The logic of Brushaber

[nattyb]

Someone said it matters not whether the income tax is direct or indirect. That is not exactly true. Here is the logic of Brushaber:

All Direct Taxes must be apportioned.
As held in Brushaber: an income tax is not to be taken out of the category of indirect taxes.
All Indirect Taxes must be uniform.
Conclusion: Since all income taxes are to be categorized as indirect taxes, an income tax need only be uniform to be constitutional.

That is Brushaber in a nutshell. To take anything else away from it is error.

[Famspear]

Someone said it matters not whether the income tax is direct or indirect. That is not exactly true. Here is the logic of Brushaber:

All Direct Taxes must be apportioned.
As held in Brushaber: an income tax is not to be taken out of the category of indirect taxes.
All Indirect Taxes must be uniform.
Conclusion: Since all income taxes are to be categorized as indirect taxes, an income tax need only be uniform to be constitutional.

That is Brushaber in a nutshell. To take anything else away from it is error.

It is correct to say that from the standpoint of the apportionment requirement, it does not matter whether the income tax is direct or indirect.

Again, the problem is that the tax protesters have litigated over the word "direct" as though had its ordinary, every day connotation -- as in, "the tax is being imposed directly on the taxpayer" and not, for example, "indirectly" through some corporation or other entity.

When tax protesters have tried to argue that the Sixteenth Amendment does not authorize a "direct" unapportioned tax on income, the courts have rejected that argument. Does that contradict the narrow holdings -- the decisions -- of the Court in Brushaber?

The answer is no.

First of all, if the tax protester is using the term "direct tax" to mean "a tax imposed directly on the taxpayer," the court is simply rejecting the argument -- correctly. In other words, if the taxpayer is really saying that the Sixteenth Amendment does not authorize a "direct unapportioned income tax imposed directly on the taxpayer," that argument is incorrect. Further, although the Amendment did not create a new category of permissible taxes, the Amendment does authorize the modern income tax -- the SAME income tax that would be included in the over all category of taxes, duties, imposts and excises in Article I.

Secondly, it is possible and proper for a modern lower court to stray from the rationale under which Brushaber was decided, without disturbing the decisions in Brushaber. In other words, a modern lower federal court could simply say, "Look, even if the Pollock Court in 1895 decided that a tax on, say, interest income is a 'direct' tax, the Sixteenth Amendment negates the significance of that tax BEING a 'direct' tax with respect to the apportionment requirement. If it's an income tax, it's not required to be apportioned, regardless of whether you or I or the Pollock Court or the Brushaber Court or anyone else ever has, ever will, or ever would consider the tax to be a 'direct tax' or not. Period."

The point that the Brushaber court considered all federal taxes to be indirect taxes does not significantly conflict -- from a LEGAL STANDPOINT -- with the point that a current-day federal court might reject a tax protester's argument that the modern federal income tax is a not direct tax in the process of arriving at a DECISION.

The "how" (or rationale) that is embodied in the PROCESS needs to be understood as being different from the DECISION at the end.

We have to understand the concept of judicial precedent and the concept of stare decisis. Rationale is important, but it is not the most important thing. What the court "said" is important, but most of what a court "says" in its opinion is usually not part of the holding or holdings in the case. What is most important in studying case law is not the rationale used by the court. What is most important in studying case law is not most of what the court "said." What is most important is not "HOW" the court arrived at its decision.

What is most important is the decision itself. What is most important is the decision -- the "detailed legal consequence following a detailed set of facts".

[Famspear]

Stated yet another way (and I believe I'm close to beating a dead horse here), a lower federal court today, in the process of explaining itself, could stray from the LOGIC (the rationale) under which the Brushaber case was decided (as at least one court may have done, if I recall correctly) while still following the three HOLDINGS -- the three DECISIONS -- of the Brushaber Court.

[nattyb]

What is most important is not "HOW" the court arrived at its decision.

What is most important is the decision itself. What is most important is the decision -- the "detailed legal consequence following a detailed set of facts".

If that were true, there would be no need for opinions.
It is the HOW these opinions are rationalized that give so many of these duped TPs hope that someday the courts will change their opinion. The problem with so many duped TPs is that they don't know logic. All they have are fervently held opinions. And I have talked to many intelligent TPs like lawyers Larry Becraft and Jeff Dickstein.

[nattyb]

I agree. Brushaber will never be overturned without a constitutional amendment. But there are so many other close decisions that are hinged upon every word in the decision and how it was decided. See Roe v. Wade for instance.

[Famspear]

What is most important is not "HOW" the court arrived at its decision.

What is most important is the decision itself. What is most important is the decision -- the "detailed legal consequence following a detailed set of facts".

If that were true, there would be no need for opinions.
It is the HOW these opinions are rationalized that give so many of these duped TPs hope that someday the courts will change their opinion. The problem with so many duped TPs is that they don't know logic. All they have are fervently held opinions. And I have talked to many intelligent TPs like lawyers Larry Becraft and Jeff Dickstein.

Well, my statement is true. I'm describing how the legal system works. In court opinions, the courts explain not only their decisions, but also how they arrived at their decisions. How the courts arrive at their decisions is important. What I am saying in that the "how" -- the logic embodied in the process of moving toward the decision -- is not as important as the decision itself.

And, I agree that most tax protesters have no clue about legal logic. Jamey is a classic example. He can't seem to accept that his "analysis" of Brushaber is incorrect in part because he is focusing on the dicta (the explanations) rather than the holdings (the narrow decisions).

I believe Becraft and Dickstein do understand proper legal logic, but they are so emotionally involved in their anti-tax feelings that they have felt compelled to present frivolous arguments in various court cases over the years. Dickstein is far worse than Becraft. I get the impression that Becraft is the more "logical" of the two.

[NYGman]

In court opinions, the courts explain not only their decisions, but also how they arrived at their decisions. How the courts arrive at their decisions is important. What I am saying in that the "how" -- the logic embodied in the process of moving toward the decision -- is not as important as the decision itself.

I think that is the biggest mistake they make. Well that and horribly misrepresenting the parts they do quote, by either omission or using things out of context or both. Come to think of it, good TP are able to read the opposite in almost every case out there, so at the end of the day, it is a basic failure to understand how the common law works, which is odd, as many of them believe in common law (Well common law and UCC, which is actually a code, which is more indicative of civil law.)

[LPC]

Here is the logic of Brushaber:

All Direct Taxes must be apportioned.
As held in Brushaber: an income tax is not to be taken out of the category of indirect taxes.
All Indirect Taxes must be uniform.
Conclusion: Since all income taxes are to be categorized as indirect taxes, an income tax need only be uniform to be constitutional.

I would put it slightly differently:

1. All "direct" taxes must be apportioned.
2. All "indirect" taxes must be uniform.
3. The 16th Amendment says that taxes on income need not be apportioned.
4. Therefore, taxes on income must be "indirect."
5. Therefore, taxes on income must be uniform.

[wserra]

While I agree with Dan as to the reasoning of Brushaber, the decision has always seemed to me unnecessarily convoluted. All you need:

(1) Income taxes are (and always have been) indirect, and per Art 1, sec 8, cl 1, must therefore be uniform.

(2) Thanks to the Sixteenth Amendment, we no longer care if taxes on income from property or any other source might be direct. Sorry, tax lawyers.

(3) The end.

[Famspear]

While I agree with Dan as to the reasoning of Brushaber, the decision has always seemed to me unnecessarily convoluted. All you need:

(1) Income taxes are (and always have been) indirect, and per Art 1, sec 8, cl 1, must therefore be uniform.

(2) Thanks to the Sixteenth Amendment, we no longer care if taxes on income from property or any other source might be direct. Sorry, tax lawyers.

(3) The end.

Agreed. And in my opinion it's one of the worst examples of writing (of any kind, not just law-related materials) I have ever seen, in terms of convoluted sentence structure.

[Micheal360]

Brushaber had purchased stock issued by the company. He then sued the company to recover taxes that Congress had imposed upon the dividends paid to its stockholders. The U.S. Supreme Court ruled against Frank Brushaber, and upheld the tax as a lawful excise, or indirect tax.

The most interesting result of the Court’s ruling was a Treasury Decision (“T.D.”) that the U.S. Department of the Treasury later issued as a direct consequence of the high Court’s opinion. In T.D. 2313, the U.S. Treasury Department expressly cited the Brushaber decision, and it identified Frank Brushaber as a “nonresident alien” and the Union Pacific Railroad Company as a “domestic corporation”. This Treasury Decision has never been modified or repealed.

In Lord v. Kelley, 240 F.Supp. 167, 169 (1965), the federal judge in that case was honest enough to admit, in his published opinion, that federal judges routinely rule in favor of the IRS, because they fear the retaliation that might result from ruling against the IRS. There you have it, from the horse’s mouth!

In the case of People v. Boxer (December 1992), docket number #S-030016, U.S. Senator Barbara Boxer fell totally silent in the face of an Application to the California Supreme Court by the People of California, for an ORDER compelling Senator Boxer to witness the material evidence against the so-called 16th amendment.

That so‑called “amendment” allegedly authorized federal income taxation, even though it contains no provision expressly repealing two Constitutional Clauses mandating that direct taxes must be apportioned. The Ninth Circuit Court of Appeals and the U.S. Supreme Court have both ruled that repeals by implication are not favored. See Crawford Fitting Co. et al. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987).

[Famspear]

Brushaber had purchased stock issued by the company. He then sued the company to recover taxes that Congress had imposed upon the dividends paid to its stockholders. The U.S. Supreme Court ruled against Frank Brushaber, and upheld the tax as a lawful excise, or indirect tax.

The most interesting result of the Court’s ruling was a Treasury Decision (“T.D.”) that the U.S. Department of the Treasury later issued as a direct consequence of the high Court’s opinion. In T.D. 2313, the U.S. Treasury Department expressly cited the Brushaber decision, and it identified Frank Brushaber as a “nonresident alien” and the Union Pacific Railroad Company as a “domestic corporation”. This Treasury Decision has never been modified or repealed.

No, the only thing that's interesting about the TD is that tax protesters have used it to make silly arguments about the federal income tax. Whether Frank Brushaber was a nonresident alien is irrelevant to the holdings in the case. Sorry, but we've seen this before.

In Lord v. Kelley, 240 F.Supp. 167, 169 (1965), the federal judge in that case was honest enough to admit, in his published opinion, that federal judges routinely rule in favor of the IRS, because they fear the retaliation that might result from ruling against the IRS. There you have it, from the horse’s mouth!

No, federal judges do not routinely rule in favor of the IRS "because they fear retaliation." That's another myth perpetrated by tax protesters. I have dealt with many, many IRS personnel and I have stood before federal judges. Anyone who thinks that the typical IRS employee would even consider retaliating against a federal judge is delusional.

In the case of People v. Boxer (December 1992), docket number #S-030016, U.S. Senator Barbara Boxer fell totally silent in the face of an Application to the California Supreme Court by the People of California, for an ORDER compelling Senator Boxer to witness the material evidence against the so-called 16th amendment.

That's utter nonsense. And, by the way, there is no "material evidence" against the 16th Amendment. That's meaningless tax protester rhetoric.

That so‑called “amendment” allegedly authorized federal income taxation, even though it contains no provision expressly repealing two Constitutional Clauses mandating that direct taxes must be apportioned. The Ninth Circuit Court of Appeals and the U.S. Supreme Court have both ruled that repeals by implication are not favored. See Crawford Fitting Co. et al. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987).

Again, utter nonsense. As legal commentator Daniel Evans has noted, constitutional amendments are not generally worded with language that "expressly repeals" clauses in the Constitution. Indeed, there is only one constitutional amendment that does that.

Sorry, newbie, but you don't know what you're talking about.

[Famspear]

In Lord v. Kelley, here is what Judge Wyzanski actually wrote:

More than once the judges of a court have been indirectly reminded that they personally are taxpayers. No sophisticated person is unaware that even in this very Commonwealth the Internal Revenue Service has been in possession of facts with respect to public officials which it has presented or shelved in order to serve what can only be called political ends, be they high or low. And a judge who knows the score is aware that every time his decisions offend the Internal Revenue Service he is inviting a close inspection of his own returns. But I suppose that no one familiar with this Court believes that intimidation, direct or indirect, is effective.

--from Lord v. Kelley, 240 F. Supp. 167 (D. Mass. 1965).

[Famspear]

...
The most interesting result of the Court’s ruling was a Treasury Decision (“T.D.”) that the U.S. Department of the Treasury later issued as a direct consequence of the high Court’s opinion. In T.D. 2313, the U.S. Treasury Department expressly cited the Brushaber decision, and it identified Frank Brushaber as a “nonresident alien” and the Union Pacific Railroad Company as a “domestic corporation”. This Treasury Decision has never been modified or repealed.

Oh, and I forgot to mention:

Treasury Decision 2313, T.D. 2313 (March 21, 1916) does NOT identify Frank Brushaber as a "nonresident alien." The document does not even mention him.

It also does NOT identify the Union Pacific Railroad as a "domestic corporation" (although the company almost certainly was a domestic corporation). And the only reference to the Union Pacific Railroad is in the citation to the case contained in the text of the decision.

Again, another example of people copying and pasting nonsense from tax protester materials.

And don't contradict me. I have a copy of T.D. 2313 in front of me.

[Micheal360]

Brushaber had purchased stock issued by the company. He then sued the company to recover taxes that Congress had imposed upon the dividends paid to its stockholders. The U.S. Supreme Court ruled against Frank Brushaber, and upheld the tax as a lawful excise, or indirect tax.

The most interesting result of the Court’s ruling was a Treasury Decision (“T.D.”) that the U.S. Department of the Treasury later issued as a direct consequence of the high Court’s opinion. In T.D. 2313, the U.S. Treasury Department expressly cited the Brushaber decision, and it identified Frank Brushaber as a “nonresident alien” and the Union Pacific Railroad Company as a “domestic corporation”. This Treasury Decision has never been modified or repealed.

No, the only thing that's interesting about the TD is that tax protesters have used it to make silly arguments about the federal income tax. Whether Frank Brushaber was a nonresident alien is irrelevant to the holdings in the case. Sorry, but we've seen this before.

In Lord v. Kelley, 240 F.Supp. 167, 169 (1965), the federal judge in that case was honest enough to admit, in his published opinion, that federal judges routinely rule in favor of the IRS, because they fear the retaliation that might result from ruling against the IRS. There you have it, from the horse’s mouth!

No, federal judges do not routinely rule in favor of the IRS "because they fear retaliation." That's another myth perpetrated by tax protesters. I have dealt with many, many IRS personnel and I have stood before federal judges. Anyone who thinks that the typical IRS employee would even consider retaliating against a federal judge is delusional.

In the case of People v. Boxer (December 1992), docket number #S-030016, U.S. Senator Barbara Boxer fell totally silent in the face of an Application to the California Supreme Court by the People of California, for an ORDER compelling Senator Boxer to witness the material evidence against the so-called 16th amendment.

That's utter nonsense. And, by the way, there is no "material evidence" against the 16th Amendment. That's meaningless tax protester rhetoric.

That so‑called “amendment” allegedly authorized federal income taxation, even though it contains no provision expressly repealing two Constitutional Clauses mandating that direct taxes must be apportioned. The Ninth Circuit Court of Appeals and the U.S. Supreme Court have both ruled that repeals by implication are not favored. See Crawford Fitting Co. et al. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987).

Again, utter nonsense. As legal commentator Daniel Evans has noted, constitutional amendments are not generally worded with language that "expressly repeals" clauses in the Constitution. Indeed, there is only one constitutional amendment that does that.

Sorry, newbie, but you don't know what you're talking about.

Your funny Famspear! Are you going to run for office in 2016? Those quotes are from President Reagan: Grace Report Results Addressing FED-IRS Fraud. LOL.... Come on now! I have been reading your replays, your

[Famspear]

Your [sic] funny Famspear! ..... Those quotes are from President Reagan: Grace Report Results Addressing FED-IRS Fraud. LOL....

No, they're not. Again, you don't know what you're talking about.

[NYGman]

Was People v. Boxer even a real case? isn't it one of those tax protestors trying to get some fame by taking a public official to court in order to prove the income tax a lie? I suspect it was dismissed and had no real relevance outside the tax protestor world.

[Famspear]

Was People v. Boxer even a real case? isn't it one of those tax protestors trying to get some fame by taking a public official to court in order to prove the income tax a lie? I suspect it was dismissed and had no real relevance outside the tax protestor world.

I haven't had a chance to run that one down. I can tell you that Mitch Modeleski (aka Paul Andrew Mitchell) has a page on his web site on this.

That tells me volumes.

[NYGman]

Was People v. Boxer even a real case? isn't it one of those tax protestors trying to get some fame by taking a public official to court in order to prove the income tax a lie? I suspect it was dismissed and had no real relevance outside the tax protestor world.

I haven't had a chance to run that one down. I can tell you that Mitch Modeleski (aka Paul Andrew Mitchell) has a page on his web site on this.

That tells me volumes.

Just looked it up, he was the representative for "the people" see #2 here http://www.supremelaw.org/cc/boxer/index.htm not to mention http://supremelaw.org is the only place i can find any information on this. looking through it, it is a load of ______. (Readers choice)

Love this https://archive.org/details/ModeleskiCompOrder on PAM

[Famspear]

Oops, I see NYGman beat me to it.

Yep, I found this on the Modeleski web site:

http://www.supremelaw.org/cc/boxer/petition.htm

THE PEOPLE OF THE CALIFORNIA ) Number S-030016
REPUBLIC, ex relatione, )
)
MITCHELL P. MODELESKI, ) PETITION
Petitioner At Law ) for a Peremptory Writ of Mandamus
) to compel the performance
v. ) of a duty owed to
) Petitioner
BARBARA BOXER, )
Respondent at Law

This is the case our newest village idiot is talking about.

This nonsense even includes an affidavit from fraudster William Benson, the most famous of all the crooks involved in the "Sixteenth Amendment was never ratified" scam.



EDIT: The spacing and formatting for that caption got messed up when I copied and pasted it. But, you get the idea. Actually, considering PAM's ummmm, shall we say.... "condition"..... what difference does it make?