Title 26 and Codification

[LPC]

Inspired by recent drive-by troll:

The legal difference between the Internal Revenue Code of 1986 and Title 26 of the United States Code is rather subtle, and I wouldn't ridicule a tax protester for not understanding the difference. However, I would ridicule them for thinking that the Internal Revenue Code has never been enacted by Congress.

I practice in a state that has both consolidated and unconsolidated laws, so maybe my experiences and observations might be helpful.

For many, many years, the official source of statutory law was "session laws," which were the bills enacted by the legislature, published in chronological order. Needless to say, that made it very difficult to find all of the statutes relating to trusts and estates, or real property, because they were scattered out over the years.

At some point, many years ago, a man named Purdon decided to take session laws, cut them up, and paste them back together grouped by subject. So that, for example, all tax laws were in one volume and all laws relating to wills were in another volume. These volumes were published as "Purdon's Statutes," and became generally accepted as authoritative, even though they were not "official."

Not too long ago, the Pennsylvania legislature decided to begin "codifying" the statutes of Pennyslvania, and (as far as I can tell) used Purdon's as the starting point. So, for example, what had been Title 20 of Purdon's Statutes was reviewed, revised, and then enacted in its entirety as Title 20 of the Pennsylvania Consolidated Statutes. But not all titles of Purdon's Statutes have been enacted as codified titles.

What is kind of interesting is that West Publishing continues to publish both Purdon's Statutes and Pennsylvania Consolidated Statutes Annotated as an integrated product, so when you look at the books on the shelves, you will see what look like identical volumes in numeric order, except that some are marked “P.S.” and some are marked “Pa.C.S.A.”

The two statutes I work with frequently are the Probate, Estates, and Fiduciaries Code, which is consolidated, and the Inheritance and Estate Tax Act, which is not, because it’s part of the Tax Reform Code of 1971, an unconsolidated statute. So the inheritance tax rates that are found in section 2116 of the IETA are published by West as 72 P.S. § 9116.

So, what difference does it make?

1. The consolidated statutes are published by the Pa. Legislative Reference Bureau, so you can buy a copy of Title 20 from the state, and the copy will state that it is “an official publication of the Commonwealth of Pennsylvania and is legal evidence of the statutory and constitutional provisions contained therein.” 72 P.S. is published by West and is, technically speaking, unofficial. The “real” law is found in the Tax Reform Code of 1971, which is a session law. But as practical matter, no one cares. Everyone (lawyers, courts, and even the Pennsylvania Department of Revenue) cites 72 P.S. when referring to tax laws.

Same for the Internal Revenue Code. If you buy a copy of 42 U.S.C. from the Government Printing Office, it’s official evidence of the text of the statutes. 26 U.S.C. is “prima facie” (or presumptive) evidence but not legal (or final or binding) evidence.

2. If you want a printed copy of 72 P.S., you have to buy it from West Publishing. But you can buy a copy of 20 Pa.C.S. from the state, or you can buy 20 Pa.C.S.A. from West.

In this respect, federal is different from Pennsylvania, because you can’t buy a copy of the Tax Reform Code of 1971 from the state.

3. When statutes are amended, the legislative references are different. If the legislature wants to amend 20 Pa.C.S. section 2103, it enacts a bill that amends 20 Pa.C.S. section 2103. But the legislature can amend 72 P.S. 9116 because there’s no such statute. Instead, it has to amend section 2116 of the Tax Reform Code of 1971.

Same with the IRC. Congress can’t amend 26 U.S.C. 1 because there’s no such statute. It has to amend section 1 of the Internal Revenue Code of 1986.

So, why doesn’t Congress enact the Internal Revenue Code as Title 26 of the United States Code? I have no idea, but I also have no idea why the Pennsylvania legislature first codified the inhertance tax and then later later un-codified it.

The current inheritance tax is based on the Act of June 15, 1961 (P.L. 373, No. 207), which was repealed and replaced in 1982, when the IETA became part of the Pennsylvania Consolidated Statutes, Chapter 17 of Title 72. However, the IETA was unconsolidated in 1991, by Act 22 of 1991 (August 4, 1991), which repealed Chapter 17 of Title 72, renumbered all of the sections of the IETA, and re-enacted the IETA as part of the Tax Reform Code of 1971, an unconsolidated statute.

What was that all about? I have no idea.

[grixit]

Regardless of the format of publication, isn't this totally disingenuous from the start? I mean when a law if passed, and the date of implementation (if any) has passed, it's in force. I mean like if you go to a wilderness area and the permit office has a sign that says that hunting the three handled family credenza is now prohibited by a new state law, and you shoot one anyway, it's no use telling the ranger, or the judge, that you were not given a copy of the actual text that the governor signed. You had proper notice of the law, and you broke it.

[notorial dissent]

I will grant, and in fact agree with the comments about the confusion of what the difference between a positive(ly) passed law and one that is prima facie, I really don't understand why they don't just pass it as a title and be done with it either, but no one asked me either.

The point though is not that there is some confusion about the difference, the point is that they want to say that there is NO positive law, and therefore there can be no enforcement, etc, and therefore they don't have to do anything. The fact that title 26 is a consolidation of all the various tax statutes, well consolidated, organized, and put in context with each other is something they will ignore since it refutes what they want to believe. It is not so much a matter of confusion on their part as an intentional grasping at an excuse that fits their mind set. In other words, they don't want to hear it, so they won't.

[fortinbras]

The tax dodgers simply do not understand, nor want to understand, what 'positive law' means and what significance a law that is not positive law has.

Simply put, the Acts of Congress are, themselves, positive law.
The provisions of the US Code, being a logical arrangement of the individual sections of Acts of Congress, with amendments, often have their text 'massaged' editorially to read clearly when the sections are taken separately; as this is not exactly the wording passed by Congress, the Code section are merely prima facie law - the final authority being the Acts of Congress themselves. Quite frankly, the distinction seldom matters ... only very rarely does someone prove that the US Code failed to correctly represent the Acts (and it hasn't happened at all with Title 26).

A portion of the Code is enacted into positive law when Congress works up a bill that sets forth the text of each section, as it would appear in the Code, and enacts that bill, thereby making that portion of the Code read EXACTLY the words enacted by Congress.

Since Title 26 was original enacted by Congress as the Internal Revenue Code, in one huge bill, and then Congress ordered that the IRC would be used as Title 26, you can see that Title 26 is effectively positive law even though the Act of Congress making it title 26 didn't use that term.

[Cathulhu]

Yeah, and when you explain all this to the trolls, they do the equivalent of putting hands over ears and yelling "La La La La La".

[Dr. Caligari]

Even Larry Becraft, lawyer to the Tax Defiers, has written that this argument is bogus:

http://home.hiwaay.net/~becraft/titles.html

[Famspear]

Even Larry Becraft, lawyer to the Tax Defiers, has written that this argument is bogus:

http://home.hiwaay.net/~becraft/titles.html

It's the ultimate in humiliation for someone who posits a tax protester argument......

"Even Becraft won't buy it!!"

[grixit]

Even Larry Becraft, lawyer to the Tax Defiers, has written that this argument is bogus:

http://home.hiwaay.net/~becraft/titles.html

hiwaay.net is still in business?

[Dr. Caligari]

The link still works.

[LPC]

Since Title 26 was original enacted by Congress as the Internal Revenue Code, in one huge bill, and then Congress ordered that the IRC would be used as Title 26,

I don't think that is correct.

And I mean that literally. I don't think that Congress ever ordered (or agreed) that the IRC would be Title 26 of the USC, or that Title 26 of the USC would be the IRC.

My understanding is the the USC is organized and compiled by the Office of Law Revision Counsel. See 2 USC 285 and 285A. According to section 285B, among the functions of the OLRC are:

(3) To prepare and publish periodically a new edition of the United States Code (including those titles which are not yet enacted into positive law as well as those titles which have been so enacted), with annual cumulative supplements reflecting newly enacted laws.

(4) To classify newly enacted provisions of law to their proper positions in the Code where the titles involved have not yet been enacted into positive law.

So the OLRC has the power to organize and publish statutes as part of the titles that have not yet been enacted as "positive law." (Not sure what "proper position" means.)

But Title 26 has not been enacted as positive law so, as far as I can tell, the only reason that the IRC is published as Title 26 of the USC is because the OLRC decided it should be, and not because Congress decided it should be.

(Incidentally, Wikipedia seems to have a pretty good writeup on how the USC is put together, and and a chart of which titles are "positive" and which aren't.)