Otto Skinner

[Pottapaug1938]

david said "Pottapaug1938 and Famspear, you are absolutely correct that ' Brushaber ' clearly admits that 'income' can be taxed without resort to the source. However, it must then follow the procedure of count and divide which 26USC1 (c) clearly does not do."

david, this is the second time I've had to explain to you that your cited section, dealing with taxes on shellfish, has nothing to do with income taxation. It is also at least the second time that I've had to explain to you that the 16th Amendment eliminates the need to anyone to "follow the procedure of count and divide" (to use the correct term, there is no longer a need to apportion the income tax among the states as per the Constitution).

I realize that you have a fervent desire to believe otherwise. However, that fervor does not turn falsehood into truth; and you will pay a heavy penalty for your belief if you insist in acting upon it.

[david]

After reviewing all the relatively intelligent reply's to my post, I've indulged myself with some mood altering substances, contemplated what I have learned from those reply's, and slept on it. Things seem to have fallen into a relative comprehendible sequence for me. I think an essay or something like a term paper would be a more proper form than a reply. As grixit seems to be one in control of this site, I'll send it to him to deal with as he see's fit. He can delete it, make suggestions for improvement, or post it as is for your review. I just hope this time he doesn't modify it. It might take me a day or two so please have patience.
Just a note, I am really surprised there weren't multiple shout downs to the repliers stating:
' ... the Sixteenth 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....', @ p 11 Brushaber v Union Pacific 240 US 1 (1916). As far as I can tell, Brushauber declares otherwise. However, sadly, there still seems to be controversy concerning that subject.
Thanks for your input guys in case grixit doesn't post my 'term paper'.
David

[JamesVincent]

I had looked at Brushaber before, not being a tax attorney or other already involved in the field, and I had found one section that not only summed it up well, but provided a clear explanation of the 16th in a way that "shouldn't" be misunderstood.

It is clear on the face of this text that it does not purport to confer power to levy income taxes in a generic sense,-an authority already possessed and never questioned, [240 U.S. 1, 18] -or to limit and distinguish between one kind of income taxes and another, but that the whole purpose of the Amendment was to relieve all income taxes when imposed from apportionment from a consideration of the source whence the income was derived.

I think my kids could understand that and understand what it means. YMMV

Emphasis mine.

[Famspear]

I had looked at Brushaber before, not being a tax attorney or other already involved in the field, and I had found one section that not only summed it up well, but provided a clear explanation of the 16th in a way that "shouldn't" be misunderstood....

Yep. And yet, the tax protester-tax deniers repeatedly quote from the texts of Brushaber, Stanton, Flint, Eisner v. Macomber and other cases all the time, claiming (in effect) that they reeeeeeaaaalllly believe that each case somehow "means" something completely different from what the courts ruled in those very cases.

These people are not the brightest bulbs on the Christmas tree.

[Pottapaug1938]

Their problem is that they don't know how to read an appellate decision. Rather than looking for the holding in the case and using the dicta and citations to help explain it, they search for quotes which will support their preconceived notions of what the law is.

David has just given us some textbook examples of this fallacy.

[Famspear]

Their problem is that they don't know how to read an appellate decision. Rather than looking for the holding in the case and using the dicta and citations to help explain it, they search for quotes which will support their preconceived notions of what the law is.

David has just given us some textbook examples of this fallacy.

And, the arrogance of these people is astonishing. They don't seem to have any rational sense of awareness that they are out of their league. They typically show no bashfulness about their eagerness to pontificate about legal principles without having even rudimentary training in the subject.

The behavior is akin to a wackadooster layperson arguing with a brain surgeon over the intricacies of the topic of brain surgery -- and expecting not only to be treated by the surgeon as an intellectual "equal" to the brain surgeon in the argument, but actually expecting the brain surgeon to defer to the wackadooster's amateurish "research".

Many of these people seem to exhibit no shame or sense of humility. Many of them are actually upset when they are not taken seriously by real experts.

[grixit]

Worse. It's like someone arguing that a brain surgeon should be guided by phrenology.

[Pottapaug1938]

It's all in line with what Charles P. Pierce says in his book "Idiot America." Essentially, in Amurrica, one person is as good as another, so his or her opinions are as good as those of elitist experts who probably went to a fancy-pants college somewhere and don't have the common sense that regular people have.

[The Observer]

Worse. It's like someone arguing that a brain surgeon should be guided by phrenology.

But in that case, all the brain surgeon needs to do is the advise the person that phrenology indicates they are lacking bumps on their own head, then pull the rubber mallet off the surgical tray and start whacking away until there are sufficient bumps on their skull or they fall unconscious (or both). Then the surgeon can operate in peace on his own patient.

It is obvious from David's recent posts here is that he going to declare victory based on his interpretation of his IRS letters and his mining of quotes from court opinions. He is not genuinely interested in understanding why his conclusions are wrong. That fact that he keeps focusing on what he thinks Brushaber says and ignores what several people have repeatedly told him what the case actually says is proof that he is not going to listen. And he will continue to not listen when he eventually runs up against the system that is going to deal with his refusal to follow the law. So he will argue with IRS employees, DOJ employees, and judges about what he thinks the law says to the point of ad nauseum.

[Pottapaug1938]

He's probably following the David Merrill/Harvester playbook, by pretending not to understand what we say and scattering irrelevant quotes in our path, all so he can strut around elsewhere and say that "the Qualoosians coudn't rebut my contentions; therefore, they must be true since they claim to be experts in this sort of thing."

[david]

'Brushauber" supports it's theory by directing the reader to Knolton approvingly,,,, ""Knolton v Moore, 178 US 41 (1900)
@ p 4 [...it becomes essential primarily to know what the law assesses and taxes in order to completely learn the nature of the burden.... to solve the contention as to want of uniformity, it is requisite to understand not only the objects or rights which are taxed, but the method ordained by the statute for assessing and collecting. ...]
@ p 47 [ "Direct taxes bear immediately upon persons, upon the possession and enjoyments of rights; indirect taxes are levied upon the happening of an event or an exchange."]"".
JamesVincent is totally correct with his quote,,, ""It is clear on the face of this text that it does not purport to confer power to levy income taxes in a generic sense,-an authority already possessed and never questioned, [240 U.S. 1, 18] -or to limit and distinguish between one kind of income taxes and another, but that the whole purpose of the Amendment was to relieve all income taxes when imposed from apportionment from a consideration of the source whence the income was derived""...
I am the source of my income. All income is property, the source, and countable. Therefor, my action creating income must be taxed at a defined rate.
I believe the particular tax in question before 'Brushaber' taxed the accumulation of property at a particular rate per unit. 'Brushaber' found the 16th Amnd. and the tax agreeable with the Constitution. The 16th Amnd. did not create any new avenue of taxation. I agree with my interpretation of 'Brushaber'. I believe any tax imposed with regard to (on) income must either count and divide or define an activity and determine a rate per unit. I do not believe 26 USC 1 (c) does either.
I can see that you and I have pretty much defined our positions of disagreement. Do you think it might be time to bring our points of view before a third disinterested person? You guys think I'm wrong, you guys are indicating I'm doing injury by not filing 1040's and paying the tax calculated on it. I claim no injury by your actions. Therefore, you are the plaintiff. Who is the third party? when and where will it hear us?
I apologize to grixit for including him in something I intended to do without his permission.
And I have realized that your 'New Topics" is intended for just that, new topics, expose yourself and reap the consequences.
David

[Pottapaug1938]

Our differing points of view HAVE been brought before disinterested third persons. They are the justices of the various appellate courts which have ruled on the constitutionality of the income tax; and the short answer is "you lose."

The question, in Brushaber, was whether or not the income tax was constitutional since the enabling legislation did not consider the source of the income nor apportion income taxes as per the Constitution. The answer, as you will see MANY times on Quatloos, is NO. The holding, as stated in the relevant article on Wikipedia (which I recommend to you) is "[T]he Sixteenth Amendment removes the requirement that income taxes be apportioned among the states according to population (Article I, section 9, clause 4 of the U.S. Constitution). The Revenue Act of 1913, imposing income taxes that are not apportioned among the states according to each state's population, is constitutional."

"The Revenue Act does not violate the Fifth Amendment's prohibition against the government taking property without due process of law."

"The Revenue Act does not violate the uniformity clause of Article I, section 8 of the U.S. Constitution."

You say "I believe any tax imposed with regard to (on) income must either count and divide or define an activity and determine a rate per unit. I do not believe 26 USC 1 (c) does either." Well, the holding in Brushaber, regarding your first point, is NO. As for 26 USC 1, we have already established that a tax on shellfish has NOTHING to do with the income tax,so it is irrelevant to your contention.

When the US Marshals bring you up to the Moakley Courthouse, I'll try to wave to you from the Savin Hill Avenue bridge.

[Quixote]

I believe any tax imposed with regard to (on) income must either count and divide or define an activity and determine a rate per unit. I do not believe 26 USC 1 (c) does either.

And you are wrong. I have no idea what you mean when you say a tax on income must "count and divide". It seems that you are saying the tax must be apportioned. But you know that the 16th amendment did away with any apportionment requirement that may have existed, so you must mean something else and are just doing a bad job of explaining it.

But that doesn't matter, because you don't get to decide how taxing statutes are written. 26 USC 1 imposes a tax on income. Everyone has a pretty good idea what "income" means. If you think of a Venn diagram of income, there are some gray areas at the fringes that the courts had to sort out in the 1920s and 30s, but most of us are affected only by the stuff in the center. So there was no need for Congress to define "income". Congress did set a rate per unit, or rather a set of rates for different brackets.

There is no limit to what Congress can tax (other than exports) and no stylebook dictating how they do it.

[Famspear]

....I believe any tax imposed with regard to (on) income must either count and divide or define an activity and determine a rate per unit. I do not believe 26 USC 1 (c) does either....

That's gibberish, david.

The income tax is not required to either "count and divide" or to "define an activity and determine a rate per unit," and no case you have mentioned supports this nonsense.

Title 26 USC section 1(c) is not "required" to either "count and divide" or to "define an activity and determine a rate per unit."

I can see that you and I have pretty much defined our positions of disagreement. Do you think it might be time to bring our points of view before a third disinterested person? You guys think I'm wrong, you guys are indicating I'm doing injury by not filing 1040's and paying the tax calculated on it. I claim no injury by your actions. Therefore, you are the plaintiff. Who is the third party? when and where will it hear us?

No, david, we Quatloos regulars are not the "plaintiff." And no, there is no appeal from the decision of the experts here at Quatloos.

We're not here to persuade you about what the law is.

We are here to teach the law. We are explaining the law to you, which means that we are explaining what will actually happen if you were to try to present your nonsense arguments in a court of law. There is no "third disinterested person" to whom you can appeal to "settle" the matter.

You keep using the word "injury." That's not exactly the legal term you should be using. What we are saying is that the theories you have presented here at Quatloos about federal income tax law are incorrect.

[morrand]

Our differing points of view HAVE been brought before disinterested third persons. They are the justices of the various appellate courts which have ruled on the constitutionality of the income tax; and the short answer is "you lose."

A totally unrelated post by Hilfskreutzer Möwe, praising one Australian judge's blunt and straightforward manner, brought to mind another opinion I'd read previously, and as it turns out, it's somewhat on-topic. The case is Monica del Carmen Gonzalez-Servin et. al v. Ford Motor Company, et. al. (7th USCA no. 11-1665, 08-2792 cons.) (2011). The appellants had basically ignored some relatively recent precedent. In his opinion, Judge Posner writes:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.

Which should be obvious to anyone who understands the meaning of precedent, and perhaps that's why Judge Posner went on to tear into counsel just a little bit more:

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don't be fooled by the picture below.) The "ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless." Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).

And, yes, there are pictures to illustrate the concept.

This is the reality. Yes, you might be able to convince the court to overrule its precedent, or to say, "no, this is different," or even to hold over the precedent so it can go up to a higher court. With the court having spoken pretty clearly and definitely on this point, that income taxes exist, good luck with that; for what it counts, "I don't believe that's the law" isn't the kind of argument that convinces courts, in general, to reverse themselves or their peers, and unless you can come up with something better, you may as well try to walk through the courthouse wall. You'll get further.

[Paul]

Sorry to come so late to the game, but I always thought the proper response to tax deniers who quote the Hubbard statement in the 1943 Congressional Record is to point out that the sentence that immediately precedes the statement they quote is, "It is still fundamentally an excise or duty with respect to the privilege of carrying on any activity or owning any property which produces income." If Hubbard is your authority, anything you do that produces income is taxable as a privilege.

[david]

Maybe we're looking down the same pipe, just from different ends, and can't agree with what we see.
1] Are we agreed that rents and royalties from property must be apportioned according to census? (direct)
2] Are we agreed that the residue that sticks to our fingers from the flow of property through our hands as we pursue our businesses can be taxes uniformly, according to each privilege or occupation? (indirect)
3] Are we agreed that you are saying the 16th Amnd. allowed for a 3rd form of tax, neither direct nor indirect?
Just a simple yes or no for each would be appreciated for the moment.
Thanks, David

[david]

Just an off topic question..
Who is messing with those things under my name displayed to the right?
And, what are their significance, what do they mean?
I hope to hear soon. Thanks.
David

[AndyK]

Maybe we're looking down the same pipe, just from different ends, and can't agree with what we see.
1] Are we agreed that rents and royalties from property must be apportioned according to census? (direct)
2] Are we agreed that the residue that sticks to our fingers from the flow of property through our hands as we pursue our businesses can be taxes uniformly, according to each privilege or occupation? (indirect)
3] Are we agreed that you are saying the 16th Amnd. allowed for a 3rd form of tax, neither direct nor indirect?
Just a simple yes or no for each would be appreciated for the moment.
Thanks, David

1 - If you are referring to income taxes imposed on rental and royalty receipts, the answer is NO

2 - the residue which sticks to your fingers can be removed with any number of good soaps. If this is a question regarding taxation, could you please restate it in English?

3 - NO and it dioesn't matter if it did or not. Is athere any part of the exceptionally clear language of "The Congress shall have power 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 you don't understasnd?

[david]

AndyK, 1] please re-read Pollock, 158, that many, many, many later cases viewed favorably.
2]profit from a business, trade, profession, privilege, occupation, after expenses, after you have done that business, trade...
and 3] Wow, thanks, I thought we were looking at each other cross-eyed for a while.