Case NO.: 08-12402
UNITED STATES CIRCUIT COURT
FOR THE ELEVENTH CIRCUIT
Amicus Curiae Brief
on Failure To
File
& Liability For
Income Tax
District Court Case No.: _______________
Appellee
v.
Wesley Snipes,
Defendant, Appellant
On Appeal From
The District Court
_____________________
TAble of ContenTS
Table of Constitutional
Authorities
Amicus Curiae Brief On Failure
to File,
The Constitution and The 16th
Amendment
An Indirect Tariff Collected At the
Source
Withholding of Tax At the Source
Cases
American Tobacco Co. v. Patterson.......................................................................................... 20
Boyd v. United States,................................................................................................................ 31
Brushaber v. Union Pacific R.R................................................................................. 6, 10, 13, 14
Haley v. Ohio,............................................................................................................................. 27
Pollock v. Farmer’s Loan & Trust Co................................................................................. passim
Stanton v. Baltic Mining Co............................................................................................. 7, 12, 13
Stumpf v. C.I.R............................................................................................................................. 5
U.S. v
Goldenberg, et al............................................................................................................. 25
United States v. Collins................................................................................................................ 5
Section Page
Statutes
§ 1441......................................................................................................................................... 17
§ 1442......................................................................................................................................... 17
§ 1443......................................................................................................................................... 18
§ 1461......................................................................................................................................... 19
§ 1463......................................................................................................................................... 23
§ 3403......................................................................................................................................... 20
§ 7701......................................................................................................................................... 15
Table of Constitutional Authorities
Constitutional Provisions
16th Amendment.......................................................................................................................... 11
Article I, Section 2, Clause 3.......................................................................................................... 6
Article I, Section 8, Clause 1........................................................................................................ 11
Article I, Section 9, Clause 4.......................................................................................................... 6
UNITED STATES CIRCUIT COURT
FOR THE 11th CIRCUIT
|
Appellee v. Wesley
Snipes, Defendant,
Appellant |
CASE
NO.: _______ Amicus Curiae Brief On Failure To File & Liability For Income Tax |
1) Defendant Snipes has been improperly and erroneously convicted of the three misdemeanor failure to file charges in the trial in the District court. The prosecution failed its duty to document for the jury during the trial, with evidence or by testimony, each and every required element of its case necessary to secure a proper conviction.
2) The prosecution cannot secure a legitimate conviction by presenting a case that does not actually document during the trial a statutory or regulatory requirement that it is alleged the defendant has failed. It is improper for the court to allow the jury to assume such required elements of the case exist in the law, when the prosecution never established such alleged requirements as legal facts during the trial.
3) An individual cannot be properly convicted of a “failure to file” charge unless the jury is actually shown the specific statutory requirements that it is alleged the Defendant has failed, provided together with an explanation of why and how those statutes are properly made applicable to the Defendant. Defendant Snipes has been wrongfully assumed by the jury and the court to be liable, or made liable by the statutes, for the payment of an income tax.
4) The government attorneys improperly left it to the jury to assume that liability for tax existed under the statutes, where none can be shown to exist; and to subsequently assume that a return was required to be made to satisfy that liability, where no statutory requirement can be shown to be applicable to the Defendant; and to assume that Form 1040 was the specific required “return”, when no such actual requirement applicable to Defendant Snipes can be shown in the law for the years in question, and where the law actually shows a different return as being the identified “required” return for the years in question. This conviction is therefore, improperly secured because of those erroneous assumptions that the jury was improperly allowed by the court to make.
5) It was never demonstrated during trial that Defendant Snipes is indeed even a person who is liable by statute for the payment of the income tax. This element of the case, necessary to secure a proper conviction, was not presented as evidence during the trial and, based on the testimonial transcripts of this trial, could only have been improperly assumed by the jury to exist. Assumptions made by a jury are not a proper dejure basis upon which to found or secure a legal conviction.
6) The
16th Amendment to the Constitution of the United States of America,
adopted in 1913, together with the income tax provisions of the Underwood
Simmons tariff act of Oct. 3, 1913, the constitutional basis and legal foundation
for our current income tax system, are apparently the two most misunderstood
pieces of legislation in human history.
7) The United States government asserts that in cases like Stumpf v. C.I.R. (1989), from the 9th Circuit, and United States v. Collins (1991), from the 10th Circuit, where the circuit court justices cited Brushaber v. Union Pac. R.R. Co., 240 U.S. 1, 12-19 (1916), and wrote in those decisions that the United States Supreme Court has recognized that the;
"Sixteenth Amendment authorizes
a direct nonapportioned tax upon United States citizens throughout the nation,
not just in federal enclaves". United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990),
cert. denied, 500 U.S. 920 (1991)
and;
“The sixteenth amendment gives Congress the power to impose an unapportioned direct tax,…” Stumpf v. C.I.R., 865, F.2d 1271 (1989)
8) However, this reading of the Brushaber decision by the 9th and 10th Circuit courts is very obviously erroneous. The Supreme Court’s decision taken in the Brushaber case absolutely did not say that the 16th Amendment authorizes a direct non-apportioned tax. That ruling would have engineered within the Constitution a direct and inherent conflict with pre-existing, un-repealed and un-amended Article I clauses that prohibit direct taxation of the people unless laid in proportion to the Census under;
Article I, Section 9, Clause 4
"No capitation or other direct
tax shall be laid, unless in proportion to the Census or Enumeration herein
before directed to be taken."
and apportioned to the states for
collection under;
Article
I, Section 2, Clause 3
"Representatives and direct taxes
shall be apportioned among the several states which may be included in this
union, according to their respective numbers..."
9) In order to preserve the integrity of the Constitution itself, and the force of law in these two original provisions of it, the Court actually states in the Brushaber decision that the conclusion that the 16th Amendment authorizes a direct non-apportioned tax, is an erroneous assumption that is the cause of all the confusion;
“We are of
opinion, however, that the confusion is
not inherent, but rather arises from
the conclusion that the 16th Amendment provides for a hitherto unknown
power of taxation; that is, a power to levy an income tax which, although
direct, should not be subject to the regulation of apportionment applicable to
all other direct taxes. And the far-reaching effect of this erroneous assumption will be made
clear…” Brushaber v. Union Pacific
R.R., 240
And, in
further denying the proposition that
the 16th Amendment authorizes a direct tax:
“…it clearly
results that the proposition and the contentions under it, if acceded
to, would cause one provision of the Constitution to destroy another; that is,
they would result in bringing the provisions of the Amendment exempting a
direct tax from apportionment into irreconcilable conflict with the
general requirement that all direct taxes be apportioned. Brushaber v. Union
10) Additionally,
in
"...by the previous ruling, it
was settled that the provisions of the 16th Amendment conferred no new power
of taxation but simply
prohibited the previous complete
and plenary power of income
taxation possessed by Congress from the beginning from being taken
out of the category of indirect taxation to which it inherently belonged.." Stanton v. Baltic Mining Co., 240
11) It is important to note that the Court identifies that the power of income taxation being tested in this case, was a “complete and plenary power” that was “possessed by Congress from the beginning”.
12) This statement appears to directly contradict the position and finding of the Court taken in1896 in settling the Pollock v. Farmer’s Loan & Trust, Co. (1895), where the court stated repeatedly;
"... a tax upon property
holders in respect of their estates, whether real or personal, or of the income yielded by such estates,
and the payment of which cannot be avoided, are direct taxes..."
Pollock v. Farmer’s Loan &
Trust Co., 157
and;
“… it is apparent (1) that the
distinction between direct and indirect taxation was well understood by the framers
of the constitution and those who adopted it; (2) that, under the state system
of taxation, all taxes on real
estate or personal property or the rents or income thereof were regarded as
direct taxes;” Pollock v. Farmer’s Loan & Trust Co., 157 U.S. 429, 573
(1895)
and;
“We are of opinion that the law in
question, so far as it levies a tax on the rents or income of real estate, is
in violation of the constitution, and is invalid.” Pollock v. Farmer’s Loan & Trust Co., 157 U.S. 429, 583 (1895)
13) Here, we seem to have found an apparent major
conflict between two Supreme Court rulings.
In 1895 in the Pollock case,
legislation taxing income is repeatedly identified by the Court as direct and
unconstitutional, but just twenty years later in the Stanton case, the
justices appear to reverse their Pollock
finding and declare that the power to tax income is now “previous, complete, and plenary”, a
power that was “possessed by Congress
from the beginning”, and that the 16th Amendment simply acted to
prohibit that congressional power of income taxation “from being taken out of the category of indirect taxation to
which it inherently belonged”!
14) How can the Court determine in Pollock that the taxation of income is
direct taxation and then strike down the legislation because it is
unconstitutional, and then determine a short time later in
15)
Of
course we can resolve this apparent conflict by examining the specific
provisions of each of the different pieces of legislation being tested by the Court
in the two different cases.
16)
In the Pollock case, the Court is testing a
tax on the income, or net profits, of the corporation and its shareholders
derived from real estate holdings and the bonds of the city of New York;
“An act to reduce taxation, to
provide revenue for the government, and for other purposes,' passed August 15,
1894, [stating] the company was liable, and that they intended to pay, to the
United States, before July 1, 1895, a tax of 2 per centum on the net profits of
said company for the year ending December 31, 1894, above actual operating and
business expenses, including the income derived from its real estate and its bonds of the city of New York; and that the
directors claimed and asserted that a similar tax must be paid upon the amount
of the incomes, gains, and profits, in excess of $4,000, of all minors and
others for whom the company was acting in a fiduciary capacity. And, further,
that the company and its directors had avowed their intention to make and file
with the collector of internal revenue for the Second district of the city of
New York a list, return, or statement showing the amount of the net income of
the company received during the year 1894, as aforesaid, and likewise to make
and render a list or return to said collector of internal revenue, prior to
that date, of the amount of the income, gains and profits of all minors and
other persons having incomes in excess of $3,500, for whom the company was
acting in a fiduciary capacity.” Pollock v. Farmer’s Loan & Trust Co., 157
17)
This tax
was laid by the 1894 statute on income derived from real estate and the bonds
(of the city of New York). The Pollock court decided that the Federal
government had no authority to tax the income derived from the instruments of
the State of New York (the bonds of the city of New York), and that the income
tax laid in the 1894 statute on income derived from real estate, rents and
other properties was an unconstitutionally direct tax on property that could
not be sustained as such without apportionment.
As ;
“I am of opinion that the whole law
of 1894 should be declared void, and without any binding force,-that part which
relates to the tax on the rents, profits, or income from real estate, that is,
so much as constitutes part of the direct tax, because not imposed by the rule
of apportionment according to the representation of the states, as prescribed
by the constitution; and that part which imposes a tax upon the bonds and securities
of the several states, and upon the bonds and securities of their municipal
bodies, and upon on the salaries of judges of the courts of the United States,
as being beyond the power of congress; and that part which lays duties,
imposts, and excises, as void in not providing for the uniformity required by
the constitution in such cases” Pollock v. Farmer’s Loan & Trust Co., 157 U.S. 429, 607 (1895)
18) In stark contrast, when we examine the statutes being tested in the Brushaber case twenty years later, we find an entirely different set of circumstances present in the case and acknowledged by the Court in its decision;
“…, the appellant filed his bill to
enjoin the corporation from complying with the income tax provisions of the tariff act of October 3, 1913.” Brushaber
v. Union Pacific R.R. Co, 240
19) In the very first sentence of this decision we are told that the Court is testing the income tax provisions of a tariff act. The specific tariff act referenced here is the Underwood-Simmons Tariff Act of October 3, 1913. A tariff is one form of an impost, and an impost, of course, is one of the three kinds of indirect taxes the Constitution authorizes the government to lay and collect under;
Article I, Section 8, Clause 1
"The Congress
shall have power to lay and collect taxes, duties, imposts, and excises, … but all duties, imposts and excises shall be
uniform throughout the
20) As an impost in the form of a tariff, the income tax provisions of the Underwood-Simmons tariff act of Oct. 3, 1913, do not constitute a direct tax under the 16th Amendment at all, but an inherently indirect tax under Article 1, Section 8, Clause 1, precisely as identified by the Chief Justice in the Brushaber decision, because all imposts are indirect taxes.
21) The error made by the 10th Circuit court in the Collins case was of course based on its erroneous assumption that the income tax laws were enacted under the 16th Amendment of the Constitution, which says;
16th Amendment
"Congress shall have power to lay and collect taxes on income from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration."
22) The language of the amendment does not state that the income tax is to be a direct tax. That must be improperly assumed in the (mis)-reading. The Supreme Court in the Brushaber case understood that if the 16th Amendment is interpreted as authorizing a direct tax, that interpretation would engineer a direct and inherent conflict within the Constitution with the un-repealed and un-amended pre-existing provisions of Article 1 prohibiting direct taxation unless laid in proportion to the census (Art. 1, Sec. 9, Cl. 4) and apportioned to the state governments for collection (Art. 1, Sec. 2, Cl. 3). The Court, however, recognizing that the income tax provisions of the legislation being tested were part of a tariff act, and knowing that a tariff is an impost, and knowing that an impost is an indirect tax under the Constitution (1,8,1), the Court was able to quite easily keep the distinction intact between the two great classes of taxing powers, direct and indirect, and maintain that;
“… the provisions of the 16th
Amendment conferred no new power of taxation but simply prohibited
the previous complete and plenary power of income taxation possessed by Congress from the beginning from
being taken out of the category of indirect taxation to which it inherently belonged.." Stanton v. Baltic Mining Co., 240 US 103,
112-113 (1916) (emphasis added)
and, again:
“…it clearly
results that the proposition and the contentions under it, if acceded
to, would cause one provision of the Constitution to destroy another; that
is, they would result in bringing the provisions of the Amendment exempting a
direct tax from apportionment into irreconcilable conflict with the
general requirement that all direct taxes be apportioned. Brushaber v. Union
23) It is stated conclusively by the Supreme Court in these two cases, Brushaber v. Union Pacific R.R., 240 U.S. 1 (1916) and Stanton v. Baltic Mining Co., 240 US 103 (1916), that the income tax legislation enacted in 1913 is an indirect tax (in the form of a tariff), and is not a nonapportioned direct tax as improperly stated in the Collins decision of the 10th Circuit and the Stumpf decision in the 9th Circuit.
24) There are no intervening authorities in the form of subsequent Supreme Court decisions addressing this matter of whether the income tax is a direct or indirect tax. As an indirect tax, the legislation may only enact and lay a tax in the form of an impost, duty, or excise. The Court states that the income tax provisions being tested in 1916 were the income tax provisions of a tariff act (of Oct. 3, 1913). Then, the Supreme Court conclusively determines that the income tax legislation being tested in these two cases in 1916 is perfectly Constitutional as indirect taxation. Surprisingly, and unknown to most attorneys and judges, those same Underwood-Simmons “income tax provisions of the tariff act” that the Court upheld in 1916, survive intact today as Subtitle A of Title 26, our income tax.
25) Tariff acts lay tariffs. Tariffs are imposed on and apply to foreign goods and activity, not domestic activity. All imposts, including those in the form of a tariff, must have inherent limitations in their application as a result of their status as an impost (laid on foreign activity).
26) A tariff is a tax, or schedule of rates for a tax, laid or imposed on foreign goods entering the United States, or on foreign activity occurring in the United States. Can we find evidence in the law today of this alleged foreign nature of the income tax, identified by the Supreme Court in its Brushaber decision in 1916? Are there any clear limitations found in the statutes implementing the provisions of the income tax legislation that was enacted in 1913, and that was subsequently tested by the Supreme Court in 1916? The connection is simple, and is in fact identified by the Supreme Court itself in the Brushaber decision opinion;
“2. The
act provides for collecting the tax at
the source; that is, makes it the
duty of corporations, etc., to retain and pay the sum of the tax …” Brushaber v. Union Pacific R.R. Co, 240 US 1, 21 (1916) (emphasis added)
27) Here, the court clearly identifies that the true scheme of the income tax, as provided by the actual legislation of the tariff act, is that of a tax that is collected at the source, by third parties identified as “corporations, etc.”
28) The entire true scheme of the income tax, as it was originally imposed under the actual laws enacted by Congress, and surprisingly, as we will see, exactly as it still exists today under the actual provisions of our current statutes, is described by the Court in this one sentence. The Court identifies that this “…collecting the tax at the source;” is how the income tax is actually collected under the provisions of the statutes because “The act provides…”, and it identifies how the tax is to be collected and paid into the Treasury under the actual laws that were passed into existence, as it “…makes it the duty of corporations, etc., to retain and pay the sum of the tax…”.
29) This entire true and actual scheme of the income tax, of “collecting the tax at the source”, by withholding from payments made to subject persons, under a legislatively created “duty” to “retain and pay the sum of the tax”, before those payments are even made to the subject taxpayer, is clearly laid out in this one sentence.
30) The Opinion of the Court clearly states that the act creates and imposes a legal “duty” on the “... corporations, etc., to retain and pay the sum of the tax”. This legislatively created “duty” of the “corporations, etc.”, identified by the Supreme Court in the Brushaber decision, is defined in the law and has been since the inception of this tax in 1913. Title 26 U.S.C. Section 7701(a)(16) states;
§ 7701 Definitions.
(a) When used in this Title ...
(1). Person. – The term “person” shall
be construed to mean and include an individual, a trust, estate, partnership,
association, company or corporation.
….
(16). Withholding Agent. - The term "Withholding Agent" means any
person required to deduct and withhold any tax under the provisions of sections
1441, 1442, 1443, or 1461.”
31) This subsection, (a), provides the statutory definition of these and other terms within Title 26 of the United States Code. These are essentially, the same definitions for these terms as existed in 1913 under the original income tax provisions of the tariff act of October 3, 1913 (the Underwood-Simmons Tariff Act). Subsection (a)(16) of Section 7701, defining the Subtitle A income tax Withholding Agent, establishes the complete and entire authority to withhold income taxes from subject persons under the authority of the Subtitle A statutes of Title 26, and has been the only statutory authority for the withholding of Subtitle A income taxes since the inception of the income tax in 1913.
32) The statutorily defined “Withholding Agent” is the entity defined in the income tax laws of Title 26, Subtitle A, with the legal “duty” to “retain and pay the sum of the tax” as identified and stated by the Supreme Court in the Brushaber decision. The “Withholding Agent” is tasked by the statutes with the duty to withhold the income tax at the source, i.e.: from payments made, and then pay over those withheld funds to the Treasury, acting as a tax collector.
33) The definition of the legal term “Withholding Agent” is simple and straight-forward. To understand its complete enacted authority all one need do is read the actual code sections invoked by the statutory definition shown above. The code sections, 1441, 1442, 1443, and 1461, which are the only authorities cited in the statutory definition of the Withholding Agent provided by 7701(a)(16), supra, provide as follows;
§ 1441. Withholding
of Tax on Nonresident Aliens
(a) General rule. Except as otherwise provided in subsection (c) all persons, in whatever capacity acting having
the control, receipt, custody, disposal
or payment of any of the items of income
specified in subsection (b) (to the extent that any of such items constitutes
gross income from sources within the United
States), of any nonresident alien individual, or of any foreign partnership shall deduct and withhold from such items a tax equal to 30 percent
thereof, except that in the case of any
items of income specified in the second sentence of subsection (b), the tax
shall be equal to 14 percent of such item. (emphasis added)
Section 1441 only authorizes the
withholding of income tax from nonresident aliens.
34) Section 1442 states;
§ 1442 Withholding of Tax on Foreign