Meanwhile, the government filed its response to the defendant’s motion for dismissal. Excerpts:
From footnote 1 of the government’s response:The defendant is a recidivist tax defier and felon who has persisted in his anti-tax activities despite a term of incarceration and repeated failures to judicially contest his legitimate tax obligations. In 1991, the defendant entered a plea of guilty to failure to file a return, in violation of 26 U.S.C. § 7203, and conspiracy to possess a destructive device, in violation of 18 U.S.C. § 371 and 26 U.S.C. §§ 5861, 5871. See United States v. Hendrickson, Crim. No. 91-80930 (E.D. Mich.). The conspiracy arose from the defendant’s participation in preparing a destructive device, wrapped in a padded envelope that was addressed to “The Tax Thieves” that was placed in a mail bin on April 16, 1991 as a form of violent anti-tax protest. Further, the government successfully secured a grant of summary judgment in a civil proceeding in which the defendant was ordered to return refunds erroneously issued to him for tax years 2002 and 2003 (two of the years at issue in this prosecution) and the defendant was permanently enjoined from filing any documents with the IRS that comport with the frivolous legal theories set forth in his anti-tax screed, “Cracking the Code.” See Amended Judgment and Order of Permanent Injunction, United States v. Hendrickson, Civ. No, 06-11753 (E.D. Mich. May 2, 2007).
And, from footnote 2 of the government’s response:It is curious to note that the defendant does not seek dismissal of the indictment on the grounds that the returns and Forms 4852 that he filed were correct as matter of law. The defendant unsuccessfully presented such arguments in a civil action involving his false 2002 and 2003 returns and the false Form 4852 that he filed with those returns. See United States v. Hendrickson, Civ. No. 06-11753 (NGE). In that proceeding, the United States sought injunctive relief and recovery of erroneous refunds issued to the defendant and his wife after they filed false returns and Form 4852 for each year. The Court granted the government’s motion for summary judgment, labeling the returns and Forms 4852 filed by the defendant and his wife as “deliberate misstatements”, Report and Recommendation, p. 9, and rejecting their legal arguments as “‘among an array of shopworn and quixotic arguments, having currency among so-called ‘tax protesters’, but without any support in the law.” Id., p. 7 (quoting Spencer v. Social Security Admin,, 2006 WL 695782, at *3 (E.D. Mich. 2006)).
The Sixth Circuit affirmed the grant of summary judgement and issuance of the injunction. The court rebuffed Hendrickson’s arguments that he was not an “employee” who received “wages” with the dismissive comment that it was “the typical tax protester argument that income is not taxable.” United States v. Hendrickson, No. 07-1510 (6th Cir. June 11, 2008). The Court later assailed the “patent baselessness” of the frivolous appeal lodged by the defendant and his wife and granted the government’s motion for an award of $4,000 in sanctions.
In its response, the government also states:Although anecdotal, counsel for the United States successfully prosecuted Roger Menner in the Eastern District of Virginia for following a similar scheme as the defendant. Menner operated his carpentry business as a sole proprietorship from 1991 through 1995 and 2001 through 2005 . Although he worked as a subcontractor and received compensation in years 1991 through 1995 that was reported to him on Forms 1099, he “rebutted” those amounts by filing false Forms 4852 that reported “zero” amounts paid and filed amended returns showing “zero” income from his business each of those years. He also filed returns for tax years 2001 through 2005 that reported “zero” business income. After a three-day trial, a jury convicted Menner of five counts of making and subscribing false returns for tax years 2001 through 2005, in violation of 26 U.S.C. § 7206(1), and one count of corruptly endeavoring to impede the administration of the Internal Revenue Code, in violation of 26 U.S.C. § 7212(a). See United States v. Menner, No 08-CR-322 (E.D.Va.). His sentencing is scheduled for February 20, 2009 in Richmond, Virginia.
Wish I could be there.....The Defendant claims that he is immune from prosecution because the First Amendment purportedly protects his “right” to file a return contrary to law in order to express his “honest disagreement” with the tax laws. Courts have recognized that when the speech in question – here, the making and subscribing of false returns and documents – constitutes the criminal act, the First Amendment provides no safe haven.
