieved by exercise of their legislative power.  Therefore, failure or refusal to pay a direct tax cannot result in a loss of personal freedom; only that amount of property necessary to pay the direct tax may be taken to satisfy the amount of the tax.

When the Supreme Court declared the 1894 federal income tax unconstitutional all other federal taxes were unaffected by the court's decision and the Office of the Collector of Internal Revenue continued to collect those in the same old ways.  In 1909 President William Howard Taft suggested that there was no need to amend the Constitution to provide for a voluntary tax but it was amended anyway in 1913 to permit the claim to be made that an unapportioned federal income tax was now possible.  The amendment that he asked for would permit a tax on the national government.   The 16th Amendment that was claimed to have been ratified provided for a voluntary tax on the members of the national government as well as on any other person who made and filed an income tax return. The fact that the tax had to be voluntary in order to be lawful was a closely guarded secret that has left intact the Court's decision in the Income
Tax Cases:

Our conclusions may therefore be summed up as follows:

First. We adhere to the opinion already announced,  that, taxes on real estate being indisputably direct taxes, taxes on the rents or income of real estate are equally direct taxes. 

Second. We are of opinion that taxes on personal property, or on the income of personal property, are likewise direct taxes. 

Third. The tax imposed by sections 27 to 37, inclusive, of the act of 1894, so far as it falls on the income of real estate, and of personal property, being a direct tax, within the meaning of the constitution, and therefore unconstitutional and void, because not apportioned according to representation, all those sections, constituting one entire scheme of taxation, are necessarily invalid. 
Pollock v. Farmer's Loan & Trust, 158 U.S. 601, 637 (1895).

Today's federal income tax is legal and constitutional because only members of Congress and the inferior federal judges have to make returns.  Tax attorneys do not read and understand unconstitutional federal income tax laws because they are only interested in current valid tax laws.  These mainstream lawyers have no professional interest in establishing that the tax is applicable to a small easily identified group.  The 1894 tax imposed a duty to make a return. Section 29 of the 1894 Act specifically imposed a "duty of all persons of lawful age having an income of more than three thousand five hundred dollars to make and render a list or return to the collector...of the district in which they reside."  The imposition of a duty on the adult recipients of sufficient income for a "taxable year" made the federal income tax a compulsory direct tax.  Current federal income tax law requires a person liable for a tax to make a return.  Section 29 imposed a duty on every person of legal age with sufficient income to make a return to the Collector of Internal Revenue.  The imposition of a duty to make a return disclosing income from property so it could be taxed created a direct tax. 

The idea that a tax is direct or indirect depending on the person that is to pay it is intentionally misleading.  Tax attorneys and everyone else, who know even less about law and taxation, assume liability for the federal income tax. However, it is only through an understanding of the 1894 income tax that will give us an awareness that the income tax referred to the Sixteenth Amendment is not the same kind of income tax that was enacted in 1894.

The 1991 decision in Cheek v. United States, 498 U.S.192 (1991) makes it impossible to violate any part of the federal income tax law if one is aware of the absence of a legal duty to make a return.  After 1894, no federal income tax law imposes a duty to make a return on anyone not a member of Congress or an inferior federal judge.  Every property tax in every state contains the imposition of a legal duty to make a list or return of taxable property.

Every government must have a geographical basis.  The government of the United States is a federal government and that government exists everywhere there is federal territory. The political United States consists of the seat of government, Washington D.C., the territories and the states. The states, however, consist of the political entities that make up the confederation The United States of America and the states that are owned by the United States.  The independent and sovereign states of the Union are not governed by the federal government. 

It should be evident to all that the Constitution is written as if to say: "the states of the Union being the basis of this Union, the federal government shall only have those powers that are specifically named here.  Of course, what else could the first sentence of the Constitution mean "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."   The federal tax law required the President to divide the country into districts for the collection of federal taxes.  These revenue districts were overlaid on the state's boundaries but they comprised only the federal areas within the exterior boundaries of the districts.

Why You Do Not Have A Duty To Make A Tax Return A Summary Of The Significance Of The 1894 Federal Income Tax On Your Federal Tax Obligation

Political power in America including the power of taxation is based on the concept of government by the consent of the governed.  The basis of American political power is the sovereignty of the people of the several states.  The Declaration of Independence stated that the purpose of government was to secure rights, which included life, liberty and the pursuit of happiness.  It was never the intention of the people of the states that the creation of the new federal government was not to cost them their freedom and they did not intend to create an uncontrollable government over themselves.  The place where the sovereignty and freedom of the people is rooted is also called the United States.  The first of these states were the English colonies.  These colonies formed a confederation called the United States of America. 

The Articles of Confederation that sought to create a union of sovereign and independent states sufficiently formidable to retain newly won freedoms against the world's foreign powers, but the Confederation proved inadequate even as new states joined the existing states.  The people ratified the Constitution to create a new federal government that would exercise some of the powers of the governments of the states united to form the United States of America.  A strong chief executive known as the President of the United States of America and a Supreme Court of the United States were additions to the new federal government.  The Congress of the United States of America that formerly exercised legislative and executive powers under the Articles of Confederation was vested only with the legislative powers granted in the Constitution.

In the several states, the people tax themselves using direct taxes and their elected representatives create indirect taxes by exercising the people's legislative power. The stated aim of the new Constitution and the federal government that it created was "to form a more perfect Union." In keeping with the stated purpose of the Constitution, the federal government is a government exercising state governmental powers between and among the states of the Union. 

The power to impose direct taxes found in the Constitution is only the power to ask for the revenue from such a tax. The duty that was imposed in the 1894 federal income tax law and that is easily found in Section 29 created a direct tax.  In 1895, it was the Section 29 "duty to make a return" that turned the federal income tax into an unsuccessful direct tax.   By removing the "duty to make a return" the unsuccessful compulsory direct income tax became a wildly productive federal income tax collected by "voluntary compliance." 

The duty to make a return made the 1894 federal income tax an unapportioned direct tax because the duty to make and file a return was imposed on citizens and residents rather than on the governments of the several states.  After the United States Supreme Court decided that the 1894 income tax was unconstitutional, a duty to make a return is never again imposed on another citizen or resident of the several states.  The Sixteenth Amendment affirms the power of Congress to impose "taxes on incomes," which are indirect taxes on the incomes over which it has always had legislative power: incomes of members of Congress and the inferior federal judges.  Your income is outside the legislative power of Congress, so you, therefore, have no legal duty to make a return.

Is it possible for you to have a federal income tax liability?  The federal income tax law may impose a requirement upon a person to make a return of withheld wages, if as an employer with a federal identification number, that person accepts wages from an employee for the payment of volunteered individual income taxes.   These are the types of liabilities that will be found in the IRC and no others.

Are you a federal income taxpayer?  The Code defines "taxpayer" in two places:

§1313(b) Notwithstanding section 7701(a)(14), the term "taxpayer" means any person subject to a tax under the applicable revenue law.

§7701(a)(14) The term "taxpayer" means any person subject to any internal revenue tax.

The IRS Restructuring and Reform Act of 1998, Pub. L. 105-206, title III, Section 3707, July 22, 1998, 112 Stat. 778, codified as a note to Section 6651, Title 26 U.S.C. makes the intent of Congress clear: persons that do not file federal income tax returns are nonfilers not "illegal tax protesters."  Any individual that makes and files a U.S. Individual Income Tax Return is a taxpayer.  A member of Congress or an inferior federal judge is taxpayer because of a legal duty to make and file a return.  A person or individual that has collected a tax may be required to make a return of the tax, a tax return or both.  Any person that voluntarily subjects himself or herself to "any internal revenue tax" or to "a tax under the applicable revenue law" is a taxpayer.

Very truly yours,    Dr. Eduardo M. Rivera

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