Judge Accuses TP Of Using Old-School Frivolous Arguments

[The Observer]

RICHARD P. ALDRICH,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

Release Date: AUGUST 28, 2013

UNITED STATES TAX COURT

Filed August 28, 2013

Richard P. Aldrich, pro se.

Leonard T. Provenzale, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

GOEKE, Judge: Respondent determined deficiencies in petitioner's Federal income tax and additions to tax as follows:

[*2]

Additions to tax
__________________________________________________

Year Deficiency Sec. 6651(a)(1) Sec. 6651(a)(2) Sec. 6654
_____________________________________________________________________

2004 $ 15,779/1/ $ 2,289 $ 2,543 $ 272
2005 14,004 3,151 3,501 562
2006 13,380 2,665 2,961 552
2007 28,308 3,435 To be computed 629
2008 22,804 4,810 To be computed 682
2009 18,375 3,369 To be computed 349
2010 23,600 3,510 To be computed 316
_____________________________________________________________________

/1/ All dollar amounts are rounded to the nearest dollar.

The issues for decision are:

(1) whether petitioner is liable for deficiencies for the tax years 2004 through 2010 as determined in the notices of deficiency. With one minor exception, we hold that he is; and

(2) whether petitioner is liable for additions to tax for failure to timely file under section 6651(a)(1), 1 failure to timely pay under section 6651(a)(2), and failure to pay estimated taxes under section 6654 for the years 2004 through 2010. We hold that he is.

[*3] FINDINGS OF FACT

Some of the facts have been stipulated. The stipulation of facts is incorporated by this reference. At the time petitioner filed the petition, he resided in Florida.

Petitioner did not file Federal income tax returns for the 2004, 2005, 2006, 2007, 2008, 2009, and 2010 taxable years (years at issue) and made no payments in regard to his tax liabilities for the years at issue. Petitioner does not argue that he filed tax returns; however, petitioner believed the filing of income tax returns was part of a "voluntary system of self-assessment". He argues he could not be accountable for tax until after he filed an income tax return and then his "self-assessment" would determine his tax liability. As a result, petitioner determined that he did not owe income tax for the years at issue because the Internal Revenue Service (IRS) failed to provide him with a "definition of income" and failed to identify "any federal taxing statute which applies to * * * [him]". Instead, petitioner filed forms with the IRS which he described as a series of questions for clarification of his tax.

Consequently, respondent prepared substitutes for returns (SFRs) under section 6020(b) on behalf of petitioner for the years at issue. Petitioner received wage, dividend, capital asset proceeds, unemployment compensation, and [*4] retirement income for the years at issue. Petitioner's adjusted gross income for each of the years at issue exceeded the exemption amount plus the amount of the standard deduction applicable to him. Petitioner had withholdings for the taxable years at issue and was given credit for the withholdings. Petitioner did not pay the income tax shown on the SFRs.

In addition, petitioner did not make any estimated tax payments. Petitioner admits he failed to file tax returns for the years at issue; however, petitioner argues that respondent's SFRs are not to be treated as his tax returns.

Relying on the SFRs, respondent issued two notices of deficiency to petitioner, one for the years 2004 through 2008 and another for the years 2009 and 2010. In the notices of deficiency, one dated August 31, 2011, and the other dated September 30, 2011, respondent determined Federal income tax deficiencies and additions to tax in the amounts listed above. On November 29, 2011, petitioner timely filed a petition seeking redetermination.

OPINION

I. Burden of Proof

The Commissioner's determinations are generally presumed correct, and taxpayers bear the burden of proving that the Commissioner's determinations are incorrect. Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933). On rare [*5] occasions this Court has recognized an exception to this presumption in cases involving unreported income where the Commissioner introduces no substantive evidence but relies solely on the presumption of correctness. Jackson v. Commissioner, 73 T.C. 394, 401 (1979). In such cases, if the taxpayer challenges the notice of deficiency on the ground that it is arbitrary, then the determination is treated as a "naked" assessment and the presumption of correctness does not attach. 2 Id. However, this is a limited exception, and it does not apply when the Commissioner has provided a minimal evidentiary foundation. Petzoldt v. Commissioner, 92 T.C. 661, 687-688 (1989); Fankhanel v. Commissioner, T.C. Memo. 1998-403, aff'd without published opinion, 205 F.3d 1333 (4th Cir. 2000). 3

[*6] Once the Commissioner produces evidence linking the taxpayer with an income-producing activity, the burden shifts to the taxpayer "to rebut the presumption of correctness of respondent's deficiency determination by establishing by a preponderance of the evidence that the deficiency determination is arbitrary or erroneous." Petzoldt v. Commissioner, 92 T.C. at 689; see also Hardy v. Commissioner, 181 F.3d 1002, 1004 (9th Cir. 1999), aff'g T.C. Memo. 1997-97.

Respondent has introduced several relevant documents, including: (1) an IRS Certificate of Official Record and Tax Return Transcript indicating petitioner did not file tax returns for the years at issue; (2) copies of petitioner's 2004 to 2008 and 2009 to 2010 statutory notices of deficiency and corresponding Forms 4549, Income Tax Examination Changes; (3) an IRS Certificate of Official Record and Wage and Income Transcript for petitioner's taxable years at issue; (4) multiple Forms W-2, Wage and Tax Statement, issued to petitioner by past employers; and (5) a Form 1099-R, Distributions From Pensions, Annuities, [*7] Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., issued to petitioner by United States Automobile Association as custodian. We find that the submitted evidence clearly suffices to establish the requisite minimal evidentiary foundation linking petitioner with the income-producing activities for the years at issue. Accordingly, petitioner bears the burden of proof. See, e.g., Banister v. Commissioner, T.C. Memo. 2008-201 (holding that a notice of deficiency indicating third-party payers paid the taxpayer specific amounts in question satisfied the minimal evidentiary burden even though direct evidence was not in the record), aff'd, 418 Fed. Appx. 637 (9th Cir. 2011).

II. Gross Income

Gross income includes all income from whatever source derived, including pensions, dividends, capital asset proceeds, unemployment compensation, 4 and compensation for services, such as wages, salaries, and bonuses. Secs. 61(a)(1), 85(a); sec. 1.61-2(a)(1), Income Tax Regs. Petitioner failed to report any income for the years at issue. Respondent has gathered information from third parties to [*8] determine petitioner's gross income. The record shows that petitioner had gross income for each of the years at issue.

In general, individuals who have gross income that exceeds the exemption amount specified by section 6012(a) must file an income tax return. Petitioner's gross income exceeded the exemption amount plus the amount of the standard deduction applicable to him, and he was required to file returns. Sec. 6012(a)(1)(A).

Petitioner does not substantially refute these points but rather contends the filing of tax returns is part of a voluntary system of self-assessment and he cannot be held liable for tax unless he files an income tax return. These "tax protester" 5 arguments are without merit and lack factual and legal foundation. "We perceive no need to refute these arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit." Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984). Addressing frivolous tax-protester arguments: (1) wastes the limited resources of the Court; (2) delays the assessment of tax; and (3) risks dignifying such arguments or suggesting that they have some colorable merit. Wnuck v. Commissioner, 136 [*9] T.C. 498, 510-513 (2011). We have also recognized that tax-protester arguments: (1) are unlimited; (2) may have little actual importance to those making them; (3) have often already been answered; and (4) are often patently frivolous. Id. at 501-505.

Petitioner claims his arguments are not frivolous, but we disagree. The assertion that a taxpayer does not owe income tax in the absence of a self-assessment is an "outdated protester-type argument". See Hill v. Commissioner, T.C. Memo. 1992-140. We therefore hold the voluntary system of self-assessment argument is frivolous.

Petitioner also argues that the lack of underlying Code of Federal Regulations to support the statutes which he has violated nullifies the statute. Petitioner has confused the order of authority. "Ordinarily, administrative interpretations of statutory terms are given important but not controlling significance." Batterton v. Francis, 432 U.S. 416, 424 (1977). We hold the parallel authority argument is frivolous.

We find that respondent has proved petitioner failed to report taxable income for the years at issue and is liable for the Federal income tax he failed to pay on that income.

[*10] III. Additions to Tax

A. Burden of Proof

Under section 7491(c), the Commissioner bears the burden of production with regard to additions to tax and must come forward with sufficient evidence indicating that it is appropriate to impose additions to tax. See Higbee v. Commissioner, 116 T.C. 438, 446 (2001). However, once the Commissioner has met the burden of production, the burden shifts to the taxpayer to show the additions are improper. See Rule 142(a); Higbee v. Commissioner, 116 T.C. at 446-447.

B. Reasonable Cause

The section 6651(a)(1) and (2) additions to tax will not apply if it is shown that the failure to file and/or pay timely was due to reasonable cause and not due to willful neglect. A failure to pay timely is due to reasonable cause if the taxpayer "exercised ordinary business care and prudence in providing for payment of his tax liability and was nevertheless either unable to pay the tax or would suffer an undue hardship * * * if he paid on the due date." Sec. 301.6651-1(c)(1), Proced. & Admin. Regs.; see also Ruggeri v. Commissioner, T.C. Memo. 2008-300. To prove reasonable cause for a failure to timely file, the taxpayer must show that he exercised ordinary business care and prudence and was nevertheless unable to file [*11] the return within the prescribed time. See Crocker v. Commissioner, 92 T.C. 899, 913 (1989). Willful neglect contemplates "a conscious, intentional failure or reckless indifference." United States v. Boyle, 469 U.S. 241, 245 (1985).

Petitioner intentionally chose not to file and pay tax for the years at issue, making frivolous tax-protester arguments. We have found that frivolous positions do not constitute reasonable cause for purposes of section 6651. McGowan v. Commissioner, T.C. Memo. 2006-154 ("[T]ypical tax protester arguments are not reasonable cause.").

C. Section 6651(a)(1)

As a general rule "any person made liable for any tax * * * shall make a return or statement according to the forms and regulations prescribed by the Secretary." Sec. 6011(a). In the case of a failure to file a return on time, an addition to tax is imposed at 5% of the tax required to be shown on the return for each month or fraction thereof for which there is a failure to file, not to exceed 25% in the aggregate. Sec. 6651(a)(1).

Petitioner did not file timely tax returns for the years at issue. Respondent has thus met his burden of production. See Wheeler v. Commissioner, 127 T.C. 200, 207-208 (2006), aff'd, 521 F.3d 1289 (10th Cir. 2008). Petitioner has not presented any evidence that his failure to file was due to reasonable cause and not [*12] willful neglect. Accordingly, we sustain the additions to tax under section 6651(a)(1).

D. Section 6651(a)(2)

An addition to tax is imposed for failure to pay the amount of tax shown on a return on or before the date prescribed for payment. Sec. 6651(a)(2). The addition is equal to 0.5% of the amount shown as tax on the return for each month, or fraction thereof, during which the failure to pay continues, up to a maximum of 25%. Id.

Where the taxpayer did not file a valid return, to satisfy his burden of production for the section 6651(a)(2) addition to tax the Commissioner must introduce evidence that he prepared SFRs. Respondent prepared SFRs under section 6020(b) for the years at issue. SFRs made by the Secretary under section 6020(b) are treated as returns filed by the taxpayer for purposes of determining whether the section 6651(a)(2) addition to tax applies. Sec. 6651(g)(2); Wheeler v. Commissioner, 127 T.C. at 208-209. Respondent prepared SFRs in these cases which showed that petitioner owed tax for each of the years at issue before the addition of interest and additions to tax. These returns conform with section 6020(b).

[*13] Petitioner has not paid any portion of the amounts reported due on the returns respondent prepared. As a result, we find that petitioner failed to timely pay the tax shown due on the section 6020(b) returns without reasonable cause and is liable for the additions to tax under section 6651(a)(2).

E. Section 6654

Respondent determined additions to his calculation of tax liabilities for the years at issue for failure to pay estimated tax. A taxpayer's required annual payment is limited to the lesser of: (1) 90% of the tax shown on the return for the taxable year, or 90% of the tax for such year if no return is filed or (2) 100% of the tax shown on the return of the individual for the preceding taxable year. 6 Sec. 6654(d)(1)(B). Petitioner has argued that he had no tax liabilities for the years at issue. We have already found that petitioner was liable for tax for the years 2004 through 2010, and we also note that petitioner's tax liability for 2003 was greater than zero. Therefore, petitioner is liable for the section 6654 addition to tax for each year at issue. The amounts of the additions shall be determined by the parties in their Rule 155 calculations in accordance with the other holdings herein.

Petitioner has taken a multitude of frivolous and groundless positions characteristic of tax protesters. We strongly warn petitioner that making such [*14] arguments before this Court in the future will likely result in the imposition of sanctions against him.

In reaching our holdings herein, we have considered all arguments made, and, to the extent not mentioned above, we conclude they are moot, irrelevant, or without merit.

To reflect the foregoing,

Decisions will be entered under Rule 155.

FOOTNOTES:

/1/ All section references are to the Internal Revenue Code in effect for the years at issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated.

/2/ Additionally, if a taxpayer asserts a reasonable dispute with respect to any item of income reported on an information return filed with the Secretary by a third party and the taxpayer has fully cooperated with the Secretary, the Secretary shall have the burden of producing reasonable and probative information concerning the deficiency in addition to that information return. Sec. 6201(d). Petitioner has not asserted a "reasonable dispute" in these cases, rendering the aforementioned section inapplicable. See, e.g., Parker v. Commissioner, T.C. Memo. 2012-66; Cook v. Commissioner, T.C. Memo. 2010-137; see also Parker v. Commissioner, 117 F.3d 785, 787 (5th Cir. 1997).

/3/ This exception to the presumption of correctness afforded to the Commissioner's determinations has been widely accepted among the Courts of Appeals. See, e.g., Blohm v. Commissioner, 994 F.2d 1542, 1549 (11th Cir. 1993) aff'g T.C. Memo. 1991-636; Dodge v. Commissioner, 981 F.2d 350, 353 (8th Cir. 1992), aff'g in part, rev'g in part 96 T.C. 172 (1991); United States v. Walton, 909 F.2d 915, 919 (6th Cir. 1990); Ruth v. United States, 823 F.2d 1091, 1094 (7th Cir. 1987); Llorente v. Commissioner, 649 F.2d 152, 156 (2d Cir. 1981), aff'g in part, rev'g in part 74 T.C. 260 (1980); Weimerskirch v. Commissioner, 596 F.2d 358, 362 (9th Cir. 1979), rev'g 67 T.C. 672 (1977).

/4/ With respect to tax year 2009, we note sec. 85(c) provides that in the case of any taxable year beginning in 2009, that "gross income shall not include so much of the unemployment compensation received by an individual as does not exceed $ 2,400". It appears the unemployment compensation for 2009 was not reduced by $ 2,400 in the notice of deficiency. Therefore, a Rule 155 computation will be needed for taxable unemployment compensation for that year.

/5/ "Tax protester[s]" is a name often given to persons who make frivolous antitax arguments. Wnuck v. Commissioner, 136 T.C. 498, 502 n.2 (2011).

/6/ Petitioner did not file Federal tax returns for the years 2004 through 2010.

[AndyK]

We have also recognized that tax-protester arguments: (1) are unlimited; (2) may have little actual importance to those making them; (3) have often already been answered; and (4) are often patently frivolous. Id. at 501-505.

(emphasis added)

This borders on an understatement. Compliance-challenged individuals (The 'TP' designation is no longer politically correct.) rehash old arguments with minor changes to spelling or punctuation with the expectation that they have unearthed the Elder Wand.

I've had discussions (sometimes lubricated with ethanol) with Tax Court judges who blame the Internet for the wide-spread distribution of the various anti-tax theories and strategies. They, almost to a man (or woman) complain that the taxpayers are being disserved by various promoters of urban-legend tax avoidance theories -- even those promoters who distribute their snake-oil for no charge.

The Tax Court judges would prefer to (1) deal with cases of legitimate issues; even those where the taxpayer was in the wrong but merely mistaken and (2) not need to impose sanctions (which are almost never paid) against misinformed individuals.

The judges would like to see their Court as an effective forum for legitimate law challenges.

The increasing (and often recurring) presence of the compliance-challenged drains their resources.

[Hilfskreuzer Möwe]

I've had discussions (sometimes lubricated with ethanol) with Tax Court judges who blame the Internet for the wide-spread distribution of the various anti-tax theories and strategies. They, almost to a man (or woman) complain that the taxpayers are being disserved by various promoters of urban-legend tax avoidance theories -- even those promoters who distribute their snake-oil for no charge.

The Tax Court judges would prefer to (1) deal with cases of legitimate issues; even those where the taxpayer was in the wrong but merely mistaken and (2) not need to impose sanctions (which are almost never paid) against misinformed individuals.

The judges would like to see their Court as an effective forum for legitimate law challenges.

The increasing (and often recurring) presence of the compliance-challenged drains their resources.

I recently had an opportunity to speak (unlubricated) in a social gathering with a justice from the Tax Court of Canada who reported the exact same dissatisfaction and fatigue.

It is extremely unfortunate that these special bodies of skilled experts are neither being used efficiently, nor in a manner that provides genuine benefit to the public.

SMS Möwe

[Burnaby49]

I've had discussions (sometimes lubricated with ethanol) with Tax Court judges who blame the Internet for the wide-spread distribution of the various anti-tax theories and strategies. They, almost to a man (or woman) complain that the taxpayers are being disserved by various promoters of urban-legend tax avoidance theories -- even those promoters who distribute their snake-oil for no charge.

The Tax Court judges would prefer to (1) deal with cases of legitimate issues; even those where the taxpayer was in the wrong but merely mistaken and (2) not need to impose sanctions (which are almost never paid) against misinformed individuals.

The judges would like to see their Court as an effective forum for legitimate law challenges.

The increasing (and often recurring) presence of the compliance-challenged drains their resources.

I recently had an opportunity to speak (unlubricated) in a social gathering with a justice from the Tax Court of Canada who reported the exact same dissatisfaction and fatigue.

It is extremely unfortunate that these special bodies of skilled experts are neither being used efficiently, nor in a manner that provides genuine benefit to the public.

SMS Möwe

If you want an example of the expertise of the skill and expertise of the Tax Court of Canada at work, and have a spare hour or two to grind through esoteric arguments (catnip to Mowe) try this baby, a recent (yesterday) decision by Justice Dianne Campbell of the Tax Court of Canada:

http://decision.tcc-cci.gc.ca/en/2013/2 ... cc264.html

The issue involved an extremely obscure provision of the Canadian Income Tax Act which allows Hutterites to split income. Blackmore, the appellant, ran a polygamous quasi-Mormon cult-like commune in southern British Columbia. He also had a successful company and he chose not to report income from it until the Canada Revenue Agency caught him. He retained an extremely good tax lawyer who went to court on S.143. It was essentially a lifeline for Blackmore because, until the appeal, he hadn't known it existed (the lawyer pointed it out to him) and suddenly it was his only defense. As the judge said the decision had very little to do with tax. It was essentially statutory interpretation to parse the intent of parliament (again Mowe catnip!), an in depth analysis of the definition of words like "organization", and a very detailed review of the application of the commune's belief system to S.143 of the act.

I've spent 30+ years analizing Tax Court decisions and I've not seen another that rivals the depth of analysis and overall technical expertise involved in this decision.

[Backo]

I note that decision contains this paragraph when discussing earlier legislation and cases:

[18] On appeal to the Supreme Court of Canada, the government’s appeal was dismissed from the bench in two lines delivered by Chief Justice Laskin: “We do not need to hear you Mr. Matheson. We agree with the judgment of the Federal Court of Appeal and this appeal is, accordingly, dismissed with costs.” ([1976] SCJ No. 125).

Ouch.

[Burnaby49]

I note that decision contains this paragraph when discussing earlier legislation and cases:

[18] On appeal to the Supreme Court of Canada, the government’s appeal was dismissed from the bench in two lines delivered by Chief Justice Laskin: “We do not need to hear you Mr. Matheson. We agree with the judgment of the Federal Court of Appeal and this appeal is, accordingly, dismissed with costs.” ([1976] SCJ No. 125).

Ouch.

The process described in paragraphs 15 to 18 of this decision was very cumbrsome and no longer exists. Until the early 1980s Canadian tax cases were initially heard at the Tax Review Board, a court in all but name. I testified in at the TRB as an expert witness a few times and it seemed like court to me. However, since it wasn't a court, parties appealing a TRB decision were not heard at an appelate court. The case under appeal had to be completely re-tried at the Federal Court of Canada. An appeal from that went to the Federal Court of Appeals. As another quirk in the rules the taxpayer, but not the Crown (if I remember correctly) could elect to skip the TRB and go straight to Federal Court. This happened in one of my cases. As a result of these convoluted rules the Tax Review Board often served just as a practice run to test arguments. The loser got a second shot at a trial at Federal Court with the TRB decision as guidance in patching weak arguments. This left the Federal Court swamped with tax cases.

In the 1980s the Canadian government cut one stage of the process out by eliminating the Federal Court as a trial court for tax cases. The TRB was redesignated as the Tax Court and appeals from its decision went straight to the Federal Court of Appeals as regular appeals.

Backo is right, the Supreme Court was very abrupt. It should have at least allowed the Crown its time on the podium.

[Backo]

A colleague once told me about an appearance on a traffic charge appeal where the judge informed him he didn't require any submissions and then granted the appeal. I can't say I've heard of an appellant, particularly the State, being hosed out so unceremoniously before though.

[Burnaby49]

It happened once in a case that I was perpherally involved in, a Federal Court of Appeal hearing of an appeal by the Crown from a Tax Court loss. The Tax Court was competely wrong and the tax community was greatly surprised that the taxpayer won the decision, it went against a number of extremely similar decisions where other Tax Court judges had decided against taxpayers.

The Federal Court of Appeal had already decided against a taxpayer's appeal in a similar scheme and was not happy to be facing the identical issue again. The Federal court of Appeal heard the taxpayer's arguments and then told the Crown not to bother presenting its case. It made an oral decision in favour of the Crown from the bench without discussion and then followed up with a written decision quite dismissive of the Tax Court Judge, see paragraph 5 and 37-38:

http://decisions.fca-caf.gc.ca/en/2005/ ... ca386.html

[Hilfskreuzer Möwe]

If you want an example of the expertise of the skill and expertise of the Tax Court of Canada at work, and have a spare hour or two to grind through esoteric arguments (catnip to Mowe) try this baby ...

... As the judge said the decision had very little to do with tax. It was essentially statutory interpretation to parse the intent of parliament (again Mowe catnip!), an in depth analysis of the definition of words like "organization", and a very detailed review of the application of the commune's belief system to S.143 of the act.

I've spent 30+ years analizing Tax Court decisions and I've not seen another that rivals the depth of analysis and overall technical expertise involved in this decision.

Am I so grimly predictable? Mmm. Perhaps I am. After having read Justice Campbell's little missive I do have to agree this is a very nice piece of work: methodical, very well organized, and that states its reasoning and conclusions in a clear, explicit manner.

And I see it took well over a year to grind out. I can understand why, particularly with all that expert testimony, and the 'other things' going on at the TCC.

A colleague once told me about an appearance on a traffic charge appeal where the judge informed him he didn't require any submissions and then granted the appeal. I can't say I've heard of an appellant, particularly the State, being hosed out so unceremoniously before though.

That was more than a little unusual. The Supreme Court of Canada quite often rejects appeals immediately after the appellant's argument, but before it? Oh, I see a possible explanation. The requirement that a litigant obtain leave to appeal before being heard at the SCC was introduced in 1975. It may be that Wipf v The Queen snuck in under the old regime, but the court just could not be bothered to offer the Crown much courtesy for what the justices must have concluded was a hopeless appeal.

Post-1975 we see a lot of 'slam-dunks' at the SCC because leave to appeal to that court is automatic in certain criminal matters, such as where the decision at the appeal court below was split. Those make up about 10% of the SCC's case load.

SMS Möwe

[Burnaby49]

Blackmore has appealed the decision to the Federal Court of Appeal.

[cudgel]

taxes are evidense of a contract....The Supreme Court of Canada in Syndicate Northcrest v Amselem in 2004 provides an intersting loophole for those persistant tax protesters....The Taxman Corp thinks it is a contract God...Seems to me that couple proved they could not be held to contracts that offend their faith,,,if you do not tell the taxman your faith that bowing to false gods offends it how can avoid his assumpsit contract?? Yes I can see that commercial motivation digression will be resorted to and even name calling innuendo and shoot the messenger type wisdom but address the topic like your interested in either the existance of the fabled silver bullet exists cause you just saw it with Amselem....or showing how with logic the case has no merit

[JamesVincent]

taxes are evidense of a contract....The Supreme Court of Canada in Syndicate Northcrest v Amselem in 2004 provides an intersting loophole for those persistant tax protesters....The Taxman Corp thinks it is a contract God...Seems to me that couple proved they could not be held to contracts that offend their faith,,,if you do not tell the taxman your faith that bowing to false gods offends it how can avoid his assumpsit contract?? Yes I can see that commercial motivation digression will be resorted to and even name calling innuendo and shoot the messenger type wisdom but address the topic like your interested in either the existance of the fabled silver bullet exists cause you just saw it with Amselem....or showing how with logic the case has no merit

Huh?

[Burnaby49]

Syndicat Northcrest v Amselem (Cudgel spells it Syndicate, couldn't even spell the name right on what he considers a landmark case) had absolutely nothing whatever to do with taxes. The issue was the right of Orthodox Jews to set up small ceremonial huts on their balconys during Succot.

Constitutional law — Charter of Rights — Freedom of religion — Definition of freedom of religion — Proper approach for freedom of religion analyses — Canadian Charter of Rights and Freedoms, s. 2(a).

The appellants A, B, K, and F, all Orthodox Jews, are divided co-owners of units in luxury buildings in Montréal. Under the terms of the by-laws in the declaration of co‑ownership, the balconies of individual units, although constituting common portions of the immovable, are nonetheless reserved for the exclusive use of the co‑owners of the units to which they are attached. The appellants set up “succahs” on their balconies for the purposes of fulfilling the biblically mandated obligation of dwelling in such small enclosed temporary huts during the annual nine‑day Jewish religious festival of Succot. The respondent requested their removal, claiming that the succahs violated the by‑laws, which, inter alia, prohibited decorations, alterations and constructions on the balconies. None of the appellants had read the declaration of co‑ownership prior to purchasing or occupying their individual units. The respondent proposed to allow the appellants to set up a communal succah in the gardens. The appellants expressed their dissatisfaction with the proposed accommodation, explaining that a communal succah would not only cause extreme hardship with their religious observance, but would also be contrary to their personal religious beliefs, which, they claimed, called for the setting up of their own succahs on their own balconies. The respondent refused their request and filed an application for a permanent injunction prohibiting the appellants from setting up succahs and, if necessary, permitting their demolition. The application was granted by the Superior Court and this decision was affirmed by the Court of Appeal.

Held (Bastarache, Binnie, LeBel and Deschamps JJ. dissenting): The appeal should be allowed.

Cudgel, like all of his detaxer type buddies, takes a decision such as this and applies it totally out of context. He apparently assumes that the Syndicat Northcrest is a carte blanche allowing anybody to get out of any obligation, including taxes, on the basis it violates their claimed religious beliefs. Unfortunately for Cudgel it doesn't work that way and the Canadian courts have been clear that there is no exemption for taxes on religious grounds. Note that Syndicat Northcrest was a 2004 decision. If it had any relevance to Canadian taxation it could be assumed that it would have been used extensively in the intervening nine years to avoid paying taxes. Not a whisper.

http://scc-csc.lexum.com/decisia-scc-cs ... GVtAAAAAAE

[Burnaby49]

See link below for a 2008 decision by the Provincial Court of New Brunswick in a tax evasion case (a criminal offense) where the taxpayer claimed he had the right not to pay taxes because of his religious beliefs. Used the Canadian Charter of Rights and Freedom same as the Syndicat plaintiffs. He cited Syndicat as part of his defense. He was found guilty. The Court had this to say about the relevance of Syndicat;


[11] In Syndicate Northcrest v Amselem [2004] 2 SCR SS1 Iacobucci J, writing
for the majority of the SCC said at paragraphs 61 and 62:

61 In this respect, it should be emphasized that not every action will become summarily unassailable and receive automatic protection under the banner of freedom of religion. No right, including freedom of religion, is absolute: ….In the real world, oftentimes the fundamental rights of individuals will conflict or compete with one another.

62 Freedom of religion, as outlined above, quite appropriately reflects a broad and expansive approach to religious freedom under both the Quebec Charter and the Canadian Charter and should not be prematurely narrowly construed. However, our jurisprudence does not allow individuals to do absolutely anything in the name of that freedom. Even if individuals demonstrate that they sincerely believe in the religious essence of an action, for example, that a particular practice will subjectively engender a genuine connection with the divine or with the subject or object of their faith, and even if they successfully demonstrate non-trivial or non-insubstantial interference with that practice, they will still have to consider how
the exercise of their right impacts upon the rights of others in the context of the competing rights of private individuals. … The ultimate protection of any particular Charter right must be
measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises.

[12] The Defendant clearly holds a sincere belief that abortion is wrong which view is rooted in his Roman Catholic faith. What is less clear is how the requirement to file an Income Tax Return interferes, in a non trivial or non important way, with the freedom to practice his religion. For the cases quoted by both parties, Amselem and Multani there was a clear connection between the conduct in question (that is the construction of a succah and the wearing of a kirpon respectively) and the tenets of the religious right sought to be upheld. Amselem did say that a section 2(a) right could be triggered where the line of conduct was, in the claimant’s eyes, sufficiently necessary without proving that the practice was also objectively necessary in the eyes of the religion in question.

[13] However, in my view, the Defendant has failed to establish in the evidence presented any connection or religious requirement between filing or refusing to file a tax return and his Roman Catholic faith, which is the basis of his claim to religious freedom. [14] In my view, section 2(a) is not triggered, but even if it were, or if it could be said that there was some relationship between the two, I agree with the submissions of Crown Counsel contained in paragraph 44 to 56 his written submissions, that the Defendant has failed to demonstrate any interference with his religious freedom that is more than trivial or insubstantial.


http://morecanada.info/pdf/JUDGE_JACKSO ... gement.pdf

[cudgel]

You have no idea of knowing how the ability of anyone to use 794 of the criminal code make all of these bloated toads privately liable for even suggesting your a person as decribed in section 35 of the Interpretation Act put in place so law goons cannot twist the words. The contract is the signing for a Social Insurance Number It is an assumpsit contract only valid as long as you do not gain agreement privately as per a "Notice to Admit" that any move forward to threaten or intimidate you to violate your faith in the Bible the Queen swore to defend is a action under private liability as no legislation exists to allow intimidation to violate the commands of God. You can denounce God and the Bible all you wish, enjoy yourself, have a fire and dance naked around it! But take note!! You can never disprove that private liability ensues upon those officers of her Majesty that swore an Oath to be truly allegiant to her but in opposition to that oath Intimidate Nuisance or Obstruct men and women in their practising their faith bound duties travels and ministry. See Section 176,180,and 423 of their corporations code it as explains who is guilty for doing such things, You may wish to attack the QC lawyers who manufactured such law as I only post it for your expert evaluation albeit it is obviously biased and in no tangibly fair position to judge,,,

[Burnaby49]

You have no idea of knowing how the ability of anyone to use 794 of the criminal code make all of these bloated toads privately liable for even suggesting your a person as decribed in section 35 of the Interpretation Act put in place so law goons cannot twist the words. The contract is the signing for a Social Insurance Number It is an assumpsit contract only valid as long as you do not gain agreement privately as per a "Notice to Admit" that any move forward to threaten or intimidate you to violate your faith in the Bible the Queen swore to defend is a action under private liability as no legislation exists to allow intimidation to violate the commands of God. You can denounce God and the Bible all you wish, enjoy yourself, have a fire and dance naked around it! But take note!! You can never disprove that private liability ensues upon those officers of her Majesty that swore an Oath to be truly allegiant to her but in opposition to that oath Intimidate Nuisance or Obstruct men and women in their practising their faith bound duties travels and ministry. See Section 176,180,and 423 of their corporations code it as explains who is guilty for doing such things, You may wish to attack the QC lawyers who manufactured such law as I only post it for your expert evaluation albeit it is obviously biased and in no tangibly fair position to judge,,,

OK. My turn for "Huh?"

[Kestrel]

I think he got an early start on the Christmas cheer. Too bad the liquor stores are all closed tomorrow.

Sorry, Santa. The beer's already gone at that house. I hope he doesn't try to hitch a ride on the sleigh to get some more.

[Burnaby49]

I'd forgotten that we have a discussion thread on a Canadian taxpayer who tried, and failed, to defend himself against a criminal tax evasion charge by claiming that paying taxes offended his religious beliefs.

viewtopic.php?f=46&t=9129

As I said, Syndicat was a very important decision in respect to the right to practice your religious beliefs protected by the Canadian Charter of Rights and Freedom but it has no application in respect to paying taxes. I remember another case on this issue (just Tax Court, not criminal) but can't recall the name. A taxpayer who was a Quaker had no issues with paying taxes overall but, being a pacifist, said that she couldn't pay taxes to fund the Canadian Armed Forces. She, and other Quakers set up a trust fund to be used for peaceful purposes and they paid the portion (say 15%) of their taxes claimed used for military purposes into this. They remitted the remaining 85% to the government. The woman involved was considerd a test case for all of them.

They lost on the basis of tax law however the judge, in an obiter, said they failed in their objective on the basis of common sense logic. All Canadian federal income tax revenue goes into a general fund from which it is allocated to various government functions. So if you pay any amount of federal income tax it goes into a common pot used for all expenditures including the military. In this case if the woman paid only 85% of her total taxes owing then 15% of that reduced amount (12.75% of her total tax bill) still went to the military. The only way to avoid funding the military was to pay no tax at all.

[JamesVincent]

OK. My turn for "Huh?"

I feel your pain, I got a migraine trying to wade through both posts.

[JamesVincent]

They lost on the basis of tax law however the judge, in an obiter, said they failed in their objective on the basis of common sense logic. All Canadian federal income tax revenue goes into a general fund from which it is allocated to various government functions. So if you pay any amount of federal income tax it goes into a common pot used for all expenditures including the military. In this case if the woman paid only 85% of her total taxes owing then 15% of that reduced amount (12.75% of her total tax bill) still went to the military. The only way to avoid funding the military was to pay no tax at all.

Sounds kinda like what Cindy Sheehan tried to do. Except she didn't try to pay only part of her taxes, she refused to pay them all to avoid giving the military any.