Famspear wrote:Yep. However, the power to tax is the power to tax for the GENERAL WELFARE. U.S. Const., Article I, sec. 8, clause 1. By contrast, the power to regulate (to enact laws that regulate) is more limited. See generally clauses 3, 4, 5, 6, 8, 11, 14, 16, and so forth of the same section 8.
Stija wrote:First, I agree on 1:8:1. General welfare is irrelevant and your personal gibberish. Gibberish is defined to include personal religious beliefs. The power to tax is exercised to generate revenue for gov't operations, you can call it general welfare or gov't welfare, that is irrelevant.
Bullsh*t.
The power of Congress to tax is the power to tax for the GENERAL WELFARE. That's not "irrelevant," it's not "gibberish," and it's not "mine." Article I, section 8, clause 1 specifically states that Congress has the power to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States.....
From the United States Supreme Court:
The clause [the taxing and spending clause of Article I, section 8, clause 1] confers a power separate and distinct from those later enumerated [,] is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.
--from
United States v. Butler, 297 U.S. 1 (1936).
Second, are you implying that to tax is not to enact laws and regulate? If so, gimme a reference to case law that says that.
No, I am saying that the Congress can validly TAX something that the Congress might not be able to validly REGULATE.
Good grief, have you been hiding under a rock?
Here is my summary of
National Federation of Independent Business v. Sebelius, no. 11-393; no. 11-398; no. 11-400 (slip opinion, U.S. Supreme Court, June 28, 2012), interpreting Internal Revenue Code section 5000A as enacted by the Patient Protection and Affordable Care Act, Public Law No. 111-148, 124 Stat. 119, 244 (March 23, 2010), as amended by the Health Care and Education Reconciliation Act of 2010, Public Law No. 111-152, 124 Stat. 1029 (March 30, 2010) (with paraphrases and quotes shown below):
1. The Affordable Care Act does not require that the penalty under Internal Revenue Code section 5000A be treated as a tax for purposes of the Anti-Injunction Act, and the Anti-Injunction Act does not prohibit this lawsuit by the National Federation of Independent Business et al. (page 15 of the slip opinion)
2. Although the statute uses the term “penalty” to describe the imposition under section 5000A, the “penalty” label does not determine
whether the payment may be viewed as a constitutional exercise of the Congressional taxing power. (page 33)
3. The decision of Congress that the Anti-Injunction Act shall not apply to the section 5000A penalty does not determine whether the section 5000A penalty is within the constitutional power of Congress to impose a “tax.” (page 33)
4. Certain exactions that are not labeled as “taxes” nonetheless have been authorized under the power of Congress to “tax.” (page 34)
5. The section 5000A penalty or “shared responsibility payment” may, for constitutional purposes, be considered a tax, not a penalty. (page 35)
6. The section 5000A penalty or “shared responsibility payment” is merely the imposition of a tax that citizens may lawfully choose to pay in lieu of buying health insurance. (page 38)
7. Congress had the power to impose the section 5000A exaction under its taxing power, and section 5000A does not need to be read to do more than imposing a tax. (page 39)
8. Under the Constitution, the 5000A exaction is not a direct tax that must be apportioned among the several States. (page 41)
9.
The Constitution does not guarantee that individuals may avoid taxation through inactivity. (page 41)
10.
The Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. (pages 41-42) The Constitution makes no such promise with respect to taxes. (page 42)
11.
Upholding the section 5000A individual mandate under the Taxing Clause does not recognize any new federal power; upholding the mandate determines that Congress has used an existing federal power. (page 42)
12. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty [under section 5000A of the Internal Revenue Code] for not obtaining health insurance may reasonably be characterized [for purposes of determining the requirement’s constitutionality] as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” (page 44)
That's only one of the more recent decisions, bozo.
Ok, i can buy what you're selling. Now, what are the rules for deciding when to use which REGULATE and how many of them are there totally? Put them out all on the table now, so i can learn and ALSO so that you cannot flip flop later again. So far we've got two distinct terms 'regulate". One pertaining to 1:8:3-17 from the Black's and another one not from Black's right? How many more?
No, we haven't gotten into two distinct terms 'regulate'. YOU may have. I haven't even provided a definition of the term.
You don't need to worry about "flip flopping," Einstein. I haven't changed a position, and I don't see that anyone else has in this discussion either.
It is, you just don't get it. Your proposition holds true only for privileges that were taxable all along and Congress changed the laws retroactively. Read on Welch v. Henry at page 147-148...
No, I don't need to re-read the case. And no, the "proposition" is not limited to "privileges that were taxable all along."
Read what the Court stated. The Court said that ALL citizens must bear the burden of taxation. The Court referenced "privileges." The Court could have easily said that citizens must bear the burden of taxation only in some proportion to the privileges enjoyed by citizens -- if that were the law. That is not the law. The court said that ALL citizens must bear the burden of taxation.
NO FEDERAL COURT HAS EVER RULED THAT THE FEDERAL INCOME TAX IS TIED TO THE EXERCISE OF A PRIVILEGE - FEDERAL OR OTHERWISE. EVERY FEDERAL COURT THAT HAS DECIDED THE ISSUE HAS RULED THAT THE FEDERAL INCOME TAX IS NOT TIED TO THE EXERCISE OF A FEDERAL PRIVILEGE.
'''There is no constitutional impediment to levying an income tax on compensation for a taxpayer's labors'''. [ . . . ] --from Funk v. Commissioner, 687 F.2d 264 (8th Cir. 1982) (per curiam)
In
United States v. Buras, the argument that the taxpayer can be subject to an excise tax (specifically, the federal income tax) only if he benefits from a "privilege extended by a government agency" was rejected by the United States Court of Appeals for the Ninth Circuit. See 633 F.2d 1356 (9th Cir. 1980), at
http://scholar.google.com/scholar_case? ... 81&scilh=0
See also
Nichols v. United States, 575 F.Supp. 320 (D. Minn. 1983), at
http://scholar.google.com/scholar_case? ... 25&scilh=0
See also
Lovell v. United States, 755 F.2d 517, 85-1 U.S. Tax Cas. (CCH) paragr. 9208 (7th Cir. 1984) (per curiam), at
http://scholar.google.com/scholar_case? ... 63&scilh=0
See also
Olson v. United States, 760 F.2d 1003 (9th Cir. 1985) (''per curiam''), at
http://scholar.google.com/scholar_case? ... 91&scilh=0
See also
May v. Commissioner, 752 F.2d 1301, 85-1 U.S. Tax Cas. (CCH) paragr. 9156 (8th Cir. 1985), at
http://scholar.google.com/scholar_case? ... 47&scilh=0
See also
Coleman v. Commissioner, 791 F.2d 68 (7th Cir. 1986), at
http://scholar.google.ca/scholar_case?q ... 87&scilh=0
See also
Sullivan v. United States, 788 F.2d 813, 86-1 U.S. Tax Cas. (CCH) paragr. 9343 (1st Cir. 1986) (per curiam), at
http://scholar.google.com/scholar_case? ... 47&scilh=0
See also
Kelly v. United States, 789 F.2d 94, 86-1 U.S. Tax Cas. (CCH) paragr. 9388 (1st Cir. 1986), at
http://scholar.google.com/scholar_case? ... 80&scilh=0
One version of the "government privilege" nonsense is the ''Cracking the Code'' tax evasion scam. Some of the tenets of the theory used in this scam are:
-----".....unprivileged, outside-of-federal-geographical-jurisdiction work cannot be taxed indirectly by the federal government." ---From p. 10, Peter E. Hendrickson, ''Cracking the Code: The Fascinating Truth About Taxation in America'' (12th Printing, Jan. 2010).
----".....private-sector proceeds of work (in particular) cannot be taxed under an 'income' tax." ---Peter E. Hendrickson, from p. 25, ''Cracking the Code''.
-----".....'income', 'wages', 'self-employment income', 'employee', 'employer' and 'trade or business' – as these and certain other terms are used within, and in regard to, the tax law – have narrow legal meanings exclusively involving, and applying to, certain privileged activities, such as holding or administering a government office, or working in one." ---Peter E. Hendrickson, from introductory material, ''Cracking the Code''.
-----".....the law doesn't apply the income tax to his or her [an individual's] non-federally-connected earnings....." ---Peter E. Hendrickson, from his "Cracking the Code" web site forum.
All those tenets are false.
Joseph Alan Fennell was a follower of the ''Cracking the Code'' tax scam -- a scam which has as its basis the erroneous and frivolous contention that "income" for federal income tax purposes means only amounts received in an activity connected to the exercise of a federal privilege. Fennell's arguments — that the compensation he received in exchange for non-federally privileged private sector labor was not taxable, and that non-federally privileged private sector labor is not the subject of an excise (the U.S. federal income tax) — were rejected by the United States Tax Court. See
Fennell v. Commissioner, Docket No. 26285-07L, United States Tax Court, Order of Dismissal and Decision (June 17, 2008).
In another ''Cracking the Code'' tax scam case, the individual argued that he was due a federal tax refund because his compensation constituted "earnings for private-sector, non-federally-privileged work" that he had performed as an engineer for his employer. The Tax Court ruled that the argument was "frivolous and groundless," and imposed a separate penalty of $5,000 under section 6673 for engaging in frivolous litigation.
Ragan v. Commissioner, Docket No. 11966-08L, United States Tax Court, Order and Decision (Feb. 19, 2009).
In yet another ''Cracking the Code'' case involving an individual named David Nelson, the magistrate judge (and the U.S. district court) stated: "The fact that Northwest [Nelson's employer] is a 'private sector company, which is not owned or operated on behalf of the United States' [ . . . ] is immaterial to the question of whether the remuneration Northwest paid Nelson for his work was 'compensation for services' within the meaning of 26 U.S.C. § 61(a)(1). It clearly was."
Nelson v. United States, No. 3:08-cv-00508-MCR-EMT, U.S. District Court for the Northern District of Florida (Dec. 7, 2009),
aff'd, No. 10-10730, U.S. Court of Appeals for the Eleventh Circuit (Aug. 12, 2010) (unpublished) ("We have repeatedly rejected arguments, such as Nelson's, asserting that private sector employment income is not subject to federal taxation.").
The federal privilege argument also fails for the simple reason that the income tax can be imposed on illegal income. An illegal activity, a criminal activity, is not an activity involving a federal privilege. Under the James Doctrine, as explained in a U.S. Supreme Court decision over fifty years ago, the receipt of money by an embezzler is included in the income of that embezzler under the Internal Revenue Code, even though the money does not belong to the embezzler, and even though he is required to return the money to its rightful owner.
James v. United States, 366 U.S. 213 (1961).
As noted above, the argument that the federal income tax can be imposed only on amounts received while the individual is engaged in an activity in connection with the exercise of a federal privilege is also incorrect for the simple reason that an indirect tax (an "excise") does
not need to relate to an activity at all. For example, one of the points made by the Supreme Court in explaining its holdings in
National Federation of Independent Business v. Sebelius, no. 11-393; no. 11-398; no. 11-400 (slip opinion, U.S. Supreme Court, June 28, 2012) is: The Constitution does not guarantee that individuals may avoid taxation through inactivity (page 41 of the slip opinion). The tax in that case is the "shared responsibility payment," the penalty under section 5000A of the Internal Revenue Code imposed on certain persons who do not purchase health insurance. That section 5000A tax is not an income tax but, like the federal income tax, it is generally considered to be an ''excise'' (an ''indirect tax'') for purposes of the U.S. Constitution. Not only is the section 5000A tax not connected to an activity involving a federal privilege, it is not connected to an activity at all. Indeed, the point that it is a tax on inactivity (a failure to purchase insurance) was one of the objections raised by those opposed to the tax in the ''National Federation'' case -- and the Supreme Court rejected that objection by noting that the Congress can indeed validly impose an excise -- an indirect tax (which of course does not have to be apportioned) -- on ''inactivity''.
The ''Cracking the Code'' theory -- that all federal excises must involve an activity connected to the exercise of a federal privilege -- is frivolous. Peter Hendrickson, the promoter of the scam, is under a federal court order never to use the scam again on his own tax returns. See
United States v. Hendrickson, 2007 WL 2385071, at *3, 100 A.F.T.R.2nd 2007-5395, No. 06-11753, U.S. District Court for the Eastern District of Michigan (Feb. 26, 2007, amended May 2, 2007), ''aff'd'', No. 07-1510, U.S. Court of Appeals for the Sixth Circuit (June 11, 2008) (sanctions of $4,000 imposed for frivolous appeal), ''reh'g en banc denied'' (Dec. 16, 2008), ''cert. denied'', U.S. Supreme Court, No. 08-1399 (June 15, 2009), ''reh'g denied'', U.S. Supreme Court (August 17, 2009). Indeed, he spent time in federal prison (from June 29, 2010 to June 13, 2012) for using the scam on his own tax returns. See generally ''United States v. Hendrickson'', 2010 TNT 81-15, n. 5, No. 2:08-cr-20585-DML-DAS, U.S. District Court for the Eastern District of Michigan (April 26, 2010), ''aff'd in part and rev'd in part'', No. 10-1726, United States Court of Appeals for the Sixth Circuit (Feb. 8, 2012) (conviction affirmed; sentencing vacated and remanded for re-sentencing), ''cert. denied'', U.S. Supreme Court, No. 11-1345 (June 11, 2012).
More to come.....
"My greatest fear is that the audience will beat me to the punch line." -- David Mamet