The IRS Perspective on Frivolous Tax Returns

By Jim W. Norman, CPA

jim@njcocpa.com

 

 

Your parents offer you the choice of a switch or paddle. You “voluntarily” choose switch. Did you have the choice of avoiding the spanking? Not likely. Such is “voluntary compliance” with the income tax code.

 

Over the years tax protesters have made many counter arguments as to what “voluntary” means or whether you do in fact have to file a tax return.  The IRS calls these “frivolous tax arguments” and puts them into six different categories.

 

First is the biggie: the voluntary nature of the Federal income tax system. Some proponents of this argument say that the filing of a tax return and payment of taxes is voluntary. In a nutshell, “voluntary compliance” simply means that the IRS will let you determine how much you owe in taxes, following the law, by completing and filing the appropriate tax return. That is as opposed to them just sending you a bill for taxes without your input (which they often do if you don’t comply). This argument has been all the way to the Supreme Court and most other courts along the way.   You must file a tax return when required.

 

OK then, they argue, payment of tax is voluntary. Also well litigated, the requirement to pay taxes is not voluntary and is clearly set forth in the Internal Revenue Code, which imposes a tax on the taxable income of individuals, estates, and trust, as well as corporations. Other rules of the Code detail the requirement that the taxpayer submit payment with their returns.  You must pay your taxes or face late payment penalties.

 

The second category relates to arguments about income.   Wages, tips and other compensation received for personal services are not income protesters argue.  For Federal income tax purposes, “Gross Income” is defined by Code section 61 and means all income from whatever source derived. It specifically includes compensation for services.  If the Code doesn’t exempt an item, it is considered income.

 

Next in the income argument is that only foreign-source income is taxable. This argument says Federal income taxes are really excise taxes imposed only on nonresident aliens and foreign corporations for the privilege of receiving income from US sources.  That assertion is generally believed to be caused by a misreading of various Code sections and their regulations.  The law is still Code section 61, all income from all sources not specifically excluded. 

 

Falling into category three are various arguments about who is a citizen of the United States, that the United States consists only of the District of Columbia and Federal territories, or that a taxpayer is not a “person” as defined by the Internal Revenue Code.  The fourteenth amendment pretty clearly defines a citizen. So, claims that individuals are not citizens of the US -- but rather citizens of their state -- have been uniformly rejected by the courts.  Similarly, most elementary school students know what the “United States” is and the courts uniformly reject this argument that the states are not included under the laws.  Further, if you don’t know if you’re an “individual” then you probably don’t know what “is” is either.

 

The fourth category contains constitutional arguments such as the contention that the Federal income taxes constitute a taking of property without due process of law, violating the Fifth Amendment.  This one did make it to the Supreme Court, but no, this won’t work either.  “But Judge,” you might say, “if I file that return it violates my Fifth Amendment right against self-incrimination.” The courts have rejected that argument saying, “The failure to comply with the filing and reporting requirements of the Federal tax laws will not be excused based on blanket assertions of the constitutional privilege against compelled self-incrimination under the Fifth Amendment.”

 

Not having any luck with the Fifth Amendment, protesters turn to the Thirteenth Amendment and claim that income tax compliance is “involuntary servitude.” The Court of Appeals rejected this argument, saying, “if the requirements of the tax laws were to be classed as servitude, they would not be the kind of involuntary servitude referred to in the Thirteenth Amendment.”

 

Well then how about the Sixteenth Amendment that provided for the income tax in 1913? Was it legally ratified? Does it really authorize a direct Federal income tax on US citizens? Succinctly, yes and yes.  This argument continues to survive over time because protesters mistakenly believe that the courts have refused to address this issue.  Not true.  The Supreme Court addressed both issues and upheld the constitutionality of the income tax laws in 1916.

 

Category five is where patently fictional claims come in.  All examples of unfounded tax folklore, these arguments go like this: the IRS is not an agency of the United States; taxpayers are not required to file a return because instructions do not display the OMB number required by the Paperwork Reduction Act; African Americans can claim a special tax credit as reparations for slavery and other oppressive treatment; and taxpayers are entitled to a refund of the Social Security taxes paid over a lifetime.  None are true; none work.

 

And finally, the last category involves “untaxing” packages or trusts.  Advocates of this idea believe that an “untaxing” package or trust provides a way of legally and permanently “untaxing” oneself so that a person would no longer be required to file tax returns and pay taxes.  Promoters who sell such tax evasion plans and supposedly teach individuals how to remove themselves from the tax system rely on many of the above-described frivolous arguments.  Promoters of these types of schemes as well as willful taxpayers have been subjected to criminal penalties for their actions.  There is no such thing as an “untaxing” process.

 

The Internal Revenue Code provides for a $500 penalty against any individual who files a frivolous income tax return.  The Code also allows courts to impose a penalty of up to $25,000 when they come to any of three conclusions:  a taxpayer instituted a proceeding primarily for delay, a position is frivolous or groundless, or a taxpayer unreasonably failed to pursue administrative remedies. Individuals that run these unlawful plans to the extreme may face other civil and criminal penalties.

So be wise, file your return when required. The switch or paddle is up to you.

 

Jim W. Norman, CPA is a principal with Norman, Johnson & Co., PA, a Spartanburg Certified Public Accounting firm.  This column is intended to provide you with an informative summary of the subject matter covered.  You should consult with your tax advisor for details and assistance in applying this general information to your specific situation. ( www.NormanJohnsonCPA.com)

 

 

 

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