Blowhard's Petition for En Banc Re-Hearing of Appeal

[Famspear]

You can forget Springer if you want to -- but you don't have to.

From the United States Supreme Court:

The central and controlling question in this case is whether the tax which was levied on the income, gains, and profits of the plaintiff in error [i.e., the appellant, William Springer] [ . . .] is a direct tax [ . . .]

[. . . ]

The question, what is a direct tax, is one exclusively in American jurisprudence. The text-writers of the country are in entire accord upon the subject.

[ . . . ] Our conclusions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complains [i.e., the federal income tax on the income of William Springer] is within the category of an excise or duty.

--Springer v. United States, 102 U.S. 586 (1881).

Now all you have to do is explain how the court in Pollock could have ruled they way they did and still be consistent with what you think the court said in Springer. As far as I see it, either Pollock overruled Springer or the court was referring to Springers income only and not taxes on the revenue of individuals in general. In fact I believe its the later because the court in Pollock specifically addressed the Springer case and determined where his income came from. If that were not the case Springer would be controlling for all taxes relating to income and only "capitation taxes, as expressed in that instrument, and taxes on real estate" would be direct end of story. Now if you claim that the Pollock court found that the income tax was in substance a tax on real estate then certainly a tax relating to the wages of labor would be a tax on people, capitation tax or head tax being synonymous, which we all agree requires a direct tax and thus overruled Springer.

Surprise! You are too predictable, Stevie! I think we've been through this before.

In Pollock, the Court overruled the Springer decision -- but only with respect to a tax on income from property (an income tax on interest, dividends, rent) - -by ruling that a tax on interest, dividends and rents would be TREATED as a direct tax. The Pollock Court specifically noted that a tax on income from employment was still considered an indirect tax. Indirect taxes are not required to be apportioned. A crucial point in Pollock was that the SOURCE of the income suddenly became legally relevant in determining whether the tax was required to be apportioned. If the income was interest, dividends, or rents, then the tax was required to be apportioned (from about 1895 to 1913).

The Sixteenth Amendment (in 1913) overruled the Pollock decision by stating that Congress has the power to tax incomes, from WHATEVER SOURCE, without apportionment, etc.

Since 1913, various lines of cases have developed: One line of cases treats the Amendment as having pulled the income tax on interest, dividends and rents from the "direct" category and put it "back" into the indirect category where it really "belonged" (essentially, reinstituting the Springer holding IN FULL -- so you don't have to "forget" Springer).

Another line of cases treats the Amendment as essentially having made the direct/indirect dichotomy legally irrelevant with respect to the apportionment requirement (cases like Francisco, for example).

In a sense, the two lines of cases are contradictory. Yet BOTH LINES OF CASES ARE CORRECT. Yes, there IS SOMETHING SORT OF LIKE "QUANTUM THEORY" in U.S. federal law! This is one of the puzzles that you seem unable to come to grips with, Steve. (It's something in your own personality that seems to be giving you fits.)

Either way, the result is the same. Congress may legally impose a tax on income from whatever source derived, and may do so without having to apportion the tax.

[Famspear]

SteveSy wrote:

Now if you claim that the Pollock court found that the income tax was in substance a tax on real estate then certainly a tax relating to the wages of labor would be a tax on people, capitation tax or head tax being synonymous . . .

God, Steve, what a mess....

Neither the Pollock court nor any other federal court has ever ruled that that a tax relating to the wages of labor would be a capitation tax (or head tax).

Steve, re-read my discussion of Pollock. And take your vitamins.

[Cpt Banjo]

It can be discovered.....see:

Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labour, and are attended with all the inconveniences of such taxes.

- Adam Smith 1776, Smith quoted in Hilton v. U.S

Adam Smith isn't the law. In fact, Mr. Springer cited Smith's writings in urging the Supreme Court to hold the income tax was a direct tax, but the Court rejected his argument. Also note what Smith said: capitation taxes on lower ranks are direct taxes on wages. What he didn't state was the reverse: that taxes on wages are capitation taxes. Is anyone surprised about this blatant logical error? I didn't think so.

[Judge Roy Bean]

In our part of the world we are sometimes almost overrun (overflown?) with doves. Part of living where we live involves feeding wild critters, including the four legged variety as well as birds. Some of these naturally wind up as food for the red tail and sharp-shinned hawks as well as owls who have chosen our area for their homes. (Mrs. Bean hates it when I say we raise "hawk food.")

We have wire mesh enclosures set up to keep the pigeons, crows, raccoons and possums from stealing all the food. The feeders hang inside and the smaller birds (blackbirds, jays, cardinals, sparrows, finches, etc.) can get in and out easily.

Then there's doves. The feeders aren't set up to let a dove perch. And why they can somehow find a way in through the mesh, they can't get themselves back out. They'll give up trying the feeders and march around on the ground pecking at what little falls. Then when you go out there to refill the feeders they damn near beat themselves to death against the mesh until they drop to the ground and freeze. You open the enclosure and then have to walk around into the other side and shoo them out. Even if they've been trapped in there all afternoon and overnight they just don't learn to not go in.

It seems to me that tax deniers are like our flock of doves. They're just too dumb to get themselves out once they're in and when they're spooked they'll beat themselves into shreds trying. No wonder they're the hawk's favorite food.

[Lasagna]

Let's try a different approach.

Steve, the U.S. Supreme Court recently overturned Washington's D.C.'s total ban on handguns as an unconstitutional violation of the Second Amendment. The Court held that the Constitution provides an individual with the right to bear arms, rather than a right that applies only to a state militia.

For the moment, let's leave aside the question of how narrow or broad this decision actually is, and for the purposes of this discussion, simplify it to this: the Supreme Court held that a law which places a total ban on handguns is an unconstitutional law.

I, personally, feel that this was a terrible decision of the Supreme Court. It was a 5-4 ruling; I agree with the four dissenters, for most of the reasons they state, plus my own personal, non-legal ideals. From a constitutional perspective, I believe that the Second Amendment gives the government enough leeway for a total ban on handguns. From a public safety perspective, I believe that a ban of handguns in DC was a good idea. From a moral perspective, I believe it is the right thing to do. From a practical perspective, I would like to see these laws left to local decision makers - at the state level, at the municipal level, whatever.

However, now that the Supreme Court has decided that a law which places a total ban on handguns is unconstitutional, a law which places a total ban on handguns is unconstitutional. I can still fight against it, if I like, in many different ways - as a citizen I can argue for a constitutional amendment allowing such a ban; as a lawyer I can help municipalities write gun control laws as narrowly as possible, but which takes into consideration the recent decision; if I want to be radical about it, I can run for office, and, after winning, pass a ban on handguns and refuse to obey the Supreme Court decision. Nothing that I do, however, alters the fact that a law which places a total ban on handguns is unconstitutional. It's just a fact, and arguing otherwise is stupid, since the decision has already been made. That's the way the system is set up. It's theoretically possible that the Court will reverse itself down the line, but for now, any law which places a total ban on handguns is unconstitutional, plain and simple.

The decisions on the constitutionality of the federal income tax, since there is far more precedent than there is about gun control laws, are even more clear. It's constitutional. Your reading of the caselaw is tortured and twisted beyond belief; there just isn't room for argument. If I were to argue that the USSC's handgun-decision doesn't apply past the block on which the plaintiff lives, or that it only applies to the specific handgun the plaintiff owns, I would be arguing at about your level. It's a pointless, obviously incorrect argument, and doesn't add anything to the public discourse. I can take a moral stand against allowing ownership of handguns in DC while still acknowledging that, because of the USSC, there is a constitutional right to do so. You can take a moral stand against the federal income tax while acknowledging that such a tax is clearly constitutional.

And don't bother to jump all over the "it is theoretically possible that the Court will reverse itself." It's only theoretical. There's an outside chance they will about gun control laws, I suppose, or at least narrow the decision further. Absent a lunatic president appointing a bunch of fellow nutjobs to the court, however, the chance of it ever declaring the federal income tax unconstitutional is zilch.

[Famspear]

Let’s look at what the late Boris Bittker (law professor at Yale Law School) and friends had to say….

In Springer, the Court unanimously upheld the validity of the Civil War income tax, which embraced "the annual gains, profits, and income of every person...whether derived from any kind of property, rents, interests, dividends, or salaries, or from any profession, trade, employment, or vocation...or from any other source whatever."

[ . . . ]

In the first Pollock case, however, the Court held, six to two (one justice not sitting), that the 1894 federal income tax was unconstitutional insofar as it taxed income from real estate: [ . . . ] "....An annual tax upon the annual value or annual user of real estate appears to us the same in substance as an annual tax on the real estate, which would be paid out of the rent or income. The Court distinguished Springer because in that case none of the taxpayer's income was derived from real estate--a factual distinction that probably would have seemed immaterial to the Springer Court.

[ . . .]

In an opinion on rehearing, the Court reaffirmed the previous holding as to income from real estate by a vote of five to four. The same five justices agreed that a tax on income from personal property (e.g., dividends and interest) was an invalid direct tax.

[ . . . .]

Pollock is often described as a "judicial veto" preventing Congress from taxing income until the Sixteenth Amendment was adopted in 1913. In fact, however, the decision intimated that a tax on salaries, wages, and business profits would not be a "direct tax" and hence would not have to be apportioned, thus leaving Congress free to tax income from these sources if it was willing to exempt unearned income. While unearned income is only a small fraction of total national income, it becomes an increasingly important component of individual income as income rises; and this meant that taxing earned income but not income from investments was not politically acceptable.

[ . . . ]

In February 1913, two years after the constitutionality of the 1909 corporate income tax was decided by the Supreme Court, the Sixteenth Amendment to the Constitution was duly ratified. Henceforth, any discussion of the direct tax clause of Article I would have to take account of the new amendment: "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."

[ . . . ]

As construed by the Supreme Court in the Brushaber case, the power of Congress to tax income derives from Article I, Section 8, Clause 1, of the original Constitution rather than from the Sixteenth Amendment; the latter simply eliminated the requirement that an income tax, to the extent that it is a direct tax, must be apportioned among the states.

--Boris I. Bittker, Martin J. McMahon, Jr., Lawrence A. Zelenak, Federal Income Taxation of Individuals, Second Edition Current Through 2005. Copyright (c) 2006 by RIA (footnotes omitted), 2002 WL 1454829 (W.G.&.L.) (bolding added).

EDIT: Note that all the income taxes litigated in the Springer and Pollock cases were, indeed, unapportioned taxes. The material must be read in that light.

[SteveSy]

As construed by the Supreme Court in the Brushaber case, the power of Congress to tax income derives from Article I, Section 8, Clause 1, of the original Constitution rather than from the Sixteenth Amendment; the latter simply eliminated the requirement that an income tax, to the extent that it is a direct tax, must be apportioned among the states

All I can say is Boris is wrong for the many reasons explained in the Brushaber case...seriously this can not be any more clear.

We are of opinion, however, [240 U.S. 1, 11] that the confusion is not inherent, but rather arises from the conclusion that the 16th Amendment provides for a hitherto unknown power of taxation; that is, a power to levy an income tax which, although direct, should not be subject to the regulation of apportionment applicable to all other direct taxes. And the far-reaching effect of this erroneous assumption will be made clear
...
But it clearly results that the proposition and the contentions [240 U.S. 1, 12] under it, if acceded to, would cause one provision of the Constitution to destroy another; that is, they would result in bringing the provisions of the Amendment exempting a direct tax from apportionment into irreconcilable conflict with the general requirement that all direct taxes be apportioned. Moreover, the tax authorized by the Amendment, being direct, would not come under the rule of uniformity applicable under the Constitution to other than direct taxes, and thus it would come to pass that the result of the Amendment would be to authorize a particular direct tax not subject either to apportionment or to the rule of geographical uniformity, thus giving power to impose a different tax in one state or states than was levied in another state or states. This result, instead of simplifying the situation and making clear the limitations on the taxing power, which obviously the Amendment must have been intended to accomplish, would create radical and destructive changes in our constitutional system and multiply confusion.

- BRUSHABER v. UNION PACIFIC R. CO., 240 U.S. 1 (1916)

Apparently being a law professor doesn't necessarily mean you're capable of understanding Supreme Court cases. Its very clear he's wrong, it says so right above and why.

[Famspear]

As construed by the Supreme Court in the Brushaber case, the power of Congress to tax income derives from Article I, Section 8, Clause 1, of the original Constitution rather than from the Sixteenth Amendment; the latter simply eliminated the requirement that an income tax, to the extent that it is a direct tax, must be apportioned among the states

All I can say is Boris is wrong for the many reasons explained in the Brushaber case...seriously this can not be any more clear.

We are of opinion, however, [240 U.S. 1, 11] that the confusion is not inherent, but rather arises from the conclusion that the 16th Amendment provides for a hitherto unknown power of taxation; that is, a power to levy an income tax which, although direct, should not be subject to the regulation of apportionment applicable to all other direct taxes. And the far-reaching effect of this erroneous assumption will be made clear
...
But it clearly results that the proposition and the contentions [240 U.S. 1, 12] under it, if acceded to, would cause one provision of the Constitution to destroy another; that is, they would result in bringing the provisions of the Amendment exempting a direct tax from apportionment into irreconcilable conflict with the general requirement that all direct taxes be apportioned. Moreover, the tax authorized by the Amendment, being direct, would not come under the rule of uniformity applicable under the Constitution to other than direct taxes, and thus it would come to pass that the result of the Amendment would be to authorize a particular direct tax not subject either to apportionment or to the rule of geographical uniformity, thus giving power to impose a different tax in one state or states than was levied in another state or states. This result, instead of simplifying the situation and making clear the limitations on the taxing power, which obviously the Amendment must have been intended to accomplish, would create radical and destructive changes in our constitutional system and multiply confusion.

- BRUSHABER v. UNION PACIFIC R. CO., 240 U.S. 1 (1916)

Apparently being a law professor doesn't necessarily mean you're capable of understanding Supreme Court cases. Its very clear he's wrong, it says so right above and why.

No, it says that Bittker is right. Read it again.

[Famspear]

Steve, just for fun, why don't you remind us about your theory as to why Frank Brushaber lost the case. Why did the Supreme Court rule against him?

[Lasagna]

Apparently being a law professor doesn't necessarily mean you're capable of understanding Supreme Court cases. Its very clear he's wrong, it says so right above and why.

Yes, Steve. All the law professors, judges, magistrates, prosecutors, tax lawyers, other lawyers, accountants, Congressmen and IRS employees misunderstand the caselaw. Only you have managed to figure out the truth. Only you and the legion of tax protesters have managed to figure out that when the court in Brushaber held that "in express terms the Amendment provides that income taxes, from whatever source the income may be derived, shall not be subject to the regulation of apportionment” it meant something other than it said. Man, those three years at Columbia law school were a total waste of time for me.

[SteveSy]

Apparently being a law professor doesn't necessarily mean you're capable of understanding Supreme Court cases. Its very clear he's wrong, it says so right above and why.

Yes, Steve. All the law professors, judges, magistrates, prosecutors, tax lawyers, other lawyers, accountants, Congressmen and IRS employees misunderstand the caselaw. Only you have managed to figure out the truth.

Sorry to disappoint the quote above in the previous post proves him wrong, there is no misunderstanding it if you can read. I'm not sure what you think "erroneous assumption" means but in my book it mean its faulty. btw, not all professors take his view on the 16th, in fact I would doubt many do that have basic English skills.

[Lasagna]

. btw, not all professors take his view on the 16th, in fact I would doubt many do that have basic English skills.

Really! Fascinating. I didn't know that you were so knowledgable about the academic world, Steve.

Name one, please.

[Famspear]

Yeah, Steve, you supposedly believe you are right and Professor Boris Bittker of all people is wrong. So, explain to us why Frank Brushaber, the appellant, lost the case. Frank Brushaber argued that the unapportioned federal income tax was unconstitutional, on a variety of grounds. He lost the case at the trial court. On direct appeal to the U.S. Supreme Court, the Court affirmed the decision against Frank Brushaber. The Court upheld the constitutionality of the federal income tax.

And while you're at it, since you believe your reading skills are so much better than those of Professor Boris Bittker, one of the most famous tax law professors of all, tell us what you believe the "erroneous assumption" was -- the erroneous assumption to which the Court was referring. And tell us whose erroneous assumption it was. (Hint: Can you say "Frank Brushaber"?)

You have dug yourself into your umpteenth hole here in the Quatloos forum. So tell, us Steve, what's your big goofy theory about why the Court upheld the unapportioned federal income tax in Brushaber?

Let's have some fun!

[Evil Squirrel Overlord]

Steve has us folks.... Should we tell him what the 16th Amendment as passed says?

The Congress and President heretoforth seceeds all legislative and executive power to the Illuminati Court in perpetuity, althought the Congress and President will still exist. All powers are removed from the people, ther right of petition is hereby voided, all taxation powers will be transfered from maritime courts to the Internal Revenue Service. They shall have power to lay and collect taxes from whatever source derived, including income without apportionment among the several States, and without regard to any census or enumeration.

[SteveSy]

Steve, just for fun, why don't you remind us about your theory as to why Frank Brushaber lost the case. Why did the Supreme Court rule against him?

#1 reason is that a tax on the activities of a corporation regardless of activity is an indirect tax plain and simple, always has been always will be. The taxation of an activity of a corporation clearly falls within the common definition of an excise. His challenges to the 16th were also flawed, one being Boris's contention that the 16th creates a new power of taxation relating to direct taxes one not requiring apportionment and thus also excluding the rule of uniformity.

[Famspear]

Steve, just for fun, why don't you remind us about your theory as to why Frank Brushaber lost the case. Why did the Supreme Court rule against him?

#1 reason is that a tax on the activities of a corporation regardless of activity is an indirect tax plain and simple, always has been always will be. The taxation of an activity of a corporation clearly falls within the common definition of an excise. His challenges to the 16th were also flawed, one being Boris's contention that the 16th creates a new power of taxation relating to direct taxes one not requiring apportionment and thus also excluding the rule of uniformity.

No, Steve, answer the question. The Court in Brushaber never talked about a tax on the activities of a corporation being an indirect tax. That point was not even raised. The phrase "activities of a corporation" isn't even found in the text of Brushaber. You just made that up.

No, Steve, you are supposed to be a better reader than Professor Boris Bittker. Answer the question. Why did Frank Brushaber lose the case? Why did the Court uphold the unapportioned income tax?

EDIT: Steve, I assume you meant "Frank Brushaber's contention", not "Boris's". I'll give you the benefit of the doubt. And Brushaber's arguments were certainly ruled to be flawed. So, tell us why he lost the case.

[SteveSy]

Whate SteveSy fails to realize or acknowledge is that even IF he were correct, it doesn't mean jack-sh*t. He is not somebody who can affect the law, like a legislator, lawyer, or judge.

I never said it means jack-sh*t. However if enough people realize that the government is filling their head with BS so they can extract trillions of dollars from them maybe they'll demand it stop. It's kind of like having cops in a town arbitrarily stop people and search their car to find out if they're doing something wrong. They do this so long and often that people just accept that its the law. Someone moves in to town and stars stirring the pot and telling people its BS, they need a valid reason to stop people. People at first dismiss this loony, its been done this way for years even the town council and all of the judges have always supported the activity. After a while a few people start to look and realize this loony has merit in his arguments, its supported by meaningful facts. All the courts do is simply tell people their wrong and continue on with their operation. After a while enough people realize their town government is full of crap, even if the activity has bagged every drug dealer in town, lots of innocent people were treated unfairly in the process.

Its my position simply exposing the BS is enough, besides its fun watching most of you show how programmed an controlled you are. Most of you have almost completely lost the ability to think for yourself. You believe you're free but only because they've told you you are.

[The Observer]

Steve, just for fun, why don't you remind us about your theory as to why Frank Brushaber lost the case. Why did the Supreme Court rule against him?

#1 reason is that a tax on the activities of a corporation regardless of activity is an indirect tax plain and simple, always has been always will be. The taxation of an activity of a corporation clearly falls within the common definition of an excise. His challenges to the 16th were also flawed, one being Boris's contention that the 16th creates a new power of taxation relating to direct taxes one not requiring apportionment and thus also excluding the rule of uniformity.

You malevolent rodent - you were sworn to secrecy to never reveal any of this. This is what happens when you allow diversity into the Illuminati - the chattering chipmunks start giving it all away.

[SteveSy]

No, Steve, you are supposed to be a better reader than Professor Boris Bitter. Answer the question. Why did Frank Brushaber lose the case? Why did the Court uphold the unapportioned income tax?

Becuase he was wrong about how the 16th constitutionally operated? The tax in question, a tax on the income of a corporation, was an indirect tax not requiring apportionment to begin with?

First line of the case:

As a stockholder of the Union Pacific Railroad Company, the appellant filed his bill to enjoin the corporation from complying with the income tax provisions of the tariff act of October 3, 1913 ( II., chap. 16, 38 Stat. at L. 166).

You tell me Famspear, I've given you my answer....

[The Observer]

Its my position simply exposing the BS is enough, besides its fun watching most of you show how programmed an controlled you are. Most of you have almost completely lost the ability to think for yourself. You believe you're free but only because they've told you you are.

And this is why you are not going to get an answer to your question, Famspear. We have been down this road a million times with Stevesy and everytime the hard question gets put to Steve, he goes into stall formation hoping that the thread limit hits 100 and he gets to go home with a tie. Notice that he is now reverting back to his allegation that all of this is a conspiracy among the judges and that they are bending over backwards to keep everyone else in the dark.

Locking the thread here, but you are welcome to try pin Stevesy down in a continuation of the thread.