"A good faith belief..."

[Demosthenes]

I'll tell you how I know he believes what he says: There was a site where he was interviewed, I believe, and he recited the whole 861 argument FROM MEMORY--about 5 single spaced pages worth, complete with the correct Code cites. I couldn't even do that with copy in front of me! This isn't the work of a flim-flam, it's work of a committed crusader.

So what? Bible thumping scammers can recite long passages from the Bible. Does that mean that they are sincere in their beliefs when they steal from you?

[Dezcad]

I'll tell you how I know he believes what he says: There was a site where he was interviewed, I believe, and he recited the whole 861 argument FROM MEMORY--about 5 single spaced pages worth, complete with the correct Code cites. I couldn't even do that with copy in front of me! This isn't the work of a flim-flam, it's work of a committed crusader.

The recall of something has no connection to a person's belief in what they have memorized. I could memorize his position and state it back to you and I don't believe it. Try again......

If Lewis Carroll could recite Alice In Wonderland from memory would that mean he believes it to be true?

[grammarian44]

I could memorize his position

That's just the point. You could, but you won't.

My mother used to say, "If you just tell the truth, you never have to remember anything."

To my mind, that Larken would take the trouble to memorize five pages of drivel so he could recite them as needed to make his case is a pretty good indication that he was insincere all along.

More to the point: Why would anyone think that for Cheek purposes, Larken's sincere belief in the 861 argument would in itself be sufficient to negate the willfulness element?

Cheek is clear that an alleged taxpayer's knowledge of the statutes isn't the only thing that is relevant:

Of course, in deciding whether to credit Cheek's good-faith belief claim, the jury would be free to consider any admissible evidence from any source showing that Cheek was aware of his duty to file a return and to treat wages as income, including evidence showing his awareness of the relevant provisions of the Code or regulations, of court decisions rejecting his interpretation of the tax law, of authoritative rulings of the Internal Revenue Service, or of any contents of the personal income tax return forms and accompanying instructions that made it plain that wages should be returned as income.

So fuzzrabbit, do you think Larken was not aware of court decisions or the 1040 instructions? Assuming that he was aware of such documents, it could well be that the jury could have relied--even solely relied--on evidence of such awareness in making its decision. Nothing in Cheek requires jurors to accord more weight to the Code than to other sources, even though courts themselves must accord more weight to the Code than, for example, the regulations. In other words, no matter how much his heart quivered in sincere commitment to his 861 arguments, the jury may have said to themselves that any bonehead reading the 1040 instructions could have figured out that his income was going to be taxable. If that was their conclusion, they may have decided Larken's case on that basis, notwithstanding Larken's purportedly sincere belief that the 861 argument was sound. And if they decided on that basis, then their reasoning was in complete accord with Cheek.

[Quixote]

I'll tell you how I know he believes what he says: There was a site where he was interviewed, I believe, and he recited the whole 861 argument FROM MEMORY--about 5 single spaced pages worth, complete with the correct Code cites. I couldn't even do that with copy in front of me! This isn't the work of a flim-flam, it's work of a committed crusader.

If the 861 argument could be written out in 5 pages, why is his "Taxable Income" 79 pages long? Larken's presentation of his argument depends too much on digressions needed to implement misdirection to fit into 5 pages.

[jg]

From http://www.usdoj.gov/tax/readingroom/20 ... x.htm#8.06

WILLFULNESS

8.06[1] Definition

Willfulness has been defined by the courts as a voluntary, intentional violation of a known legal duty. Cheek v. United States, 498 U.S. 192 (1991); United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Bishop, 412 U.S. 346, 360 (1973).

Therefore, the taxpayer must be shown to have been aware of his or her obligations under the tax laws. United States v. Buford, 889 F.2d 1406, 1409 (5th Cir. 1989); United States v. Conforte, 624 F.2d 869, 875 (9th Cir. 1980); United States v. Peterson, 338 F.2d 595, 598 (7th Cir. 1964). As the Seventh Circuit Court of Appeals has stated, there must be "proof that the appellant knew he was violating a 'known legal duty.'" United States v. Fitzsimmons, 712 F.2d 1196, 1198 (7th Cir. 1983).

Willfulness is determined by a subjective standard; thus the defendant is not required to have been objectively reasonable in his misunderstanding of his legal duties or belief that he was in compliance with the law. Cheek v. United States, 498 U.S. 192 (1991); United States v. Powell, 955 F.2d 1206 (9th Cir. 1992); United States v. Regan, 937 F.2d 823, 826 (2d Cir. 1991), amended by, 946 F.2d 188 (2nd Cir. 1992); United States v. Whiteside, 810 F.2d 1306, 1311 (5th Cir. 1987). The inquiry, therefore, must focus on the knowledge of the defendant, not on the knowledge of a reasonable person. However, the jury may "consider the reasonableness of the defendant's asserted beliefs in determining whether the belief was honestly or genuinely held." United States v. Grunewald, 987 F.2d 531, 536 (8th Cir. 1993); United States v. Middleton, 246 F.3d 825, 837 (6th Cir. 2001).

Although ignorance and misunderstanding of the law may be asserted to foreclose a finding of willfulness on the part of the defendant, disagreement with the constitutional validity of the law may not. Once it has been established that the defendant was aware of a legal duty and intentionally violated that duty, it is no defense that the defendant believed that the law imposing the duty was unconstitutional. Cheek v. United States, 498 U.S. at 205-06. The constitutionality of the tax laws is to be litigated by taxpayers in other ways established by Congress. Cheek, 498 U.S. at 206. See also United States v. Bonneau, 970 F.2d 929, 931-32 (1st Cir. 1992) (trial judge's redaction of constitutionality arguments from defendant's reading materials did not unfairly prejudice the defense). But see United States v. Gaumer, 972 F.2d 723, 725 (6th Cir. 1992) (defendant should have been allowed to read excerpts of court opinions upon which he relied in determining whether he was required to file tax returns).

Rose knew it was his legal duty to file (he had even testified in other cases ); but did not agreee with the court's interpretation of the law. Rose intentionally chose to ignore the known duty.

[Cpt Banjo]

Fuzz, why don't you ask Rose why he didn't pay his Pennsylvania income taxes. Since the Pennsylvania tax law has no provision corresponding to Section 861, he can't possibly use that as an excuse. Could it be that he's just a freeloading deadbeat?

[Florida]

From http://www.usdoj.gov/tax/readingroom/20 ... x.htm#8.06

WILLFULNESS He believes others misunderstand. Not established. To that? I would have to see that. Yes. That's why he lost. No. I don't believe he would ever agree that was the case.

Look, I know a jury convicted. It was also a jury who let OJ go free. A LOT depends on what the judge TELLS them. And whether they are smarter than fenceposts.

Of course he wouldn't agree. He's not going to admit he's wrong. He acts like he has adult oppositional defiant disorder and he's a nobody with a penchant for attention. Good luck asking him about the Pennsylvania taxes.

[Quixote]

No. I don't believe he would ever agree that was the case.

That's why a jury, not Rose, decided the facts of the case. They decided he wasn't as stupid or deluded as he pretended to be.

[notorial dissent]

Actually, I think they decided he WAS as stupid as he appeared to be and decided it didn’t make any difference as far as him breaking the law. If you’ve been told repeatedly no, and still go ahead and grab the hot pot, no one has much sympathy for you, and he wasn’t smart enough to figure that out.

[grixit]

Rosie apparently whines that the judge used the Federal Rules of Evidence at his trial instead of the Rosie Rules of Evidence. That sort of stuff is called "hearsay" - an out of court statement introduced to prove the truth of what it asserts. No one gets to introduce it. If you want to get your story in front of the jury, you generally must testify, and be subject to cross-examination, not present yourself in letters, reports, videos, web sites or stained glass windows.

Don't forget those neckties and samplers.

[LPC]

I'll tell you how I know he believes what he says: There was a site where he was interviewed, I believe, and he recited the whole 861 argument FROM MEMORY--about 5 single spaced pages worth, complete with the correct Code cites. I couldn't even do that with copy in front of me! This isn't the work of a flim-flam, it's work of a committed crusader.

You poor child. Memorizing their spiels is what flim-flam artists do.

[LPC]

Until 1971, the PA income tax "borrowed" the FEDERAL definitions of "taxable income" and "gross income"--as most state income taxes still do.

Rose has a pretty good memory, considering that he was only two years old in 1971.

More importantly, the statement "until 1971" is not just misleading, but factually wrong (and likely a conscious lie), because the Pennsylvania income tax that was based on federal taxable income lasted from March 4, 1971, when it was enacted as part of the Tax Reform Code of 1971, Act No. 2 of 1971, until June 24, 1971, when the state Supreme Court declared it to be unconstitutional. Amidon v. Kane, 444 Pa. 38, 279 A.2d 53 (1971).

That's right, Pennsylvania had an income tax based on federal law for less than 4 months in 1971. (In those 4 months, the tax existed in theory only, because it was never collected.)

After 1971, Pennsylvania rewrote it's own version of the fraud. Section 101.3 (if I remember correctly) states that NONresidents shall be taxed on income they receive from inside the commonwealth of PA. Sound familiar?

Rose doesn't bother to tell you that EVERY state that imposes an income tax imposes the tax on nonresidents who receive income from sources with the state. He makes it sound like some sort of conspiracy, but it's a normal tax policy to impose taxes on activities within the state.

(P.S. Somewhere, I believe from the Supreme Court, came a ruling that the feds and states must get their revenue from taxing the SAME activities, though I'm not entirely sure why. Otherwise, I don't know why the state would have borrowed the federal definitions.)

So Larken still has some work to do on his spiel.

(There's no such ruling, by the way.)

[LPC]

Dan,

1. He knew he was breaking the law and would be prosecuted;

He knew they would SAY he was breaking the law.

Which is one of the reasons the jury convicted him.

Tax protesters have convinced themselves that "law" is some ethereal concept that is completely separate from reality, and that they have the right to ignore what the courts say and make up their own reality.

The prosecutor showed the jurors that Rose wasn't interested in any opinion other than his own, and had appointed himself as a "supreme authority" on the law, refusing to listen to the IRS or any judge.

[grammarian44]

The "Who must file" clearly states firstoff that "foreigners" must report income from "within the U.S." What about residents?

So it follows from the fact that foreigners must report US-source income that citizens do not have to report domestic income? Brilliant reasoning, fuzzrabbit. If you bring the same level of skill to your reading of the US Code that you use with the 1040 instructions, I can see clearly how it would be easy for you to accept the 861 argument.

Think about a jury hearing that argument. Are they going to conclude that you had a good faith belief that only foreigners owe tax on income from domestic sources? More likely, they are going to conclude that you are willfully blind to facts that are plainly under your nose. And that's exactly what the Larken jury did.

[wserra]

If you want to get your story in front of the jury, you generally must testify, and be subject to cross-examination, not present yourself in letters, reports, videos, web sites or stained glass windows.

Don't forget those neckties and samplers.

But he's still not satisfied.

[webhick]

Funny you should mention the 1040 instructions. They add weight, in my view, to the opinion that only nonresidents owe tax. The "Who must file" clearly states firstoff that "foreigners" must report income from "within the U.S." What about residents?

Strange, I just searched the 1040 instructions (which incidentally includes instructions for Sched A & B) and it doesn't even use the word "foreigners". Not one instance found. None found for "foreigner" either.

There is a section in the instructions on Page 12 called "Do You Have to File?" It appears at the top of the page on the far left. It points you to three charts. Chart A is titled "Chart A—For Most People" and covers filing status (single, married), age and income level. Chart B is titled "Chart B—For Children and Other Dependents" and is for people who are being claimed as a dependent on someone else's tax return. Chart C is titled "Chart C—Other Situations When You Must File" and covers special taxes, EIC, self-employment, and church wages.

Chart A has three notes at the bottom of it, one of which states "Gross income means all income you received in the form of money, goods, property, and services that is not exempt from tax, including any income from sources outside the United States (even if you can exclude part or all of it). Do not include social security benefits unless you are married filing a separate return and you lived with your spouse at any time in 2006."

It doesn't mention anything about foreigners.

The section "Who must file?" is under TeleFax topic #351, according to the publication. It basically spells out Charts A, B, & C in an un-chartlike manner.


Now I'm confused. What page number in the 1040 instructions did you find that foreigners must report income from within the US?

[grammarian44]

The instructions for Line 7 of Form 1040 are pretty clear that wages are income as well.

No rational person could read those instructions and honestly conclude that US citizen wage earners owe no tax. Lying about what you read is not the same thing as having a good faith belief.

[Imalawman]

In regards to Pennsylvania Income Tax:

§ 7302. Imposition of tax


(a) Every resident individual, estate or trust shall be subject to, and shall pay for the privilege of receiving each of the classes of income hereinafter enumerated in section 303, [FN1] a tax upon each dollar of income received by that resident during that resident's taxable year at the rate of three and seven hundredths per cent.

PA ST 72 P.S. § 7308

Larkin, probably heard from other gurus that states derive taxable income from the adjusted gross income for federal taxes. Which is true in a lot of states. As I mentioned in another thread my state bases in starting point of net income off the IRC calculation of adjusted gross income and then state specific deductions and exclusions.

However, Pennsylvania does not calculate income in this manner. Thus his 861 argument would not matter at all for state tax purposes. Just becuase he wanted to believe it was true doesn't make it so. In the end, he's just a cheat.

[Joey Smith]

Fuzz,

Is Larken's position still "Please prosecute me"?

[Joey Smith]

Fuzz,

Is Larken's position still "Please prosecute me?"

Why--you think he's an easy mark?

He has been so far.