Why Nobody Is Required To Pay Taxes

Why No One is
Required to
File Tax Returns
REFORMING TAX LAWS USING
OUR FIFTH AMENDMENT RIGHTS
2ND EDITION
BY WILLIAM CONKLIN

Fullerton, CA U.S.A.

Why No One Is Required to File Tax Returns™ — 2nd Edition
Copyright © 2000, 2005 William Conklin.
ALL RIGHTS RESERVED INTERNATIONALLY.
Edition 2 Reference Number: 1
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found in the section “About the Author” on page 152. This document
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Table of Contents
Publisher’s Preface........................................................................................ vii
Foreword ...........................................................................................................xi
Introduction ...................................................................................................xvi
Chapter 1: My Story ......................................................................................... 1
The Church of World Peace .......................................................................... 2
Tavery v. United States.................................................................................. 4
When You File a Return, You Waive Your Rights..................................... 5
The Achilles Heel of the Federal Income Tax Code................................... 5
A $50,000 Reward........................................................................................... 6
A New Strategy—An Unsigned Tax Return .............................................. 6
A Bad Ruling................................................................................................... 7
Heads, I Win—Tails, I Win ........................................................................... 7
Either Filing Is Voluntary, or It Is Compulsory ......................................... 8
The IRS Says Filing Is Voluntary.................................................................. 8
Chapter 2: The Fifth Amendment ................................................................. 9
The Miranda Warning ................................................................................... 9
Coercion to Waive Fifth Amendment Rights ........................................... 10
Chapter 3: The Tax Return and the Privacy Act Notice........................... 11
The Conditioning of Americans ................................................................. 12
The Privacy Act ............................................................................................ 12
Filing a Return Is Voluntary ....................................................................... 13
Filing a Return Provides Information to Be Used Against You............. 14
Keeping Fear Alive....................................................................................... 15
Chapter 4: What Do the Attorneys Say?..................................................... 16
The Curtis Letter........................................................................................... 16
Chapter 5: My Challenge Offer ................................................................... 19
My $50,000 Challenge .................................................................................. 19
Melvin Belli Tries to Collect........................................................................ 19
iii
Why No One Is Required to File Tax Returns
Chapter 5: My Challenge Offer (contʹd)
William Cohen Tries to Collect................................................................... 20
Others Are Still Trying to Collect............................................................... 21
What Statute Makes a Taxpayer Liable to Pay? ....................................... 21
My New $200,000 Challenge ...................................................................... 21
Chapter 6: My Tenth Circuit Case............................................................... 22
Forcing the First Amendment Issue in Court........................................... 22
A New Insight on the Problem................................................................... 26
I Filed an Unsigned Return with a Challenge to the IRS ........................ 26
I Filed a Second Unsigned Return.............................................................. 27
I Sued the IRS—Again ................................................................................. 28
The Court Rules in Opposition to the U.S. Supreme Court.................... 29
The Judge Answers a Question I Did Not Ask ........................................ 29
I Appeal to the Supreme Court .................................................................. 30
Chapter 7: More Cases................................................................................... 40
Tavery vs. United States.............................................................................. 40
Conklin vs. United States ............................................................................ 41
United States v. Paul Robbins..................................................................... 43
Chapter 8: The Internal Revenue Code ...................................................... 45
Section 6012................................................................................................... 45
Section 6020(B).............................................................................................. 45
The Meaning of “Shall” ............................................................................... 46
Section 6012 and the Meaning of “Shall” .................................................. 47
Section 6020(b) and the Meaning of “Shall” ............................................. 48
Chapter 9: The IRS and Criminal Prosecutions........................................ 49
Section 7203 and Willful Failure to File..................................................... 49
Filing “Exempt” on a W‐4 Form................................................................. 49
The Problem of Filing a W‐4 ....................................................................... 49
Using Jealousy to Convict ........................................................................... 50
Selective Juries .............................................................................................. 50
The John Cheek Case ................................................................................... 50
Conclusion..................................................................................................... 51
iv
Table of Contents
Chapter 10: The IRS—A Modern American Gestapo.............................. 52
Pre‐pay Your Liability ................................................................................. 52
Do Not Ignore Correspondence from the IRS .......................................... 53
Search Warrants Are Still Required ........................................................... 53
Attendance at Audits Are Not Required .................................................. 53
Chapter 11: The Summons Power of the IRS............................................ 54
Do Not Admit to Having Books and Records .......................................... 54
Never Ignore a Summons............................................................................ 55
Chapter 12: What Can You Do About the Problem?................................ 59
Becoming Judgment Proof .......................................................................... 59
Consulting with Tax Attorneys .................................................................. 60
If You Are An Employee ............................................................................. 61
The “No Waiver of Rights” Letter ............................................................. 61
If You Are Self‐Employed ........................................................................... 62
The “Substitute Jurat” Approach ............................................................... 64
The “Claim for Refund” Letter................................................................... 65
Additional Problems for the Judge ............................................................ 65
The Wrong Way to Challenge the IRS....................................................... 66
Wrong Motives ............................................................................................. 66
Wrong Tactics ............................................................................................... 66
Chapter 13: What Will Uncle Sam Do?....................................................... 67
Chapter 14: Empowerment ........................................................................... 68
You Are Not Too Small ............................................................................... 68
Give This Book to Your Attorney............................................................... 68
Conclusions..................................................................................................... 70
Frequently Asked Questions ....................................................................... 72
On Compulsory Production of Documents............................................... 79
The Nature of IRS Summons ...................................................................... 80
The History and Development of the Fifth Amendment Right
Against Self‐Incrimination ....................................................................... 81
v
On Compulsory Production of Documents (contʹd)
The Fifth Amendment and Books and Records ....................................... 82
The Fifth Amendment and Corporations and Partnerships................... 83
The Fifth Amendment and Evidence......................................................... 84
The Fifth Amendment and Personal Records .......................................... 90
The Fifth Amendment and Civil Proceedings.......................................... 91
The Fifth Amendment and Tax Returns ................................................... 92
On the Meaning of Certain Words and Phrases from the IRS Code .... 94
“Liable for a Tax Imposed” vs. “Tax Liability”...................................... 105
Conclusion................................................................................................... 106
On the Definition of Income...................................................................... 108
26 USC §61 and Grammar......................................................................... 108
The Sixteenth Amendment and Grammar.............................................. 110
On the Liability for Tax .............................................................................. 111
Section 4401................................................................................................. 116
U.S. v. Argomaniz ........................................................................................ 127
U.S. v. Sharp.................................................................................................. 141
U.S. v. Robbins ............................................................................................. 149
About the Author ......................................................................................... 152
Other Davidson Press Publications .......................................................... 153
vi

Publisher’s Preface
by Charles Welty, Publisher
T
here is an often quoted statement in the Bible by Jesus in regards
to the subject of paying taxes. In the well‐known story from the
Gospel of Matthew1 (quoted by the judge in U.S. vs. Amon, page
252), the religious leaders and hypocrites had gathered to try to trap Je‐
sus into making a politically incorrect statement about the payment of
taxes.
Then the Pharisees went and planned how to trap Jesus in
15
conversation. 16They sent their disciples to him along with the
Herodians. They said, “Teacher, we know that you are sincere
and that you teach the way of God truthfully. You don’t favor
any individual, for you pay no attention to external appear‐
ance. 17So tell us what you think. Is it lawful to pay taxes to
Caesar or not?”
18But Jesus recognized their wickedness and said, “Why are
you testing me, you hypocrites? 19Show me the coin used for the
tax.” They brought him a denarius. 20Then he asked them,
“Whose face and name is this?” 21They said to him, “Caesar’s.”
So he said to them, “Then give back to Caesar the things that are
Caesar’s, and to God the things that are God’s.”
22When they heard this, they were amazed. Then they left
him and went away.3
One of the remarkable elements to this story is that Jesus never
spoke against paying taxes. He just wanted to see that everyone got his

1The story is recorded in Matthew 22:15‐22 as well as in Mark 12:13‐17 and Luke
20:20‐26.
2U.S. vs. Amon, 669 F.2d 1351 (1981)
3International Standard Version New Testament, Release 1.2, (Fullerton, CA: Davidson
Press), 2000, Matthew 22:15-22.
vii
just due—both God and Caesar. And even more, the fundamental ques‐
tion as to who owes what and how much—and to whom (or to Whom) it
is owed—has been overlooked by most commentators. The reason for
this oversight has to do with a mistranslation in the text. The problem is
with one of the verbs in Matthew 22:21.4 Note how the verb is translated
as “give back” in the International Standard Version in the citation
above. But note how some other translations erroneously translate the
verb in the citations below:
Render therefore to Caesar the things that are Caesar’s, and
to God the things that are God’s. —NKJ5
Give to Caesar what is Caesar’s, and to God what is God’s. —
NIV6
Give to Caesar what belongs to him. But everything that belongs
to God must be given to God.” —NLT7
Give therefore to the emperor the things that are the em‐
peror’s, and to God the things that are God’s. —NRSV8
You see, the versions of the Bible above have translated the opera‐
tive verb as “to render” or “to give.” That is to say, the presumption is
that Caesar and God are to be “given to” in the same fashion. But only
the International Standard Version brings forth the marvelously subtle
elements of the Greek verb here. The proper word choice is not “give”
but rather “give back.” And there is a world of difference.
Jesus was saying that everything belongs to God in the first place. In
a very real sense, God is “owed” everything that we have. He is our
source. But in the Roman world, Caesar was God. In these passages, to
“give back” is the proper translation in regards to obligations to God and
to Caesar for the audience to whom Jesus was speaking.

4See also Mark 12:17 and Luke 20:25.
5The New King James Version, (Nashville, TN: Thomas Nelson Publishers) 1998, c1982.
6The New International Version, (Grand Rapids, MI: Zondervan Publishing House) 1984.
7Holy Bible, New Living Translation, (Wheaton, IL: Tyndale House Publishers, Inc.)
1996.
8The New Revised Standard Version, (Nashville, TN: Thomas Nelson Publishers) 1989.
viii
Publisher’s Preface
But America is not Rome. And the principles on which America was
founded say that our money belongs to us first, as the people who earn
it. And all of these rights are “inalienable,” meaning that they cannot be
taken away by the government. Further, in America the government’s
ability to govern and to tax is derived from the consent of the governed,
i.e., from “We the People.” Therefore, if Jesus were speaking these words
to America today, He would say “Then give to America the things that
are America’s, and give back to God the things that are God’s.”
Note that the term “give back” is used in my example in regards to
what is owed to God because everything ultimately comes from Him
anyway. But I use the term “give” in regards to America (and the IRS)
because the money belongs to “We the People” before it is to be handed
over to our government, and that only with our consent. And I believe
that consent has to be a “rightly informed” consent, by the way.
A second place in the New Testament where this issue is addressed
is Matthew 17, verses 25‐27 and to my mind this is even more telling. In
this passage, Peter is questioned about whether Jesus pays taxes, in this
case a temple tax. Before Peter could ask Him about it, Jesus asks Peter a
question. He asks “From whom do kings on the earth collect tolls or
tributes? From their own subjects, or from foreigners?” When he said,
“From foreigners,” Jesus said to him, “In that case, the subjects are ex‐
empt. However, so that we don’t offend them, go to the sea and throw in
a hook. Take the first fish that comes up, open its mouth, and you will
find a coin. Take it and give it to them for me and you.”
At issue in Why No One Is Required to File Tax Returns is the even
deeper question of “Does the IRS have the right to compel Americans to
file tax returns?” The answer, you will find, is that because the informa‐
tion in your tax return can and will be used against you in any criminal
or tax matter that the IRS or the Department of Justice may choose to file,
our Fifth Amendment rights are the only shield we have to protect us
from what has become the unreasonable search and seizures of the
IRS.
There is nothing in Why No One Is Required to File Tax Returns that
even hints that Americans should not pay taxes. In fact, in Chapter 12:
ix
What Can You Do About the Problem? (the section “If You Are Self‐
Employed“ beginning on page 62), we are advised to pre‐pay whatever
taxes we may owe. The question, then, in Why No One Is Required to File
Tax Returns is not with paying our taxes. The question is whether to use
the Form 1040 to report them.
Always interesting, never dull, more than controversial, and cer‐
tainly quite an eye‐opening read, Why No One Is Required to File Tax Re‐
turns is written for the everyday working man or woman, but includes
citations from federal court cases that will send most tax lawyers and
CPAs to their libraries in search of confirmation of William Conklin’s
theories and in review of Mr. Conklin’s six victories before the federal
courts in regards to his own tax matters.
Charles Welty, Publisher
Davidson Press, Inc.
Fullerton, CA
x

Foreword
by Joseph Banister, former IRS Special Agent
T
his book is about recovering the
freedoms we have lost because of
our failures to assert our rights
under the Fifth Amendment. And I
ought to know. I was a Special Agent
for the Criminal Investigation Division
of the IRS for nearly six years. That’s
why I was particularly interested when
Davidson Press asked me to write the
foreword to Why No One Is Required to
File Tax Returns. It was not uncommon
to see people freeze in fear when I
showed up at their door, no matter how
wide my smile or reassuring my voice.
Now I believe my experience in the IRS,
Former Special Agent Joseph Banis-
combined with my experience as a Cer‐ ter of the IRS Criminal Investigation
tified Public Accountant (CPA) and as a Division
licensed private investigator, uniquely
qualifies me to write the foreword to Bill Conklin’s book.
The author and I met a few years ago under very unusual circum‐
stances and my life has never been the same since. Please allow me to
explain how I came to meet Bill Conklin.
After earning a bachelor’s degree in accounting in 1986, I spent
three years as a tax specialist and financial auditor for KPMG Peat Mar‐
wick, an international accounting firm. I spent a little under two years in
the venture capital industry, during which time I earned my Certified
Public Accountant (CPA) certificate.
As I neared the end of my fifth year in the accounting and tax pro‐
fession, I began to evaluate my options and decided to search for a job
that would add a little more excitement to my daily work routine. There
xi
were two potential career opportunities that fascinated me—one was a

Federal Bureau of Investigation (FBI) Special Agent and the other was an
Internal Revenue Service Criminal Investigation Division (IRS‐CID) Spe‐
cial Agent. I submitted applications to both law enforcement agencies
and the FBI was the first to contact me. Although I successfully com‐
pleted the long and arduous FBI evaluation and background investiga‐
tion process, a “hiring freeze” prevented the FBI from hiring me.
The IRS‐CID called me in August of 1993 and offered me a position.
I was a little hesitant to accept an offer to work as a Special Agent for the
IRS but as I researched more about the job, it became more appealing. I
learned that IRS‐CID Special Agents investigated criminal violations of
federal income tax and money laundering laws, carried firearms, exe‐
cuted search warrants and arrest warrants, and had an unparalleled
reputation as financial investigators. I decided to accept the IRS offer. I
began to work for the IRS in November of 1993.
I found the first three years of my career in the IRS‐CID to be ex‐
tremely rewarding. My case work consisted of investigations of high‐
level illegal drug smugglers, money launderers, and tax evaders. I
worked very hard and moved up quickly within the agency. During my
tenure at the IRS, I was picked to be the Asset Forfeiture Coordinator
(AFC) and the Organized Crime Drug Enforcement Task Force
(OCDETF) Coordinator for the Central California District. I enjoyed my
job immensely and truly believed that I was using my financial skills to
help my country.
My job satisfaction was at its peak in December, 1996, when I was
listening to a talk radio show and heard a woman named Devvy Kidd
claim that she had overwhelming evidence that the filing of federal in‐
come tax returns was a voluntary exercise and that most Americans were
not liable to pay the federal income tax. Of course, at the time I heard
Ms. Kidd make these claims, I thought her remarks were outrageous and
unbelievable. Filing a federal income tax return is voluntary? Most
Americans are not liable for the federal income tax? Please!
Ms. Kidd offered a couple of booklets that she said proved her
claims were true. Believing that I could quickly disprove her outrageous
claims, I ordered her booklets and began investigating those claims in
January, 1997. I should point out, however, that I did not attempt to con‐
xii
Foreword
duct an official IRS investigation. Instead, I conducted an informal pri‐
vate investigation on my own time and at my own expense.
Although I began my investigation as an extreme skeptic, I was
amazed at the amount of detail Ms. Kidd provided—detail that, with
some investigation on my part, I was able to verify. I spent many months
reading other books and magazines to attempt to confirm or deny the
evidence that she provided to support those claims.
One of the claims that intrigued me the most was that the filing of
federal income tax returns was voluntary. Ms. Kidd based her claim
primarily on the work and research of Bill Conklin, the author of this
book. There were two aspects about Bill Conklin’s work that I found in‐
teresting from an investigator’s point of view. First, Conklin had pre‐
pared a press release (with a contact telephone number and address) an‐
nouncing the evidence supporting his claim that the filing of a federal in‐
come tax return was voluntary. Second, he had actually litigated the is‐
sue in the federal courts.
As I thought more about the implications of Conklin’s claim, I real‐
ized that I could some day be investigating someone for failing to file a
federal income tax return. Therefore, the only ethical thing for me to do
would be to determine whether or not there was any truth to Conklin’s
claim. One day in December, 1997, I took the day off and called the tele‐
phone number on Conklin’s press release, fully expecting that the num‐
ber had been disconnected or was no longer in service. I left a message
telling him that I had read about his claims and that he might find the
reason for my inquiry interesting.
Bill Conklin returned my call within a few hours and we had a very
pleasant conversation. I told him that I made my living as an IRS‐CID
Special Agent but that I was not calling in that capacity. I further ex‐
plained that I was very skeptical about his voluntary tax return claim but
that I wanted to learn more. Conklin explained his research in greater
detail and offered to send me a package of information supporting his
claim. Among the items in the package was a draft version of Why No
One Is Required to File Tax Returns. The thrust of Conklin’s research and
litigation was that the Fifth Amendment to the U.S. Constitution pre‐
vented the government from compelling people to be a witness against
themselves in a criminal case. In other words, Conklin’s position was
xiii
that the government cannot require people to provide testimony (on a
document such as an income tax return) without violating their Fifth
Amendment rights.
As I studied the documents Conklin had sent to me as well as other
documents I had obtained independently, I considered how the rights
acknowledged in the Fifth Amendment to the Constitution affected the
way I did my job as a criminal investigator. I recalled how each and
every time I attempted to speak to the target of one of my investigations,
I was required to inform them that they could refuse to provide me with
any statements or documents based on their rights under the Fifth
Amendment.
In many cases, people refused to speak with me or provide me with
any documents and their refusal to do so was well within their rights.
People could, however, voluntarily waive their rights and agree to speak
with me or provide me with documents. Statements and documents
provided voluntarily were perfectly legal to use against someone in a
criminal case. In short, there was no doubt in my mind that the Fifth
Amendment was a significant factor to be considered when the govern‐
ment sought to obtain information from citizens, even if that information
was contained on an income tax return.
I am thankful that I decided to investigate the validity of Bill Conk‐
lin’s claims and the very important issues he has raised relating to our
Fifth Amendment rights. Bill Conklin has made tremendous sacrifices in
his quest to inform the American people about the precious rights ac‐
knowledged in the Bill of Rights. In fact, Bill Conklin’s information and
evidence was so compelling that it prompted me to investigate a number
of other claims and allegations relating to the federal income tax.
After completing my investigation of the basis for, and the admini‐
stration of, the federal income tax, I concluded that the IRS relied heavily
on propaganda, half‐truths, and exploitation of the average person’s ig‐
norance about Fifth Amendment rights in order to maintain its power
over the American people. Further, I concluded that the IRS routinely
exceeded its constitutional and statutory authority and violated people’s
rights in administering the federal income tax.
I confronted the IRS with the results of my investigation into Bill
Conklin’s research and the research performed by many others. I in‐
xiv
Foreword
formed the agency of my findings that people’s rights were being at best,
ignored, and, at worst, violated. The agency refused to discuss the results
of my investigation and encouraged my resignation.
Realizing that the IRS had absolutely no intention of “applying the
tax law with integrity and fairness to all,” as its mission statement so
clearly states, I resigned on February 25, 1999. I have returned to the ac‐
counting profession and I now have the honor of joining a growing
number of retired judges, attorneys, CPAs, former IRS employees, con‐
cerned citizens, and knowledgeable experts like Bill Conklin in teaching
Americans the truth about the deceitful way the federal income tax is
administered.
I tip my hat to Bill Conklin, who has taken the time and effort to in‐
form his fellow Americans about the way the IRS administers the federal
income tax and about precious rights many Americans did not even
know existed. I am one of those Americans he has so informed. As I de‐
scribed above, learning this information has forever changed my life and
the way I view the federal income tax. I have no doubt it will have a
similar effect on you.
Joseph Banister, CPA
Former Special Agent,
IRS Criminal Investigation Division
San Jose, California
xv
Introduction
by William Conklin
A
ll individuals who file tax returns waive their Fifth Amendment
protected rights. The government cannot require individuals to
waive their Fifth Amendment protected rights. We have a con‐
flict here.
The income tax system of the United States has become absurd. It
has become absurd because it has become complicated beyond belief.
The system is so complicated that the average person must spend hun‐
dreds of dollars each year for professional help or on computer software
in order to attempt to comply with the system. Individuals feel com‐
pelled to sign documents, under the penalty of perjury, that they do not
understand. The IRS misleadingly refers to the tax system as “volun‐
tary.” The IRS does so because it knows that requiring individuals to
provide information on 1040 returns—information which may be used to
criminally prosecute the provider—would create a severe constitutional
problem.
The IRS routinely prosecutes individuals who choose not to volun‐
tarily file 1040 returns, in order to keep the pressure on the rest of the
public to continue to volunteer. Criminal prosecutions, unsubstantiated
and arbitrary Notices of Deficiency, garnishments, outrageous penalties
and illegal searches and seizures, are all tools the IRS employs to force
“voluntary” compliance with the present tax laws. The IRS is an agency
out of control. It has little respect for the right to due process, or the
many other rights of the citizens of this country which are protected by
the Constitution. It is time for a change and this book will tell you, in
plain and simple language, how you personally can become a catalyst for
making change.
So, sit down in your favorite chair and give me about two hours of
your time. I’ll expose for you the most incredible scam ever perpetrated
on the American public: the federal income tax system.
You will learn in this book that:
xvi
Introduction
¾ There is no statute that makes a person liable or responsible to
pay the federal income tax. Individuals only become liable to
pay the income tax when they voluntarily file a tax return, or
when the IRS follows its assessment procedures as outlined in
the Internal Revenue Code.
¾ If there were a statute which clearly and unequivocally required
the filing of tax returns, such a statute would be unconstitu‐
tional under the present income tax system to the extent that it
would require individuals to give the government information
which could be used against them criminally.
¾ The IRS, under our U.S. Constitution, cannot legally require in‐
formation on 1040 returns from individuals. That is why the IRS
continually refers to the income tax as “voluntary.”
xvii

Why No One is
Required to
File Tax Returns
REFORMING TAX LAWS USING
OUR FIFTH AMENDMENT RIGHTS
2ND EDITION
BY WILLIAM CONKLIN

Chapter 1: My Story
T
he year 1976 was the two hundredth anniversary of the signing of
the Declaration of Independence. During that year, there was a lot
of interest in the Constitution and its influence on modern society.
One day in early June of 1976, I was walking to get a bit of exercise after
a hard day spent as an elementary school teacher, when I noticed a sign
on the front of an old building which read: “National Tax Strike.” My
generally strong curiosity led me to enter, and the subsequent meetings
and conversations I had with the folks I met inside that building started
me on the twenty year voyage that eventually led to the writing of this
book.
Inside the building, I met several gentlemen whose ideas at first
seemed completely loony to me. However, they did get my attention
with their views on the tax laws, and gave me enough incentive to begin
my own research. After several months in a law library, I realized they
had some valid concerns, and I, too, “went public” with my new‐found
knowledge. A local newspaper in the Denver area published an article
quoting my comments about the tax system.
The IRS immediately sent me an audit notice and proceeded to do
everything it could to shut me up and destroy me emotionally and fi‐
nancially. During the extensive litigation that followed over the years,
however, I defeated the IRS six times! My wins in the federal Tenth Cir‐
cuit Court of Appeals are published in the Federal Reporters found in
the law libraries.
If you visit a law library, you may obtain photocopies of the pub‐
lished court decisions in the cases that I have won. There is no doubt that
in over twenty years of litigation involving these cases, the IRS has spent
hundreds of thousands, if not millions of dollars fighting me, a little guy!
It is a shame that the IRS wasted so much money with its frivolous litiga‐
tion—not just once, but six times!
If you were to raise similar challenges against the IRS, you could
have published wins in the law books, too. The challenges I have made
are not difficult to make, nor do you have to have formal legal training to
understand the principles. However, the implications of repeated losses
1
for the IRS are significant. If more of us forced such losses, the laws
would have to be changed by Congress. The only reason the present tax
system continues to exist is because not enough people take time to chal‐
lenge it. In fact, we Americans continue to voluntarily waive our rights
(rights which the Fifth Amendment was designed to protect) every time
we file 1040 returns. Worse, we do everything we can to avoid litigation
with the IRS when the agency challenges us. My fellow Americans, this
has to change.
Here are just a few of the details of some of the challenges I have
made to the IRS.
The Church of World Peace
In 1977, I set up a church to promote my religious beliefs, and take
advantage of the tax laws relative to churches. I also started exercising
my First Amendment protected rights by telling others about my beliefs,
and sharing with them the concepts for setting up their own church.
The IRS became extremely upset with me because in establishing
these churches I made sure that all of the rules set out in the law were
strictly followed and thereby forced the IRS to let the small churches take
advantage of the tax breaks which the law allows all churches. When fol‐
lowed to the letter, the laws passed by Congress pertaining to all
churches, large and small, allow literally billions of dollars of church as‐
sets and income to escape taxation—church organizations are exempted
from the tax laws by the IRS. Of course, if there were true separation of
church and state, churches would actually be immune from government
regulation and taxation and thus would not even have to ask the IRS for
a recognition of exemption, but I will not sidetrack on that issue here.
In an effort to discourage my activities, the IRS attacked my church
and told me it would, in effect, pull the exempt status of the Church if I
did not answer some additional questions to its satisfaction. We went to
court over the efforts of the IRS to force my answers. In my first case, the
Tenth Circuit ruled that the IRS could not revoke the tax exempt status it
had previously recognized without following all the procedures to the
letter, including first issuing me a summons. See Church of World Peace,
Inc. v. IRS (715 F.2d 492).
Seeing that I was going to dig in my heels and not be quickly in‐
2
Chapter 1: My Story
timidated, the IRS backtracked a bit and issued a summons, as instructed
by the Court. I filed a court action challenging the summons, but the dis‐
trict court ordered it enforced. In order not to be held in contempt of
court, I had to appear and answer some of the questions of the IRS. I was
not finished, though. I appealed.
In my appeal, the Tenth Circuit Court of Appeals essentially ruled
in favor of my argument, and quashed the lower court’s enforcement or‐
der! See United States v. Church of World Peace (775 F.2d 265).
Even though I won this round, I was not refunded any court filing
fees or granted any monetary relief for the costs I had incurred. How‐
ever, in reading over the rules and the law, I noticed that since this was a
summons issue, I could at least apply for a small witness fee. I did so.
The IRS Code says witness fees must be paid since I appeared in answer
to the summons.
The IRS refused to pay me, however, probably because it did not get
all the answers it had wanted. So I sued the IRS again, this time in order
to collect the meager witness fee. Again, the lower court seemed only too
anxious to help the government—it sanctioned me $1,000 for filing what
it called a “frivolous” lawsuit. But again I stuck to my guns, and again I
prevailed. As a result of my case, Tenth Circuit reversed the lower court.
Additionally, the Court chastised the Department of Justice for misrepre‐
senting the facts in its response to my lawsuit! See Conklin v. United
States (812 F.2d 1318).
Because the summons enforcement order had ultimately been
quashed, I filed a motion to suppress the information that the IRS had
obtained from my forced response. Since the information had already
been obtained by the IRS, the Court held that my motion issue was
“moot.” See U.S. vs. Church of World Peace (878 F.2d 1281).
However, some years later, the Church of Scientology took the exact
same concern up to the U.S. Supreme Court. See Church of Scientology
of California v. United States of America (113 S.Ct, 447; 121 L.Ed.2d
313). In the Scientology case, the Supreme Court reversed the earlier rul‐
ing that the Tenth Circuit had made in my case, and even pointed to my
case as an example of “bad” law. The court ruled that my issue had not
been moot and that relief should have been granted. With this encour‐
agement, I subsequently re‐litigated my case and I won that case, too!
3
My battle was not over though. After defeating the IRS on this ini‐
tial church issue, the IRS decided to lay on me a statutory Notice of Defi‐
ciency for tens of thousands of dollars that I did not owe. In this personal
attack on me, the true colors of the IRS and its incipient tyrannical ten‐
dencies showed up. Without going into the details of this case, suffice it
to say that the Tenth Circuit ultimately reversed everything the IRS ar‐
gued. See Conklin v. C.I.R. (897 F.2d 1032) and Tavery v. United States
(897 F.2d 1027).
For those readers who may wish to check all this out in the law li‐
brary, you will note that the IRS finally settled the financial part of this
battle in a case titled Tavery v. United States (Civ. No. 87‐Z‐180, USDC
Colorado). I think the IRS did so because the IRS knew it would other‐
wise have to defend its outrageous actions to a jury if the case were to
have gone to trial.
Eventually, in 1995, the IRS got its way. The Tenth Circuit Court of
Appeals upheld a Tax Court judge’s opinion revoking the tax exempt
status of the Church of World Peace—for doing the same things that
other churches do. The Tenth Circuit ignored its previous rulings (where
it had decided in my favor), and it ignored the decision by the Supreme
Court in the Scientology case. Interestingly, the Court chose to mark the
last Church of World Peace case, “not for publication.”
Although I finally lost the battle, I feel that I won the war because I
learned so much about the IRS and the courts in the process. I have
learned that knowledge of the law is only one small part of the issue.
The “big picture” issue is realizing and understanding how the courts
and the government bend the law if it is in its best interest; that is, if it
feels it necessary in order to defeat a perceived threat to the sacrosanct
tax system. I am not saying such things because I am a poor loser, but
because that is just the reality of it. I certainly have no regrets about the
final outcome, because I have gained invaluable insights into the meth‐
ods and madness of the courts and the government in general. I have
learned how to litigate and obtain justice in spite of this terrible reality.
Tavery v. United States
My next‐to‐last case to date argued before the Tenth Circuit was
Tavery v. United States (32 F.3d 1423, 10th Cir., 1994). Although the IRS
4
Chapter 1: My Story
thinks it won this case, the IRS does not really understand the implica‐
tions of the Tenth Circuit decision. The Tenth Circuit ruled that informa‐
tion may be entered from tax returns into criminal cases involving third
parties if the individual who filed the return is either a friend, spouse or
relative of the defendant. That means that if the IRS is prosecuting a
friend of yours, it can (according to the Tenth Circuit) use information in
that friend’s case which came from your personal finances, if the IRS be‐
lieves that you might have been able to provide financial help for the
friend.
If the courts take the position that information from your return
may be inserted into third party cases, it becomes clear that every time
you file a return, you are waiving not only your rights to privacy (pro‐
tected by the Fourth Amendment) but also your Fifth Amendment rights
to not be a witness against yourself. If this idea does not bother you, you
may as well put this book down now. You are wasting your time reading
it.
When You File a Return, You Waive Your Rights
The IRS insists that you waive many of your rights when you file a
tax return. The IRS deceitfully tells you that you are “voluntarily” filing
because the IRS and the courts both know that the government simply
cannot require you to waive any rights protected by the Constitution.
The IRS is worse than sneaky—the IRS knows that as long as you volun‐
tarily provide information, you have no legal standing to object if the IRS
later decides to use the information you volunteered against you.
The Achilles Heel of the Federal Income Tax Code
As I learned more and more about my rights, the constitutional pro‐
tections of my rights, and the intricacies of IRS procedures and the fed‐
eral court system, I eventually realized that I was on to something big. I
saw that the use by the IRS of return information in criminal cases di‐
rectly collides with the Fifth Amendment. I realized that the Achilles heel
of the federal income tax code was in the Bill of Rights to the United
States Constitution, specifically the Fifth Amendment.
5
A $50,000 Reward
Much additional case studying and research in the law library con‐
vinced me that the Fifth Amendment was the reason I had never been
able to find a specific statute requiring me to file an income tax return! I
began publishing an offer for a reward of $50,000.00 to anyone who
could satisfactorily answer the following questions:
1. How may I file a tax return without waiving my Fifth Amend‐
ment protected rights?
2. What statute in the Internal Revenue Code makes me liable to pay
the income tax?
I have published my reward offer for several years now, and al‐
though several famous attorneys have applied for it, none of their an‐
swers have really qualified them for it.
A New Strategy—An Unsigned Tax Return
In 1986 I decided to file an unsigned tax return. I must emphasize
that as I look back over more than 20 years of paralegal experience, this
strategy turned out to be a mistake and I do not recommend that anyone
file an unsigned tax return. I include the story here merely for the sake of
being historically complete with my narrative.
I submitted the unsigned return with a cover letter pointing out that
I had discussed with several attorneys my perceptions of the Fifth
Amendment conflict with the requirement of filing returns, and none of
them had been able to show me how I could file a return without waiv‐
ing my rights. I enclosed photocopies of their written opinions to that ef‐
fect. I gave the IRS a Power of Attorney to sign the return for me if the
IRS could do so without waiving the Fifth Amendment protections of my
rights.
The IRS fined me $500 for my concern! (The fine is now $5,000.) I
was told that without a signature I was filing a frivolous tax return and
was thus subject to a $500 penalty for filing a frivolous return. Far from
giving up my habits of challenging the IRS rulings, I filed a suit to argue
the issue. During five years of wrestling with the issue, Judge Notting‐
ham, a federal judge in Denver, Colorado, told me that if he were to rule
6
Chapter 1: My Story
in my favor, he was afraid that he would overturn the federal tax system.
Finally, he ruled against me but he took the position that the Fifth
Amendment does not apply to the federal tax system because the Fifth
Amendment only applies to “compelled testimony.”
A Bad Ruling
I appealed the case and the Court of Appeals (the Tenth Circuit
again, in Denver) upheld Judge Nottingham’s contention that tax returns
are not the compelled testimony spoken of in the Fifth Amendment and
that therefore the Fifth Amendment does not apply to the income tax
system. (See more on this case in “Chapter 6: My Tenth Circuit Case, be‐
ginning on page 22.”)
This was an incredible ruling. In other words, the court ruled that
filing tax returns is not required, or compelled. Said yet another way, the
courts had just ruled that filing returns was truly voluntary! Perhaps the
government realized that significance of the ruling, too, because the IRS
lost no time in trying to put a damper on my celebration of what the rul‐
ing truly signified.
The IRS immediately asked the court to order me to pay $6,000 for
the valuable time it had taken the IRS attorneys to prepare arguments
and motions to defend against my “frivolous” contention. Permit me to
also state this another way: the government wanted the court to fine me
for taking the position that the filing of income tax returns was com‐
pelled or required!
Heads, I Win—Tails, I Win
Are you confused yet? I hope not. In fact, I hope you feel the same
elation I felt about the outcome. I thought it was great! As the judge had
mused out loud earlier during one of our hearings, either way he ruled, I
win! For example, if he were to have ruled that the $500 fine should be
abated, he would have had to decide that the unsigned return and my
concerns were not frivolous. But he could not do that, because then other
folks might start submitting unsigned returns. That would pull the teeth
of the IRS—it could no longer fine people for submitting a “frivolous” re‐
turn. But more importantly, how then could the IRS use anyone’s return
information against them criminally if the filer had not signed it “under
7
the pains and penalties of perjury?”
On the other hand, by upholding the $500 fine, it would mean that
the judge was ruling against the written, professional opinions of six at‐
torneys whom I was relying on. Further, upholding the fine would un‐
derscore the uncomfortable fact what my attorney’s opinions brought
into sharp focus—that the IRS could use the club of a fine to force me to
sign and submit a return, thereby forcing me to waive my rights not to
be a witness against myself.
Either Filing Is Voluntary, or It Is Compulsory
Either the Fifth Amendment applies because filing a return is com‐
pelled, or the Fifth Amendment does not apply because filing a return is
voluntary. Of course, if the Fifth Amendment applies, then my argument
is far from frivolous, and if the Fifth Amendment does not apply, I have
proven my point that filing is not required.
In any event, the only way that justice can prevail in the face of a
judicial system that will declare words to mean their opposites in true
Orwellian fashion (or Alice in Wonderland, whichever prose you prefer) is
this: the American public as a whole must become aware of the terrible
deceit that has been perpetrated on them regarding the federal income
tax. The American people must begin to make their own challenges.
The IRS Says Filing Is Voluntary
The IRS, in an obvious attempt to deal with the problem, continu‐
ally refers to the income tax system as voluntary. Why No One Is Required
to File Tax Returns will tell you that in this regard the IRS is right—as
long as we have the Fifth Amendment to protect our rights, filing returns
must indeed be voluntary. And I believe we can shove such words right
back down the throat of the IRS until it, too, goes with us to the Congress
so that we, together, demand that the law be changed!
8

Chapter 2: The Fifth Amendment
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on the presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be de‐
prived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use without just
compensation.
—Article V: United States Constitution
A
s our proposed Constitution was being discussed prior to adop‐
tion, many people expressed concern that it gave too much
power to a central government. To calm such concerns, eventu‐
ally a Bill of Rights was proposed and adopted which listed several pro‐
hibitions to the new government—certain individual rights which the
government was to understand from the beginning that could not be in‐
fringed upon.
The Fifth Amendment is part of the Bill of Rights and it holds that
individuals cannot be required to give the government information
which may be used against them in criminal cases. Subsequent case law
has applied the Fifth Amendment in civil cases, too, when there is the
possibility that the information in question may be used criminally. (Of
course, there is always the possibility that information may be used for
criminal prosecution in a system like our present tax system, where civil
enforcement is used by an agency to gather information that the very
same agency may utilize for criminal prosecution.)
The Miranda Warning
When a police officer questions an individual for information that
may be used against that individual in a criminal case, the police officer
is supposed to first read him a “Miranda” warning to advise him of
9
many of his rights (See Miranda vs. Arizona, 384 U.S. 436, 1966). After
such warning, every time the individual answers a question, he is volun‐
tarily waiving the Fifth Amendment protection of his rights. He cannot
later object when the answers he volunteered are used in his criminal
prosecution.
If an individual is indicted and taken to trial by the government, he
cannot be required to testify against himself. The government must have
enough information before the indictment to convict the individual
without his own testimony. The Fifth Amendment protections we all en‐
joy are thus extremely important to protect us against government
prosecution and persecution, but as you will see from the rest of the in‐
formation in this publication, the government ignores the Fifth Amend‐
ment in the collection of income taxes. Since the population is generally
ignorant as to the nature of its rights and constitutional protections, the
federal government continues to get away with the biggest scam in
United States history. The government has done so for over eighty years.
Coercion to Waive Fifth Amendment Rights
The government of the United States of America, through its agency
the Internal Revenue Service, and supported by a court system that de‐
liberately ignores the law in tax cases, is requiring individuals to waive
their Fifth Amendment protected rights to provide information on April
15. That information may be used against the individual criminally. Such
a situation makes a complete mockery of the Fifth Amendment.
Through the IRS and the Department of Justice, the government by
carefully orchestrated trials and outrageous fines and criminal penalties
instills fear in the American public and thus perpetuates a tax system
which is not only un‐American (in that it taxes an individual’s industri‐
ousness and productivity), but also unconstitutional in that Americans
must waive their constitutionally protected rights in order to comply
with it. In this manner, the IRS essentially beats confessions out of 100
million Americans each year, and make a mockery of our Bill of Rights.
It is time for us to wake up, assert our rights again, and reveal the truth
to others.
10

Chapter 3: The Tax Return and the
Privacy Act Notice
A
ll government agencies are required to tell the public the law
and the penalties for not obeying the law under the Privacy Act.
The following statement is the Privacy Act Notice as it appears
in the 1040 Instruction Booklet.
The law says that when we ask you for information we
must tell you our legal right to ask for the information, why we
are asking for it, and how it will be used. We must also tell you
what could happen if we do not receive the information and
whether your response is voluntary, needed for a benefit, or
mandatory under the law.
This notice applies to all papers you file with us, including
this tax return. It also applies to any questions we need to ask
you so we can complete, correct, or process your return; figure
your tax; and collect the tax, interest, or penalties. Internal
Revenue Code Sections 6001, 6011, and 6012(a) say that you
must file a return for any tax for which you are liable. Your re‐
sponse is mandatory under these sections. Code section 6109
says that you must show your social security number on what
you file, so we know who you are and can process your return
and other papers. You must fill in all parts of the tax form that
apply to you. However, you do not have to check the boxes for
the Presidential Election Campaign.
We may give the information to the Department of Justice
and to other Federal agencies, as provided by law. We may
also give it to cities, states, the District of Columbia, U. S.
Commonwealths or possessions, and certain foreign govern‐
ments to carry out their tax laws.
If you do not file a return, do not give the information
asked for, or give false information, you may be charged penal‐
ties and you may be subject to criminal prosecution. We may
11
also have to disallow the exemptions, exclusions, credits, de‐

ductions, or adjustments shown on your tax return. This could
make the tax higher or delay any refund. Interest may also be
charged.
Please keep this notice with your records. It may help you
if we ask you for other information. If you have questions
about the rules for filing and giving information, please call or
visit any Internal Revenue Service office.
Most Americans have heard of the 1040 Income Tax Form and the
rest of the forms in the 1040 family. Each year, approximately 100 million
people rush to the post office (many at the last minute) to give the gov‐
ernment complete information on their financial lives. Amazingly, thou‐
sands, perhaps even millions, of these individuals file their returns with‐
out any real understanding of the form or the information placed on it.
Their lack of understanding is why they use CPAs and computer pro‐
grams to prepare the documents for them. But think on this: Americans
sign the forms they do not understand, oftentimes prepared entirely by
others, and swear to their accuracy “under the pains and penalties of
perjury!”
The Conditioning of Americans
I have to hand it to the IRS for its fantastic conditioning of millions
of Americans. Millions of individuals blindly and unthinkingly commit
the federal crime of perjury each year because they file income tax re‐
turns that they do not understand and that they thus could not explain
or defend. Perjury is a serious felony punishable by a fine of up to $2,000
and a jail term of up to five years, or both. See Title 18, United States
Code, Section 1621.
The Privacy Act
The IRS is very aware of the fact that it has a legal right to use any
information provided on a 1040 Form. The IRS is also aware that the Pri‐
vacy Act requires all government agencies to inform the public about the
law and to tell the public what the agency might do with the information
requested, as well as to advise the public of the consequences for dis‐
obeying the law. That is why the IRS warns us that information on tax re‐
12
Chapter 3: The Tax Return and the Privacy Act Notice
turns may be given to the Department of Justice.
The IRS goes to great lengths in its Privacy Act Notice to create a
confusing situation. After all, the IRS wants you to think that you are re‐
quired to file a return. At the same time, the IRS warns you that you are
giving it information that it can use in a criminal case—yours! The Pri‐
vacy Act Notice also states that individuals are required to file a return
“for any tax for which you are liable.” You are referred to IRS Code Sec‐
tions 6001, 6002 and 6012.
Get a copy of the IRS Code in the law library and read those sec‐
tions. Do you see a section anywhere in the Code that makes you liable
to file a return? Only a few sections actually come close, but they do not
actually require you to file the return; the sections simply state that if you
are liable, then you must file.
Discuss these sections with your attorney. Your attorney will have
to conclude that in and of itself, the language of these sections does not
make you liable to pay an income tax. (The lawmakers did not simply
misspeak here. Contrast these sections with Section 5005, for example,
which very clearly specifies that if you distill or import distilled spirits,
such action makes you liable for the tax.) Your attorney will likely fur‐
ther conclude that you are not liable for the tax unless and until you volun‐
tarily file a return. Such action is what assesses or bills you—by signing
the bill, you are making a promise to pay. Again, there is no section in
the Internal Revenue Code that generally makes individuals liable to pay
an income tax.
Filing a Return Is Voluntary
Read the lips (and the written words) of the IRS: the IRS insists that
filing a return is voluntary! If you will look through the IRS literature,
you will see that the IRS continually refers to the income tax as a “volun‐
tary tax.” The IRS also says that millions of individuals voluntarily file
returns. Several years ago, I searched through the entire Internal Reve‐
nue Manual and I found numerous instances of the use by the IRS of the
word “voluntary” in relation to the filing of income tax returns.
Here are some examples:
13
¾ Chapter 6200 at 6210 states that “It is the goal of the Internal
Revenue Service to encourage and achieve the highest possible
degree of voluntary compliance with the tax laws….”
¾ Chapter 100 at 110 states that “The primary mission of the Tax‐
payer Service is to promote voluntary compliance through edu‐
cation and assistance to taxpayers.”
¾ In Part VI, under Section 6810 (Taxpayer Service), it is stated at
(13) 31(1)(f) that “returns are voluntarily submitted by taxpay‐
ers.”
¾ In Section 6810 (Operating Techniques and Reporting) at (13)
91(1)(a), the Manual states: “securing a valid voluntary income
tax return from the taxpayer….”
¾ In the Section on IRS Policy Statements at P‐4‐84, the Manual
states: “The purpose of criminal tax investigations is to enforce
the tax laws and to encourage voluntary compliance.”
¾ In the General Section, at 4022.65(3) we read: “When a person
indicates he/she will voluntarily comply but requests that he/she
be served….”
¾ In the Automated Collection Function Procedures at 5535.4, the
Manual states that the IRS may file returns under 6020(b) if the
returns are “not filed voluntarily.”
Furthermore, Webster’s Dictionary defines the word “voluntary” to
mean the following:
Voluntary: brought about by one’s own free choice; given
or done of one’s own free will; freely chosen or undertaken;
arising in the mind without external constraint; spontaneous;
in law, (a) action done without compulsion or persuasion.
Filing a Return Provides Information to Be Used Against You
The Privacy Act Notice by the IRS does not mention that the only
purpose of the Department of Justice is to investigate and prosecute
crimes. If it did so, more folks might pause and ask why the IRS would
14
Chapter 3: The Tax Return and the Privacy Act Notice
be alerting them to the possible sharing of their individual return infor‐
mation with that prosecutorial agency. I think this is deceitful. The IRS
does not really want you to know that you are providing information
that it can and will use against you. However, the IRS knows that it
must have something in print to point to in the event you later try to
claim you were never told that you were waiving the Fifth Amendment
protections of your rights by “volunteering” the information. Note that
the Fifth Amendment states that you cannot be compelled to witness
against yourself; and note further that the Fifth Amendment protections
do not apply if you can be tricked into voluntarily witnessing against
yourself. Doesn’t this make you just a teensy bit mad?
At the risk of belaboring this point, the IRS would not be required to
give the warning that information may be given to the Department of
Justice unless it were allowed to use information on tax returns in crimi‐
nal cases. So when we read the Privacy Act Notice, we should know be‐
yond a doubt that filing returns is indeed “voluntary” because the IRS is
warning us that it can give the information to the Department of Justice.
Let me say it one more time: when you send in a tax return, you
have been forewarned how the information may be used. Since, in spite
of that warning, you have voluntarily given the information on the re‐
turn to the government, you cannot later object if the IRS or the Depart‐
ment of Justice later decide to use the information against you in a crimi‐
nal prosecution.
Keeping Fear Alive
Each year the IRS indicts several hundred individuals who have not
filed tax returns in order to keep a degree of fear alive in the general
public and keep them volunteering. Although the IRS refers to the filing
of returns as voluntary, it has both criminal and civil penalties for those
individuals who do not “volunteer.” That is why any challenge or stand
you make for the truth and the Bill of Rights is serious business, and why
you must know what you are doing. You are dealing with a corrupt gov‐
ernment agency and a major judicial conspiracy to protect the income
tax. The actions of both the IRS and the courts have the blessing of our
elected representatives. That is why this situation can only be changed
by the people themselves.
15
Chapter 4: What Do the Attorneys Say?
G
uy Curtis, an attorney who practices law in Imperial, Nebraska
and who has extensively studied the issues discussed in this
book, has the following to say about the federal tax system and
its filing “requirements.” Mr. Curtis put his legal opinion in writing in
1985.
The Curtis Letter
Dear _________:
In response to your letter requesting my legal opinion as an
attorney regarding the voluntary nature of filing an income tax
return, I am generally in agreement with Mr. Rendelman’s excel‐
lent analysis of the income tax laws. Regarding my own qualifi‐
cations and experience, I have served as an elected prosecuting
attorney for over twenty years. In addition, I have handled a
number of criminal tax trials in federal courts as defense attor‐
ney.
The average individual is utterly intimidated by the volumi‐
nous 6000 plus pages of the Internal Revenue Code. It is so
vague, confusing and impossible to understand that even Com‐
missioner Roscoe Egger, Jr., IRS, told an audience on November
30, 1984, in Baltimore that: Any tax practitioner, any tax adminis‐
trator, any taxpayer who has worked with the Internal Revenue
Code knows that it is probably the biggest “mishmash” of stat‐
utes imaginable. Congress, various Administrations and all the
special interest groups have tinkered with it over the years, and
now a huge assortment of special interest and pet economic
theories have been woven into the great hodgepodge that is to‐
day’s Internal Revenue Code. IR‐84‐123, 11‐30‐84.
Even President Reagan has attested to the fact that the Code
is impossible for the average citizen to understand. He said in a
1984 Associated Press story: “The government has the nerve to
tell the people of the country, ‘you figure out how much you
16
Chapter 4: What Do the Attorneys Say?
owe us—and we cannot help you because our people do not un‐
derstand it either—and if you make a mistake, we will make you
pay a penalty for making the mistake.”
The Supreme Court, in Garner vs. U.S., 424 U.S. 648 (1975),
held that the information in a return is, for Fifth Amendment
analysis, the testimony of a witness. Therefore, since no citizen
can be compelled to be a “witness” against himself, any statute
that attempted to require a citizen to file a return which could be
so used would be unconstitutional.
I must tell you that the Internal Revenue Service and the Fed‐
eral Courts have taken positions that are in conflict with the
opinion in this letter. However, in IRS Publication #17, the IRS
says that where there is a conflict in the Court decisions, the IRS
will favor the position of the government, not the taxpayer, even
though this policy is a blatant violation of the well established
legal principle that in case of any ambiguity of statutory con‐
struction, the doubt should be resolved in favor of the taxpayer,
not the government. See Greyhound Corp. vs. U.S., 495 F.2d 863
(1974).
I cannot tell you not to file an income tax return. As the IRS
itself stated in their Publication 21, you must make this decision.
However, the critical point as to whether your decision not to
file would be “criminal,” that is, in violation of section 7203 de‐
pends on your “intent.” Merely proving that you failed to file a
return is not enough. The government must also prove beyond a
reasonable doubt that your failure to file was “willful.” Failing to
file a tax return is not a crime. As stated by Mr. Rendelman, if
you reasonably believe in good faith that you are not required
under the law to file a return, then your action cannot be consid‐
ered to be “willful” or in “bad faith,” even if you are wrong. By
virtue of the fact that you have sought, accepted and relied upon
a professional opinion, your actions ought to be construed as
“reasonable” and “in good faith,” not “willful” or in “bad faith.”
In the Bishop case referred to in Mr. Rendelman’s letter, the
United States Supreme Court said that any person who relies
upon a prior decision of that Court cannot be “willful”. Conse‐
17
quently, any person relying upon the decision of Flora vs. U.S.
which stated that our tax system is voluntary, cannot be consid‐
ered to be acting with “willful” or “evil” intent as formulated in
the Bishop case. The Supreme Court in the Bishop case said, “it
is not the purpose of the law to penalize frank differences of
opinion.” If the government were to prosecute you without evi‐
dence of willfulness, it would be the same thing as prosecuting
you for murder without having a witness, or even a body.
A citizen is entitled to rely on an official interpretation of the
law, even if mistaken. See U.S. vs. Barker, 546 F.2d 940 (1976),
District of Columbia. In this case, the Federal Court of Appeals
cites the Model Penal Code which states the defense as follows:
“A belief that conduct does not legally constitute an
offense is a defense to a prosecution…when (b) he acts
in reasonable reliance upon…a judicial decision,… or…
an official interpretation of the public officer charged by
law for the administration or enforcement of the law.”
Sec. 204 (3)(b).
Again, the individual has no patriotic duty to volunteer any
more than what the law requires. The Supreme Court in Gregory
vs. Helvering, 293 U.S. 465 said it in plain words:
“The legal right of the taxpayer to decrease the
amount of what otherwise would be his taxes or alto‐
gether avoid them by means which the law permits,
cannot be doubted.”
I applaud your research and study of the law, and urge you
to continue. If you have any questions, please do not hesitate to
call me.

Yours very truly,

Guy Curtis, Attorney at Law
Imperial, Nebraska

18

Chapter 5: My Challenge Offer
I
studied the Fifth Amendment issue for years before I felt positive
that the government has a severe conflict with the Fifth Amendment
and its “voluntary” filing requirement. I am completely convinced
that the government is abusing the Fifth Amendment severely every
time it indicts an individual or civilly penalizes an individual for not fil‐
ing a return. It saddens me to think that our government resorts to skull‐
duggery to get away with such abuse, but unfortunately it is true.
My $50,000 Challenge
Once I understood the problem, I tried to think up a way that I
could call attention to the situation and at the same time, convince peo‐
ple that I am right. I decided at that point to offer a $50,000 reward to
anyone who could answer these questions:
1. How could I file a tax return without waiving my rights protected
by the Fifth Amendment?
2. What statute in the current Internal Revenue Code makes me li‐
able to pay an income tax?
Melvin Belli Tries to Collect
Soon after I started advertising my reward, the famous “palimony”
attorney Melvin Belli applied for the reward. He even threatened to sue
me if I did not send him the $50,000 immediately. Mr. Belli said that the
way I could file a tax return without waiving my rights would be to do it
through an attorney (such as himself, of course). He suggested that I give
to the attorney my Power of Attorney to file returns for me, and also that
I give him the money for my taxes, which would be placed in the attor‐
ney’s trust account. The attorney would then file the return and pay the
IRS out of his trust fund. The attorney would, however, file the return
with a code number on it known only to me and to him. He would not
put my name and address on the tax return, but simply sign the return
as the preparer, using my Power of Attorney.
Obviously, the IRS would then have to come to the attorney to ask
19
for the name of the individual who was represented by the return. The
attorney would stand on attorney‐client privilege and refuse to identify
me, thereby preserving my Fifth Amendment protected rights!
Well, even though it seemed like quite a bit of trouble if I were to
file in this manner in order to still preserve my rights, I was pleased with
Mr. Belli’s answer to my question because he was so creative. I informed
him that he had basically proven my point: there is definitely a Fifth
Amendment problem if filing tax returns is required and not voluntary.
I informed Mr. Belli that he did not win the reward, however, be‐
cause if the IRS tried to prosecute me criminally for “willful failure to file
returns” (Section 7203 of the IRS Code) or if the IRS proceeded civilly
against me, in my defense I would ultimately have to put the attorney on
the courtroom stand as my witness and have him testify that he had filed
a return for me.
Of course, if I had to have him so testify in order to defend myself,
the IRS would be forcing me to waive my rights supposedly protected by
the Fifth Amendment in order for the IRS to consider my return as filed.
I encouraged Mr. Belli to sue me for the money in order to publicize my
point, but he chose not to do so.
William Cohen Tries to Collect
Another excellent criminal trial attorney from California, Mr. Wil‐
liam Cohen, next applied for the reward. He explained that he felt one
could file a return without waiving his Fifth Amendment protected
rights by filing two returns. The first return would contain financial in‐
formation only—no identifying information. The second return would
contain the name and other identifying information, but indicate Fifth
Amendment objections on each and every specific question concerning
income and deductions.
I agreed with Mr. Cohen that this approach would not require me to
waive my Fifth Amendment protected rights when I mailed the returns,
but if the IRS proceeded against me, I would have to testify in my de‐
fense that I had mailed returns containing, in toto, all the information re‐
quired, and I would have to identify them and at that point I would be
waiving my rights.
20
Chapter 5: My Challenge Offer
Others Are Still Trying to Collect
After six years, I am still offering the reward. One individual, a Mr.
Charles Ostman, sued me in Federal Court in Seattle, Washington with
an absurd theory of law, but the judge decided the case in my favor and
even granted me my costs. See Ostman vs. Conklin, Civ. #C92‐1371C;
USDC Seattle, 1992.
The judge also referenced contract law in order to set aside Mr.
Ostman’s objection to me being the proper arbiter of the reward that I
had offered.
The point is that no one can answer my two questions: it is simply
impossible for me or anyone else to file a tax return without waiving
Fifth Amendment protected rights; and there simply is no statute or pro‐
vision in the Internal Revenue Code that makes an individual liable to
pay the income tax.
What Statute Makes a Taxpayer Liable to Pay?
The second part of my reward involves showing me which statute
makes me liable to pay an income tax. There are only two ways that an
individual may be made liable and therefore legally owe an income tax:
first, an individual may become liable by voluntarily filing a tax return;
or second, an individual may become liable if the IRS files a return for
him.
However, law requires the IRS to follow definite and involved pro‐
cedures if the IRS decides to file a return for an individual who has not
filed. If a knowledgeable person decides he wants to fight such action by
the IRS, he can force the agency to expend a lot of time and energy fol‐
lowing through with its assessment.
My New $200,000 Challenge
After all this time, no one has even come close to collecting my
original $50,000 challenge or its successor, my $100,000 challenge. I dou‐
bled my $50,000 offer to $100,000 upon the publication of the first edition
of this book. With the publication of my second edition, I doubled it to
$200,000. Visit my web site (http://www.anti‐irs.com) and find the num‐
ber of my current edition. Multiply it times $100,000 for the new offer!

21
Chapter 6: My Tenth Circuit Case
B
eginning in 1985, it took me over seven years of thinking about
the Fifth Amendment as it relates to the income tax to become ab‐
solutely convinced that the government has no legal way around
the Fifth Amendment conflict with its alleged requirement to file 1040
tax returns.
If Americans were more concerned about waiving their Fifth
Amendment protected rights, the IRS would no longer be able to rou‐
tinely use information on tax returns in criminal tax cases; nor would it
be able to proceed civilly against individuals and later turn the civil case
into a criminal prosecution once it obtained enough information through
the civil process to determine that the case might have criminal potential.
As we have seen, law requires the IRS to warn the public that the
agency may use the information criminally whenever it wishes to, but
most of us overlook this warning. Strangely, the compliant individual is
at much more risk in our convoluted system than the individual who
stands on the constitutional protections of his rights. The only reason
that the present hated tax system continues to work is because individu‐
als continue to voluntarily waive their rights and file tax returns.
Forcing the First Amendment Issue in Court
During my research, I discovered that the court system and the IRS
are schizophrenic in their interpretation of this Fifth Amendment prob‐
lem. I became bound and determined to figure out a way to raise the
Fifth Amendment issue and to put the court in a position where it would
have to come up with a decision that would make my point.
Years ago, when I started to criticize the IRS publicly, the IRS classi‐
fied me as an illegal tax protester. I sued the IRS under the Privacy Act to
get the classification removed. I lost in the Tenth Circuit Court of Ap‐
peals, but one judge did rule in my favor with an eloquent opinion that
really put the IRS in its place. Nonetheless I was, by a vote of 2 to 1 of the
Appeals Court panel, branded an illegal tax protester for the rest of my
life. This was primarily because I had dared to criticize an agency that
deserves criticizing.
22
Judge McKay dissented in my case, Conklin vs. IRS (an unpub‐
lished case, circa 1982), with his opinion from U.S. vs. Amon, 669 F.2d
1351 (1981) which follows:
McKay, Circuit Judge, (dissenting):
It makes clear that IRS activities with regard to tax protest‐
ers extend well beyond the manifestly permissible policy of us‐
ing admissions of a crime against the criminal, to the suspect
policy of punishing political protesters—or in other words, of
punishing citizens for exercising a right which is front and cen‐
ter to the First Amendment. Indeed, if the objective of the IRS
were only to prosecute the more serious or frequent violators
of the tax laws, the word ‘protester’ would be irrelevant. As the
trial court found, the object of the selectivity is to shut up the
‘outspoken.’
The test for determining whether a prosecution is unconstitu‐
tionally selective is two‐pronged. To support a selective prosecu‐
tion claim a defendant bears a heavy burden of establishing, at
least prima facie (1) that he has been singled out for prosecution,
and (2) that the selectivity for prosecution was invidious or in
bad faith, and that it was based on such impermissible consid‐
erations as race, religion, or the desire to prevent or inhibit the
exercise of such constitutional rights as free speech….
…Here, the IRS declared (and the court believed) that it in‐
tended to select and silence outspoken ‘tax protesters.’ Thus,
both the fact of selectivity and its motivation to silence the out‐
spoken are proved by direct evidence. I find it impossible to be‐
lieve that the majority really means what it is saying. Surely it
does not mean that even though the government declares its in‐
tent to select persons for prosecution in order to silence them,
the ensuing prosecution does not violate constitutionally pro‐
tected interests.
It is beyond cavil that this conviction would fall if the trial
court had found this defendant to have been selected for prose‐
cution because he is black. Nor would there be any doubt if the
trial court had found this defendant had been selected for prose‐
23
cution by the IRS because he is on the President’s political ene‐
mies list. Similarly, there can be no doubt that this conviction
would fall if the trial court had found this defendant had been
selected for prosecution because he protested in writing that:
There is nothing sinister in so arranging ones affairs to keep
taxes as low as possible. Everybody does so, rich or poor, and all
do right, for nobody owes any public duty to pay more than the
law demands: taxes are enforced exactions, not voluntary contri‐
butions. To demand more in the name of morals is mere cant.
Commissioner vs. Newman, 159 F.2d 848 (1947), Judge Learned
Hand, dissenting.
Whatever else the trial court may have found, its express lan‐
guage compels the conclusion that it found that this defendant
had been selected for prosecution because he was an ‘outspoken
protester.’ To hold that such selectivity is permissible would
make the examples of selectivity I have just set out equally per‐
missible. For First Amendment purpose, nothing distinguishes
an ‘outspoken protester’ against existing tax laws from one who
protests as Judge Hand and Justice Frankfurter have protested.
By definition, each and every instance of selective prosecu‐
tion which reaches us on appeal involves a person who has al‐
legedly violated some law. Nevertheless, the usual carte blanche
of the prosecutor in seeking the convictions of these persons is
subject to the requirement that the decision to prosecute not be
motivated by factors by which the government cannot constitu‐
tionally distinguish one violator from all others. If administra‐
tively, the government has not the resources to prosecute every
violator, if the government therefore must pick and choose from
among all violators, it may not do so based on its desire to shut
the taxpayer up. However reprehensible may be citizens who
object to paying the taxes which make possible an acceptable de‐
gree of civilization, the First Amendment protects the right to
make those objections. If not, then the constitutional guarantee
for Free Speech is illusory. The right to protest against govern‐
ment policies lies at the core of First Amendment values….
Where, as here, the government seeks to silence a citizen pre‐
24
cisely because it detests or fears the citizen’s spreading of ideas
relating to effective self‐government, the Constitution forbids the
government action unless the annunciation of those ideas
amounts to such clear and present danger to the security of the
Republic that it falls outside the ambit of otherwise protected po‐
litical speech.
While one could argue that the history of the American Revo‐
lution supports a finding that tax protests present a clear and
present danger to the Republic, there is no argument before us
that they do; no court has so held; and it is doubtful that any
court is prepared so to hold. Of course there is a danger that ille‐
gal tax practices will become more widespread if the govern‐
ment fails to strike swiftly and decisively in gagging or at least
intimidating the most outspoken tax protesters. However, in a
day in which even a computerized search is incapable of tabulat‐
ing the fractions of a citizen’s conduct which the government
agents now have discretion to charge serially or cumulatively as
alleged violations of the law, the necessity of subjecting that dis‐
cretion to constitutional scrutiny is manifest and certain.
It seems a puny enough effort to suggest that the limit on the
dangers of unconstitutional discrimination be drawn at least
where the hapless citizen can carry his heavy burden to show
that he was singled out because (to use the trial court’s express
language) ‘he is an active and outspoken protester.’
It is hard to imagine a kind of political protest more consis‐
tent with the most cherished traditions of this nation than pro‐
test focusing on taxation. Certainly no form of protest is more
American. (Furthermore, tax protest is neither modern nor
American in its origin. Many people venerate one who com‐
mented on the publicans who collected the taxes in his time.) It
was, after all, protest against the Stamp Act which helped set in
motion that chain of events which won for this nation its inde‐
pendence from a repressive King George and led to the enshrin‐
ing in the First Amendment of the right to protest.
Since the trial court seemed justifiably confused as to the
proper application of the first prong of the test, this case should
25
be remanded to give the trial court an opportunity to reconsider
the matter in light of this clarification of the various means by
which selectivity may be proved. The possibility that the confu‐
sion may have affected the finding that selectivity was motivated
by a desire to suppress outspokenness suggests that the trial
court not be bound by that finding on remand but rather be
permitted to reconsider whether both selectivity and illegal pur‐
pose were proved in this case. I would therefore reverse and re‐
mand for reconsideration by the trial court.
As you can see from Judge McKay’s dissenting opinion, apparently
neither the IRS, nor at least the other two Tenth Circuit judges on the
panel with Judge McKay for this case, have much respect for the First
Amendment and its freedom of speech guarantee when the federal in‐
come tax is involved. It is a shame there are not more judges like Judge
McKay.
During my research I discovered that the classification by the IRS of
anyone as an illegal tax protester is a project of its Criminal Investigation
Division (CID), so I came up with a new idea. I believed it was a new
idea because I could not find any evidence in my research that anyone
else had ever tried it.
A New Insight on the Problem
In 1986, I went to several attorneys and other tax professionals and
explained my concerns of wishing to comply with the filing law if I
must, but not wanting to waive my rights in order to do it. All of the pro‐
fessionals I talked with agreed that I had a definite dilemma: since the
IRS by officially classifying me as a tax protester had essentially notified
me that I was under scrutiny by the CID, I obviously had reason to be
concerned about witnessing against myself with anything I said or sub‐
mitted, so there was no way I could file a return without waiving my
Fifth Amendment protections. They put their opinions in writing, on
their letterheads.
I Filed an Unsigned Return with a Challenge to the IRS
In order to comply with the alleged filing requirement, and at the
same time prevent the IRS from using criminally any of the information
26
that I might voluntarily give, I filed an unsigned return. I also enclosed
photocopies of the letters from the attorneys I had contacted, and said in
my cover letter that I was relying on their professional evaluations.
As I stated earlier, I must emphasize that as I look back over more
than 20 years of paralegal experience, this strategy turned out to be a
mistake and I do not recommend that anyone file an unsigned tax return.
I include the story here merely for the sake of being historically complete
with my narrative.
I attached an IRS Power of Attorney Form 2848 on which I gave
power of attorney to the IRS District Counsel to sign the returns for me if
he could figure out how to do so without waiving my Fifth Amendment
protected rights. The attorneys in private practice could not figure out
how I could do it; maybe the attorneys working with the agency could!
The IRS accepted and processed my return and never said a word about
the manner in which I had mailed it.
I Filed a Second Unsigned Return
In the Spring of 1988, I filed a return for the tax year 1987 in the
same manner as I had done the previous year, for 1986. However, this
time the IRS fined me $500.00 for filing a frivolous return. Apparently
some sharp‐eyed return processor or agent figured my action was an ex‐
cuse for the agency to collect another 500 bucks from me and perhaps
put me in my place for doing what I did.
I did not think the IRS had any real basis for the fine, because it had
not objected the first time I did it, and in the meantime I had come across
several cases where it had been held that a return was not really a return
unless and until it had been signed.
So I had concluded that I was on relatively solid ground. If my un‐
signed return was not even to be officially considered as a return, how
could the IRS assess a frivolous return penalty? However, after I was hit
with the frivolous return penalty, I could only conclude that once again
the IRS was making up its own law. An unsigned return was not a return
when the IRS did not want it to be a return, and yet the unsigned return
was a return when the IRS wanted it to be a return—i.e., when the IRS
wanted to assess a fine!
27
I Sued the IRS—Again
I paid the percentage of the fine required by statute to have stand‐
ing to sue the IRS (15%), and filed suit in federal court. Judge Notting‐
ham, a federal district court judge in Denver, Colorado finally informed
me (after putting off his decision while he wrestled with my issue for a
couple of years) that he had a real problem ruling on my lawsuit. The
problem, he said, was that if he ruled in my favor, allowing me to file
without signing, he might overturn the federal tax system. He also real‐
ized that if he ruled against me, he would be ruling against all of the at‐
torneys whose opinions stated that I would be forced to waive my Fifth
Amendment protected rights. Clearly, he did not want me to go on to the
Supreme Court which has ruled time and again that no one may be
forced to waive constitutional protections in order to comply with a law.
Judge Nottingham stated in a hearing on August 27, 1992, in federal
district court in Denver, (Case No. 89 N 1514):
“And one of the fatal things that I—or things that you are
overlooking—I will not say it is fatal, although it appears to me
it may be fatal—is when you do not sign a return, the reason
that the tax collection system is frustrated is because you are
not signing under the penalty of perjury. I mean, if everybody
could do what you did, the tax collection system would col‐
lapse, which you know I am sure some people would argue is
not a bad result. But it is not one that I am in a position to bring
about.”
Notice that the judge basically told me that I could not possibly win
because it would overturn the federal tax system. Of course, that was the
point of my lawsuit to begin with!
After thinking about the case for five years(!), he decided to rule
against me. He took the position that the Fifth Amendment does not ap‐
ply to tax returns because the Fifth Amendment applies only to “com‐
pelled testimony.” In other words, the Fifth Amendment only applies to
information that individuals are required to give to the government.
Since I had argued that the Fifth Amendment applies to tax returns
because I felt that their filing was compelled by the penal provisions of
28
the law, it is clear that Judge Nottingham took the position that indi‐
viduals are not required to give information to the government on 1040
returns (or, in other words, he was talking like the IRS talks by saying
that filing is “voluntary”), and that is why the Fifth Amendment cannot
be applied.
The Court Rules in Opposition to the U.S. Supreme Court
Judge Nottingham had to rule directly against the position of the
Supreme Court in Garner vs. U.S., supra. Remember, the Garner Court
took the position that information on tax returns is “compelled testi‐
mony” for purposes of the Fifth Amendment.
Furthermore, Judge Nottingham also accused me of taking a blan‐
ket Fifth Amendment position, even though I certainly had not done
that. In fact, I had completely filled out the return and provided the sup‐
porting documentation and paid the tax that I voluntarily self‐assessed.
The Supreme Court took the position that if an individual so much as
even admits to having books and records, he waives the Fifth Amend‐
ment protections of his rights because the Fifth Amendment does not
apply to documents, it only applies to testimony. See U.S. vs. Doe, 104
S.Ct. 1237 (1984).
Judge Nottingham also ruled that “Plaintiff has wholly failed to
persuade me that truthful completion of the IRS Form 1040 or any re‐
lated forms would tend to incriminate him.”
The Judge Answers a Question I Did Not Ask
The judge answered a question that I did not ask. How could the
judge know if a piece of information would incriminate me? There is no
way either of us could know that! But I was not arguing that I might in‐
criminate myself. I was arguing that I could not be required to waive the
Fifth Amendment protections of my rights. As a layman, there is no way
I could be presumed to know if a piece of information would be incrimi‐
nating or not. His opinion duly impressed me again as to how tricky the
courts can be in their “Alice in Wonderland” language.
I appealed the case to the Tenth Circuit Court of Appeals. The Tenth
Circuit upheld the lower Court and thus also took a position exactly op‐
posite to the position taken by the Supreme Court in the Garner case.
29
The circuit court judges held that information on a tax return is not com‐
pelled, and the judges also accused me of taking a blanket Fifth Amend‐
ment position even though I had answered all the questions.
I could not believe it! It was as if the court had not even looked at
my return! Then the Tenth Circuit Court sent the case back to the lower
court for any further recommendations by Judge Nottingham. The gov‐
ernment seized the opportunity and asked Judge Nottingham to order
me to pay the amount it estimated it had cost the IRS in attorney time to
respond to my complaint. I was amazed when the attorneys for the IRS
submitted a $6,000 bill for their time! I was really flabbergasted when
Judge Nottingham assessed me the entire amount—this for raising the
“frivolous” argument of law that individuals are required to waive their
Fifth Amendment rights when they file tax returns!
For me, the judge’s action underscored the unfair bias of the courts
against someone who is challenging the incongruities of our income tax
laws. Think about the contradictions in this scenario: The judge was say‐
ing that this was an obviously frivolous issue—an issue that even I, a
layman, should immediately realize could be quickly defeated. Yet when
the government submitted a $6,000 bill for the time that it required for
two professional attorneys to defeat my position, the judge accepted
their bill and the many hours it represented without question, and con‐
sidered it appropriate to pass it along to me in its entirety!
I Appeal to the Supreme Court
I guess I should have been grateful that the judge did not add his
time to my bill, too. It took him five years to evaluate my “easily under‐
stood as frivolous even by a layman” argument! Of course, I appealed
once again, this time on the issue of the newly‐imposed $6,000 worth of
sanctions. Unfortunately, the Supreme Court was too busy with other far
more important issues. It decided to not even consider my objection to
the $6,000 sanction.
Putting aside my outrageous $6,000 fine, do you now understand
why the IRS continually refers to the filing of tax returns as voluntary?
The IRS knows that if it stated that an individual is required to file tax re‐
turns, a Fifth Amendment confrontation would be created, so the IRS en‐
forces the idea that tax returns are indirectly required. The IRS requires
30
you to volunteer, and then punishes you if you chose not to volunteer.
(Did I just hear you say that you feel like Alice in Wonderland, trying to tie
the Queen down to fixed definitions for words?)
Like the attorneys I consulted for their learned opinion on the law, I
have a formal education which I have used professionally. Therefore, af‐
ter all this, I decided to put my own understanding of the language of
the Tenth Circuit opinion into a written opinion. If you write me for a
copy of it, here is what it will say:
Thank you for your recent request. I appreciate your interest
in my litigation efforts in the 10th circuit of the federal courts.
I am a Communication Expert and have made an extensive
study of the morphosyntax of English. I have a Masters Degree
from the University of Colorado in Communications and I have
over fourteen years of experience teaching English and Commu‐
nications at the elementary, junior high, high school, and college
levels.
In my recent case that I filed in federal court, both the lower
(district) court and the appeals (circuit) court ruled against my
argument that individuals waive their Fifth Amendment pro‐
tected rights when they file tax returns. The courts took the posi‐
tion that my argument was frivolous because the Fifth Amend‐
ment only applies to “compelled testimonial communication.”
The circuit court took the position that the income tax Form
1040 is not “compelled testimonial communication.” The court
stated:
“In granting the IRS’ motion for summary judgment,
the court found Conklin’s argument that his refusal to
sign his 1987 Form 1040 on the grounds that his signa‐
ture would violate his Fifth Amendment rights was re‐
jected in Betz vs. United States, 753 F.2d 834, 835 (10th
Cir. 1985). (‘It is well settled that the Fifth Amendment
general objection to filing a proper tax return is not a
valid claim of the constitutional privilege.’) Conklin’s
contention that his classification by the IRS as an illegal
tax protester justifies invocation of the Fifth Amendment
31
privilege misunderstands the nature of the… privilege…
which protects against compelled testimonial communi‐
cations… (emphasis mine) and Plaintiff has wholly
failed to persuade me that truthful completion of the IRS
Form 1040 or any related forms would tend to incrimi‐
nate him. (R. Vol. II at p. 6).
“On appeal, Conklin posits the following issues:
Whether an individual who has been classified as an il‐
legal tax protester has a valid concern about waiving his
Fifth Amendment protected rights when he signs a fed‐
eral income tax return; and whether an individual who
has been advised by several attorneys that he will waive
his Fifth Amendment protected rights on a federal tax
return should be penalized when he relied in good faith
on the advice of counsel. The government responds that
the District Court correctly held that Conklin was liable
for the $500.00 frivolous return penalty imposed under
Section 6702. Further, the government urges that we
should impose sanctions against Conklin for bringing
this frivolous appeal. We agree.”
As you can see, the Court has taken the position that the Fifth
Amendment does not apply to the income tax because the in‐
come tax is not a “compelled testimonial communication.”
Black’s Law Dictionary defines “compel” as follows:
Compel: To urge forcefully, under extreme pressure. The
word “compel” as used in constitutional right to be free
from being compelled in a criminal case to be a witness
against one’s self means to be subjected to some coer‐
cion, fear, terror, inducement, trickery or threat—either
physically or psychologically, blatantly or subtly; the
hallmark of compulsion is the presence of some opera‐
tive force producing an involuntary response. U.S. v. Es‐
candar, C.A. Fla., 465 F.2d 438, 442.
Furthermore, the Random House Dictionary of the English
32
Language defines “compel” as follows:
1. To force, drive, esp. to a course or action. 2. To secure or
bring about by force. 3. To force to submit; subdue. 4. To over‐
power.
As an expert on the English language, it is my opinion that
“compel” means to force or to require someone to do some‐
thing. A compelled action would be an involuntary action. A
compelled action is the opposite of a voluntary action.
The circuit court has obviously sanctioned me because I have taken
the position that individuals are required to give the government infor‐
mation on 1040 Forms. The court has taken the position that providing
information to the government on 1040 forms is not “compelled.” Thus,
from an English language standpoint, I can only conclude that if an in‐
come tax form is not “compelled” or required, it must be voluntary. This
is also why the court ruled that the Fifth Amendment does not apply.
For a more in‐depth analysis of the word “voluntary” and other
words related to the income tax, I suggest that you review my comments
on the “Words and Phrases of the Internal Revenue Code” in the Ap‐
pendix to this volume.
I further suggest that you obtain a copy of the opinion from the
Tenth Circuit Court of Appeals (in Denver) so that you will have your
own official version of a case in which a circuit court rules that the in‐
come tax form is not compelled (required). You may order the case from
the United States Court of Appeals, Tenth Circuit, 1823 Stout Street,
Denver, Colorado 80257. Ask for a copy of the Order and Judgment in
Conklin vs. United States of America, No. 94‐1213.
Curiously enough, although the Tenth Circuit Court has taken the
position in this particular case that providing information on income tax
forms is voluntary, since this case is not published, the holding by the
judges cannot be used as law. Nonetheless, if you are one of the many
individuals in the country who believe that the income tax is not com‐
pelled, I think you should order and have on hand a copy of the appel‐
late decision so you can see for yourself that the Tenth Circuit judges
agree with you, even though they are not willing to let the world know
33
their thoughts on the issue.
My attorney, Guy Curtis, also wrote an analysis of the Tenth Circuit
Opinion. His analysis follows:
In response to your request for my legal opinion regarding
the recent decisions in William T. Conklin vs. IRS, Civil action
No. 89 N 1514 filed May 2, 1994, in the U.S. District Court for the
District of Colorado, and the appellate decision in this same case
by the Tenth Circuit Court of Appeals, No. 94‐1213 filed Sep‐
tember 10, 1994, affirming the District Court’s opinion, these de‐
cisions can be interpreted in two ways:
First, that the information given on an income tax return is
not “compelled testimonial communication”. This implies that
an individual is not required to give return information to the
IRS.
If we follow this reasoning to its logical conclusion then it
would be absurd to penalize a person for not signing a return
that is not required. And it is doubly absurd to sanction him for
appealing the issue to the appellate court.
My second interpretation would be that information given on
a tax return is compelled, i.e., that the individual is required to
give it, but because it is not viewed as “testimonial communica‐
tion” the Fifth Amendment protections do not apply.
The second interpretation directly contradicts the U.S. Su‐
preme Court in Garner v. United States, 424 U.S. 648 (1975) rul‐
ing that the information on a tax return is compelled testimonial
communication.
The Garner Court specifically stated:
“The information revealed in the preparation and fil‐
ing of an income tax return is, for purposes of Fifth
Amendment analysis, the testimony of a witness.”
Furthermore, in the case of U.S. v. Doe, 465 U.S. 605, 79 L.Ed.
2d 552, (1985), the Supreme Court held that the act of producing
subpoenaed documents would involve testimonial self‐
incrimination. Therefore ‘testimonial’ does not exclude every‐
34
thing except oral testimony. The holding in the Doe case sup‐
ports the statement in Garner that the privilege applies to writ‐
ten as well as oral compelled testimony that may have testimo‐
nial aspects and an incriminating effect.
It seems clear that the District Court erred in stating that Mr.
Conklin took a general Fifth Amendment objection since he did
provide specific personal information for assessing the tax with
supporting documentation.
Furthermore, it was clearly Mr. Conklin’s intent to raise and
resolve this issue at an administrative level with the IRS. Mr.
Conklin’s good faith attempt to properly resolve the 5th
Amendment issue is evidenced by the Power of Attorney he
gave to the IRS, and the copies of legal opinions he received
from attorneys and tax consultants outlining the Fifth Amend‐
ment dilemma.
By volunteering such information there is also no question
but that Mr. Conklin waived his Fifth Amendment protected
rights as to the information given. However, there was no
waiver of those rights as to signing the return.
Since Mr. Conklin did not make a general Fifth Amendment
objection, the ruling in Betz v. United States, 753 F.2d 834 10th
Cir. 1985) cited by the District Court and the Tenth Circuit Court
does not apply.
As Mr. Conklin would have waived his Fifth Amendment
protections by signing the tax return, and would have authenti‐
cated information that could be used in a criminal case (such as
Doe and Garner, supra), his concerns were not frivolous, particu‐
larly in view of Mr. Conklin’s classification by the IRS as an “il‐
legal tax protester.”
Regarding my own qualifications and experience, I have been
a licensed attorney for over thirty years and admitted and cur‐
rently in good standing to practice law in the State of Nebraska
as well as in the 7th, 8th, 9th, and 10th U.S. Courts of Appeals,
the U.S. District Courts for Nebraska and Hawaii, and the U.S.
Tax Court, and I have served as an elected prosecuting attorney
35
for over twenty years. In addition, I have handled a number of
criminal tax trials in federal courts as a defense attorney.
Sincerely,
Guy Curtis, Attorney at Law
Imperial, Nebraska
My Petition for Certiorari challenged the constitutionality of the
statute that allows the Court of Appeals to sanction without any due
process. The essence of my Supreme Court argument is as follows:
William T. Conklin, the appellant in this action, hereinafter
referred to as “Conklin,” was classified as an illegal tax pro‐
tester by the IRS for his involvement in the Church of World
Peace. His case was set aside for special scrutiny by the Inter‐
nal Revenue Service Criminal Investigation Division. There can
be no question that he was confronted with substantial and real
hazards of incrimination by virtue of the Criminal Investiga‐
tion’s interest in his case. He became concerned about waiving
his Fifth Amendment protected rights on a 1040 return after
speaking with several attorneys who advised him that he does
waive his rights when he signs a return.
So Conklin, in an attempt to comply with the law and not
voluntarily waive his rights, filed a return with payment and
the necessary assessment information. He did not sign the re‐
turn, but instead he provided a power of attorney form giving
the IRS power of attorney to sign the return if they could do so
without waiving his rights.
The IRS assessed Conklin a $500 penalty for filing a frivo‐
lous return. Conklin paid the fine and filed a claim for a re‐
fund. The IRS denied the claim and Conklin filed suit in 1989.
The lower Court ruled May 2, 1994 that the IRS imposition
of the penalty was justified, and the Tenth Circuit affirmed the
opinion on September 10, 1994 and sanctioned Conklin with at‐
torney’s fees and double costs. The Tenth Circuit sent the case
back to the District Court for its recommendations and the Dis‐
trict Court ruled on January 13, 1995 that Conklin should be
36
sanctioned approximately $6,000 plus double costs. The Dis‐

trict Court told Conklin that due process does not apply. Conk‐
lin appealed and on June 6, 1995, the Tenth Circuit Court of
Appeals ruled that Conklin could not contest the fairness of the
sanction at the remand to District Court.
REASONS FOR GRANTING THE WRIT
The court ruled that: “Plaintiff misunderstands the nature
of the fifth Amendment Privilege. It protects against compelled
testimonial communications.” Conklin is a pro se and he natu‐
rally has assumed in the past that the testimony on a tax return
is a “compelled testimonial communication” in view of the fact
that the IRS continually indicts individuals for willful failure to
file tax returns under 26 USC 7203. Since the general public be‐
lieves that information on a tax return is “compelled” and since
the Supreme Court has ruled in Garner v. United States, 424
U.S. 648 (1975) that information on a tax return is compelled
testimony for the purposes of the Fifth Amendment, it is not
unreasonable for a layman to conclude that giving information
to the government on a tax return is compelled and that it is
testimonial.
The Garner Court stated:
Government compels the filing of a return much as it
compels, for example, the appearance of a “witness” be‐
fore a grand jury (p. 652).
The Garner Court went on to say:
The information revealed in the preparation and filing of
an income tax return is, for purposes of Fifth Amend‐
ment analysis, the testimony of a “witness” (p. 656).
The court has taken the position that Conklin’s position is
frivolous because testimony on a tax return is not compelled. The
Supreme Court in Garner ruled that testimony on a tax return IS
compelled and that it is Fifth Amendment testimony.
37
The court sanctioned Conklin with attorney’s fees and double
costs even though he relied on counsel. In sanctioning Conklin,
the Court held Conklin to the standards of an attorney in direct
violation of the law in Haines v. Kerner, 404 U.S 519 (30 L.Ed 2d,
1972).
Furthermore, the lower courts ruled that Conklin had taken a
blanket Fifth Amendment even though he completed a tax re‐
turn and provided copies of his tax records to the IRS. In the case
of United States v. Doe, 104 S. Ct., 1237 (1984), the Supreme
Court ruled that an individual waives his Fifth Amendment pro‐
tected rights if he admits to having records. Since by his filing
Conklin admitted to having records, and since he completed his
tax return and sent it to the IRS lacking only a signature, he
could not have taken a blanket Fifth Amendment position.
In view of the facts that the Supreme Court has ruled in Gar‐
ner, supra, that information on a tax return is “compelled testi‐
mony;” the District Court for the District of Colorado and the
Tenth Circuit have ruled that information on a tax return is not
“compelled testimony;” the lower courts have held Conklin to
the standards of an attorney in sanctioning him; and the Court
has taken the position that an individual takes a blanket Fifth
Amendment simply by withholding a signature in contradiction
of Doe, supra, this Court should correct the refusal of the Court
of Appeals to consider Supreme Court cases.
The District Court and the Court of Appeals denied any sort
of due process to Conklin and sanctioned him on an issue of first
impression in spite of the fact that the lower court ruled directly
opposite the Supreme Court. Such a position violates the Su‐
preme Court law in Chambers v. NASCO, Inc. 1991, 111 S. Ct.
2123, and McKnight v. General Motors Corp, 114 S. Ct. 1826
(1994). It also takes a position opposite that taken by the Seventh
Circuit Court of Appeals in Brooks v. Allison Div. of Gen. Mo‐
tors Corp., 874 F.2d 489 (7th Cir. 1989) since the government did
nothing to mitigate the expenses. The Court of Appeals ruled
that the petitioner could not raise the issue of due process in the
District Court on remand. It is the petitioner’s position that the
38
issue of due process could not be raised until a final determina‐
tion of the amount of sanctions had been made by the court.
Since the Court of Appeals remanded the case to the District
Court for its recommendations, the issue of sanctions was not
arguable until the final determination as to the amount of the
sanction was made. Therefore, the instant appeal is the proper
time to raise due process and fairness issues.
Rule 38, the Appellate Rule that allows the Circuit Courts to
sanction litigants, is unconstitutional because it allows the Cir‐
cuit Court to sanction a litigant and does not allow any meaning‐
ful opportunity for the litigant to contest the sanctions. Due
process requires that before sanctions are imposed, the offender
be afforded fair notice and an opportunity to be heard. Conklin
had no reasonable notice that he would be fined $6,000 and he
had no reasonable opportunity to respond. Since Rule 38 does
not mandate due process for the offending litigant, it is unconsti‐
tutional.
CONCLUSIONS
The issues raised here involve a substantial question of law
about the imposition of sanctions by the Circuit Court of Ap‐
peals when there has been no determination that the petitioner
acted in bad faith and when the Circuit Court of appeals for the
Tenth Circuit has failed to consider the law in McKnight and
Chambers, supra. There is also a substantial question of law
about whether Rule 38 is constitutional when it allows the Court
of Appeals to sanction an offending litigant without an opportu‐
nity to be heard. Furthermore, since the government did nothing
to mitigate the damages, the decision of the Tenth Circuit is in
direct conflict with the ruling in Brooks v. Allison Div. of Gen
Motors Corp., supra.
Wherefore, it is prayed that this honorable Court will grant the
Petition for a Writ of Certiorari.
And so the battle for truth continues.
39
Chapter 7: More Cases
T
he first case is that of Mary Ann Tavery vs. United States, 32 F.3d
1423, 1428‐30 (10th Cir. 1994). The IRS was happy because it won
this battle, but actually in the Tavery case the IRS lost the war
again since the Tavery case proves one more way that individuals who
file 1040 returns waive the Fifth Amendment protections of their rights.
Since the government cannot require individuals to waive their constitu‐
tional protection or their rights in order to comply with any law, then the
Tavery case stands for the proposition that the filing of 1040 returns
must be voluntary.
Tavery vs. United States
In Tavery vs. United States, the Court ruled that information on a
tax return may be put into any criminal case that involves a family
member or friend. That means if you file a tax return, information may
be disclosed in virtually any criminal case involving some person that
you might happen to know.
The Court in Tavery, supra, stated as follows:
The scope of the relevant inquiry on the financial inability
issue is broad. See United States vs. Barcelon, 833 F.2d 894, 897
and n.5 (10th Cir. 1987) detailing numerous factors to be con‐
sidered, including “the availability of income to the defendant
from other sources such as a spouse….” The factors to consider
include money sent to the applicant by his mother, Souder vs.
McGuire, 516 F.2d 820, 821 (3rd Cir. 1975), and transfers in
trust. United States vs. Schmitz, 525 F.2d 793, 794 (9th Cir.
1975) Opinion of Chambers, Chief Judge: “Financial inability
includes an inquiry into whether there is available to the de‐
fendant funds for his defense from other sources such as fam‐
ily, friends, trusts, estates, or defense funds.” United States vs.
Martinez‐Torres, 556 F. Supp. 1275, 1279 (S.D.N.Y. 1982). Un‐
der this broad test, we hold that the district court correctly de‐
cided that Ms. Tavery’s income and tax refunds were relevant
40
to the issue of Rev. Conklin’s eligibility for appointment of
counsel, and that the government’s disclosure of this informa‐
tion was therefore permissible under Section 6103(h) (4)(B).
Tavery had argued in her case that since the Department of Justice
obtained her income information from her tax return, the information
disclosure was an unlawful disclosure as she was not a party to the pro‐
ceeding. It is clear in this particular situation that Ms. Tavery waived her
Fifth Amendment protected rights when she filed the tax return and dis‐
closed the information that the government allowed into evidence.
Could the government have used Ms. Tavery’s tax return information
against her if she had been compelled to submit it?
Of course not, if the Fifth Amendment means anything. So the court
must have decided that she had volunteered the information on the re‐
turn. And of course the opinion in Conklin vs. United States, supra, is
consistent with this theory since the Tenth Circuit took the position that
information on tax returns is not compelled by the government. Ms.
Tavery voluntarily waived the Fifth Amendment protections of her
rights by filing her return and disclosing information.
Conklin vs. United States
I then filed a suit arguing that unrelated information on tax returns
cannot be disclosed in third party litigation. The Tenth Circuit ruled
against me on July 31, 1995 in an unpublished decision: William T.
Conklin vs. United States, No. 95‐1013 (Tenth Cir., July 31, 1995). Since
the Tenth Circuit declined to publish this decision, I will quote it here in
its entirety:
After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed R.
App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
In 1990 the Internal Revenue Service (IRS) revoked the tax‐
exempt status of the Church of World Peace (CWP). The CWP
then asked for a declaratory judgment regarding the revocation
41
of its tax exempt status. In the course of that case, the IRS intro‐
duced the tax returns of the plaintiff, who was a central figure in
the CWP organization.
Plaintiff subsequently filed this federal action pursuant to 26
U.S.C. Section 7431. He claims that the introduction of his tax re‐
turns violated 26 U.S.C. Section 6103. Section 7431 allows civil
suits against any employee of the United States who knowingly
or negligently discloses a return or return information in viola‐
tion of Section 6103. Id Section 7431(a)(1). The district court
granted the government summary judgment and denied plain‐
tiff’s summary judgment motion. Plaintiff now appeals. We have
jurisdiction pursuant to 28 U.S.C. Section 1291 and affirm.
The government contends that the IRS could properly dis‐
close this evidence under 26 U.S.C. Section 6103(h)(4)(B). That
section states:
A return or return information may be disclosed in a
Federal or State judicial proceeding pertaining to tax
administration but only… (B) if the treatment of an item
reflected on such return is directly related to the resolu‐
tion of an issue in the proceeding.
Plaintiff does not claim that the information in his return was
not an “issue in the proceeding” or that the information was not
“directly related” to the resolution of an issue, cf. Tavery vs.
United States, 32 F.3d 1423, 1428‐30 (10th Cir. 1994). Instead, he
claims that only one item on the return was relevant to the pro‐
ceedings and, consequently, it was error to introduce the entire
return.
“A statute’s plain meaning must be enforced.”
United States Nat’l Bank vs. Independent Ins. Agents,
113 S. Ct. 2173, 2182 (1993). “If the language is clear and
unambiguous, then the plain meaning of the words must
be given effect.” Resolution Trust Corp. vs. Love, 36 F.3d
972, 976 (10th Cir. 1994).
The statute clearly authorizes the IRS to disclose the entire re‐
42
turn even if only one part of the return is relevant. The statute
gives the government an option. Once the predicate condition is
met (i.e., an item on a “return is directly related to the resolution
of an issue in the proceedings,” 26 U.S.C. 6103(h)(4)(B)), then the
“return or return information may be disclosed,” id. 6103(h)(4)
(emphasis added.) Because the statute is phrased in the disjunc‐
tive, the government may disclose either the return or return in‐
formation once it satisfies that one of Section 6103 (h)(4)’s predi‐
cate requirements is met.
The government therefore did not violate section 6103 when
it introduced plaintiff’s entire tax return, and the district court
properly entered summary judgment for the government. Ac‐
cordingly, the judgment of the district court is AFFIRMED.
Well now, isn’t that interesting? The IRS may disclose your tax re‐
turn information in any criminal case involving a friend or family mem‐
ber and the IRS may disclose your entire tax return in any litigation if
only one small part of the return is relevant. Doesn’t this make it even
more clear that you waive your Fifth Amendment protected rights when
you file a tax return? Of course, that does not matter anyway since the
Tenth Circuit has also ruled that the Fifth Amendment only applies to
compelled or required testimony or information.
So, once again, either filing tax returns is required and the govern‐
ment is requiring individuals to waive their protections and their rights
(in which case any statute that requires the filing of tax returns would be
unconstitutional) or filing tax returns is voluntary so that the Fifth
Amendment does not apply. Either way, it is obvious that the IRS has a
severe problem. Once this cat fully gets out of the bag (i.e., once every‐
one understands these concepts), I think the income tax is dead. What do
you think?
United States v. Paul Robbins
In this remarkable decision, the U.S. District Court in San Jose, Cali‐
fornia, upheld Paul Robbins’ Motion to Dismiss a Summons isued by the
IRS. Robbins asserted that compliance with the summons would violate
his Fifth Amendment privilege against self‐incrimination.
43
The case number, should you wish to look it up, is C‐04‐4097‐JF and
the actual Order Granting Respondent’s Motion to Dismiss is included in
the Appendix. Note that the case was listed as unpublished, “Not for Ci‐
tation.” We’re publishing it here. Apparently Judge Jeremy Fogel is re‐
luctant to let anyone else apply the findings of the case to his or her own
case. But we’re not!
44

Chapter 8: The Internal Revenue Code
T
he Internal Revenue Code is a thick and very boring book. It is
composed of hundreds of complex statutes and it is written in
very complex and difficult to understand language. It is the law
book that our government uses as the basis of the income tax. I have
looked through the entire Internal Revenue Code over a period of almost
twenty years now, and I have not found any statute in the Code that
makes an individual liable to pay the income tax. There is a statute, Sec‐
tion 6020(b), that says the government may file a return for an individual
if the individual does not file a return. However, the individual does not
become liable to pay the tax through any statute in the Code, he only be‐
comes liable if the government files a return for him, or if he personally
voluntarily files a return. We will now examine some of these code sec‐
tions.
Section 6012
Sec. 6012. Persons required to make returns of income.
(a) General rule.
Returns with respect to income taxes under subtitle A shall
be made by the following:
(1)
(A) Every individual having for the taxable year gross income
which equals or exceeds the exemption amount…
“Returns with respect to income taxes under Subtitle A shall
be made by the following…”
IRS Privacy Act Notice 609 (Rev. Oct. 1986).
Section 6020(B)
Sec. 6020. Returns prepared for or executed by Secretary.
(b) Execution of return by Secretary.
(1) Authority of secretary to execute return. If any person fails
to make any return required by any internal revenue law or
regulation made thereunder at the time prescribed therefor, or
makes, willfully or otherwise, a false or fraudulent return, the
45
Secretary shall make such return from his own knowledge and
from such information as he can obtain through testimony or
otherwise.
(2) Status of returns. Any return so made and subscribed by
the Secretary shall be prima facie good and sufficient for all legal
purposes.
The Meaning of “Shall”
According to Webster’s Dictionary, “shall” means:
(a) to express futurity in the first person, and determina‐
tion, compulsion, obligation, or necessity in the second and
third persons
According to Black’s Law Dictionary, “shall” means:
As used in statutes, contracts or the like, this word is gen‐
erally imperative or mandatory… In common ordinary par‐
lance, and in its ordinary signification, the term “shall” is a
word of command, and one which has always or which must
be given a compulsory meaning; as denoting obligation. It has
a peremptory meaning, and it is generally imperative or man‐
datory. It has the invariable significance of excluding the idea
of discretion, and has the significance of operating to impose a
duty which may be enforced, particularly if public policy is in
favor of this meaning, or when addressed to public officials, or
where a public interest is involved, or where the public or per‐
sons have rights which ought to be exercised or enforced,
unless a contrary intent appears. …But it may be construed as
merely permissive or directory (as equivalent to “may,”) to
carry out the legislative intention and in cases where no right
or benefit to anyone depends on its being taken in the impera‐
tive sense, and where no public or private right is impaired by
its interpretation in the other sense… Also, as against the gov‐
ernment, it is to be construed as “may,” unless a contrary in‐
tent is manifest. (Black’s Law Dictionary, Revised 4th ed., pp
1541‐1542.)
46
Chapter 8: The Internal Revenue Code
The IRS relies on Section 6012 of the Internal Revenue Code as the
statute that allegedly requires the filing of tax returns. However, the IRS
Privacy Act Notice states it a little differently—the law requires you to
file a return for any tax you are liable for.
Since there is no statute that makes you liable, and since the IRS
Privacy Act Notice is supposed to tell you the requirements of the law,
then Section 6012 cannot apply until you are made liable.
Section 6012 and the Meaning of “Shall”
Let us assume, however, that Section 6012 of the Internal Revenue
Code does require individuals to file, even though they are not first
made liable. The problem with Section 6012 is that the word “shall” is
used in the statute. According to Black’s Law Dictionary (above), we
have seen that the word “shall” is mandatory except when a mandatory
interpretation would create a rights or constitutional violation. Since an
interpretation of “mandatory” in this case would require individuals to
waive the Fifth Amendment protection of their rights, Section 6012
would be unconstitutional if it really required individuals to waive such
protections. Therefore, the word “shall” in Section 6012 must be inter‐
preted to be permissive.
As you can see, Section 6012 has been deliberately left murky by
Congress so that Congress cannot be accused of requiring individuals to
waive the constitutional protections of their rights. Exacerbating the
problem is the courts’ consistent interpretation of Section 6012 as requir‐
ing the filing of returns. I know of several cases in which individuals
have raised issues related to this contradiction in 6012 but the courts de‐
liberately ignore the arguments and dismiss the cases without comment.
One criminal case went all the way to the Supreme Court and was
dismissed all the way up without comment. That case involved attorney
Richard Viti. The judges know they have to stay away from this issue be‐
cause if they meet it head on, they will definitely overturn the federal in‐
come tax. We cannot legally have a law that requires individuals to
give the government information that can be analyzed and used in
criminal cases for violation of the very law that requires the returns to
be filed.
Yes, something is rotten here, and I maintain that it is up to us—the
47
American people—to take out such garbage and be sure that it is prop‐
erly buried. The IRS is requiring individuals to waive their rights at the
same time that it emphatically states in all of its publications that we
have a “voluntary” tax system.
Section 6020(b) and the Meaning of “Shall”
Another interesting point is that Section 6020(b) also contains the
word “shall.” When the IRS files returns for individuals under 6020(b), it
never signs the return. However, if an individual submits an unsigned
return, the IRS will not code the computer to show that a return has been
filed.
In my Tenth Circuit case, the IRS had not posted my return as hav‐
ing been filed because I did not sign it. (Remember, I was fined $500 for
not signing it.) Since then, I have also been fined $6,000 for arguing that
since the IRS had not filed my return in its computer system, I should be
penalized for filing an unsigned return. The IRS consistently, however,
records the returns that it files in its computer system when it does so
under 6020(b), even though the IRS never signs the returns. I actually did
the same thing that the IRS consistently does when it files returns for in‐
dividuals under Section 6020(b) of the Internal Revenue Code, but I was
fined a total of $6,500.00!
48

Chapter 9: The IRS and Criminal
Prosecutions
T
he IRS has the power to proceed criminally whenever it wishes to,
against anyone. In its criminal cases, the IRS may use any infor‐
mation that has been given to it because individuals “voluntarily”
file tax returns. Section 7203 of the Internal Revenue Code is one of the
favorite sections of the IRS for proceeding criminally.
Section 7203 and Willful Failure to File
Section 7203 states that the IRS may prosecute people who “will‐
fully” do not file tax returns. Congress was very careful to make the as‐
pect of “willfulness” important for the crime because the tax system is so
complicated. Every year, the IRS indicts a few hundred individuals for
“willful” failure to file tax returns and some of these people end up in
federal penitentiaries. The IRS indicts individuals in order to keep the
rest of the population “voluntarily” filing their tax returns.
Filing “Exempt” on a W‐4 Form
About 20 years ago, when many people started to become aware of
the Internal Revenue scam, individuals began to file “exempt” on the W‐
4 form they gave their employer, and then did not file returns. Over the
last 20 years, the IRS has prosecuted hundreds of such individuals. In
these proceedings, the IRS has used tax returns that were previously
filed by the defendant to “prove” to the juries that the defendant knew
all along that he was required to file returns. Juries have bought that rou‐
tine and convicted many for not filing returns. The argument used by the
defendants—that they only filed returns previously because they were
unaware that they had been waiving their rights but now they wanted to
stop waiving them—was ridiculed by the prosecuting attorney.
The Problem of Filing a W‐4
I believe that the principal flaw in the legal position of such defen‐
dants is their use of the W‐4. The moment an individual files an exempt
49
W‐4 with his employer, he waives his Fifth Amendment protections. In
my view, it is inconsistent to file an Exempt W‐4 and then not file a tax
return.
Using Jealousy to Convict
During the last ten years, I have traveled the country to observe and
even participate in many criminal tax trials. I am convinced that the ju‐
ries have convicted many people for not filing tax returns because they
have been led to completely ignore the “willfulness” requirement of the
statute. Juries convict individuals because the jurors are made to feel
jealousy about a defendant who did not “pay his fair share,” while they
(the members of the jury) did. Prosecutors appeal to this emotion by
pointing out such “fair share” baloney with these very same words.
Selective Juries
An individual who is knowledgeable about the tax system and the
issues discussed in this book will not be taken in by such rhetoric. But
then, he will not be allowed to be on a jury if the prosecutor or the judge
become aware of his knowledge during jury selection. The IRS and the
Court make sure that the individuals on juries are uneducated as to tax
and legal issues.
The IRS and the Department of Justice also appear to prefer that ju‐
rors work as employees for someone else. Self‐employed people tend to
be a little more original and independent in their thoughts and actions. I
have often seen them eliminated when juries are selected. The govern‐
ment does not wish to take a chance with knowledgeable jurors who
identify with the defendant because the government might lose the case.
The John Cheek Case
In 1991, a fellow named John Cheek took the issue of proper and
adequate jury instructions relative to “willfulness” up to the Supreme
Court. The Supreme Court made it clear that the trial judge in Cheek’s
case had not done a proper job of instructing the members of the jury
relative to their consideration of the reasonableness of his defense. See
U.S. vs. Cheek, 489 U.S. 658 (1991).
The Cheek case is very important because, among other things, it
50
Chapter 9: The IRS and Criminal Prosecutions
stands for the proposition that individuals who rely on attorneys and
other professionals in making their decisions about this complex tax
system are entitled to inform the jury as to the extent of their reliance. It
also stands for the proposition that the jury must be instructed to view
the defendant’s actions subjectively, not objectively. In other words, the
juror has to put his own pre‐conceived notions aside of whether or not
the juror believes everyone must file, and instead get inside the defen‐
dant’s head and try to determine if he really believed, based on the de‐
fendant’s own research and the advice of the attorneys he consulted, that
he acted in good faith, and truly believed that his research in toto indi‐
cated that he was not required to file. When it can be shown that one’s
actions were based on a good faith reliance on professional advice, the
element of “a willful violation of the law,” essential for a conviction, is
conclusively eliminated.
It is apparent to me that the Cheek case destroyed the ability of the
IRS to prosecute individuals for “willful” failure to file who have fol‐
lowed the procedures outlined in this book.
Conclusion
In sum, if you stop waiving your rights on April 15 on reliance of
counsel, and if you are an employee and allow wage withholding (or
you are self‐employed and you submit quarterly payments against any
tax that the IRS might assess you under Section 6020(b) of the IRS Code),
you will virtually eliminate the ability of the IRS to victimize you for re‐
lying on, and refusing to waive, your constitutional protections.
In “Chapter 12: What Can You Do About the Problem?“ (beginning
on page 59), I will show you how easy it is to consult with attorneys and
get them to provide you their legal opinions that will support your deci‐
sion to stop filing.
51
Chapter 10: The IRS—A Modern
American Gestapo
M
ost Americans do not have any idea of the incredible power
that Congress has given to the IRS. When we are students in
school, we are taught the fundamental (and somewhat unique)
American legal maxim that even though the government may accuse
someone of wrongdoing, that person must be considered innocent unless
and until the government can prove them guilty. However, when it
comes to civil tax cases and the IRS, the burden of proof is placed on the
accused. That means that the IRS can say anything it wants to say about
how much money we owe and we have to prove that the IRS is wrong.
I know this first‐hand, because years ago after I criticized the IRS
publicly, the IRS assessed me a bogus deficiency of upwards of $100,000.
After years of litigation, when I finally signed a stipulation, the IRS owed
me $4,000.
As this book is written, there is a bill before Congress to shift the
burden of proof back to the IRS. If this bill passes, it will be a very impor‐
tant milestone in curtailing the power of the IRS Gestapo. It may not
pass, though. Ohio congressman Traficant has introduced it repeatedly
for the last ten years and it has gone nowhere. However, it presently has
the support of a majority of congressmen, so it appears close to being
passed.
Pre‐pay Your Liability
Since the IRS has been given incredible power to seize assets, it is
very important if you decide to take on the IRS that you have pre‐paid
any liability that it might reasonably allege. If you do that, you will be in
the driver’s seat.
(I will be repeating my main points including this point more than
once in this book. Although I may seem redundant at times, I think re‐
dundancy is necessary to be sure that everyone pays attention. If you al‐
ready think I am redundant, then you must be understanding what I
have been saying.) Sparring with the IRS when you are in a defensive
52
Chapter 10: The IRS—A Modern American Gestapo
position is exhausting; but sparring with the IRS when you are in the
driver’s seat can be enjoyable indeed.
Do Not Ignore Correspondence from the IRS
An important fact to remember if you get into an IRS confrontation
is that you should not ignore any correspondence from the IRS. Chal‐
lenge the IRS with every procedure available to you. In the interest of
your rights to due process, the IRS is required to follow specific proce‐
dures when it deals with you. If you force the IRS to “toe the line” and
go through each procedure, it will expend a lot of time and energy, but
you will have lots of fun, and you will be the one to come out on top.
Search Warrants Are Still Required
Many people heard recently about the new policy for “life‐style au‐
dits” by the IRS, which were reported to allow the IRS to come into your
home in an effort to verify your declared income against your lifestyle.
Before the idea of such invasive audits was scrapped, I talked with peo‐
ple who were outright angry that a government agency would be al‐
lowed to do that. Actually, there is nothing to worry about. Although
many Americans do not know it, the IRS must and always has had to
have a search warrant if it wants to enter your house, just like any other
law enforcement agency. Just say “No!” If Americans just say “No” to
the IRS, the IRS Gestapo will be forced to go back to its offices, prepare
affidavits to support a request for a warrant, and then go to a judge and
submit its request for consideration by the judge. If the IRS is forced to
go to court to get search warrants each time it wants to do a full‐blown
“life‐style audit,” there will be very few entries indeed.
Attendance at Audits Are Not Required
Also, there is no law that requires you to attend any audit. If you do
not attend an audit, the IRS has two choices: it may send you a sum‐
mons, which you have every right to contest in federal court, or it may
invent a bogus assessment which you may choose to contest in either the
tax court or in federal court. You are only at the mercy of the IRS if you
do not know anything about your rights and the IRS procedures. With
knowledge you have power.
53
Chapter 11: The Summons Power of
the IRS
T
he IRS has the power to issue an administrative summons. That
means that the IRS may send you a summons if it wishes to talk
with you (for an audit, for example), and the IRS can require you
to show up. If you do not show up and comply with the summons by ei‐
ther answering the questions or by properly asserting the Fifth Amend‐
ment in answer to the questions, the IRS can go to Federal Court and get
a judge to order you to comply.
Only if you do not comply at that point can you be charged with a
crime, and that would probably be contempt of court. Up to this point,
you have not violated any law. However, if you are ultimately held in
contempt of court, such a charge is based on a violation of law and the
judge could put you in jail or fine you, or both.
The fact that the IRS has to issue a summons and get enforcement of
the summons in District Court just to require an individual to show up
clearly shows that the IRS cannot require you to give the same informa‐
tion on a tax return without a summons enforcement hearing.
Do Not Admit to Having Books and Records
Actually, if you do show up and you choose to take the Fifth
Amendment in response to specific questions of the IRS, you will prevail
provided that you do not admit that you even have books and records. Contrary
to popular belief, the IRS cannot make you answer its questions! See U.S.
vs. Sharp, 920 F.2d 1167 (4th Cir. 1990), and U.S. vs. Argomaniz, 925 F.2d
1349 (11th Cir. 1991). These are two federal appeals court rulings that
deal with the issue of using the Fifth Amendment in IRS summons cases.
If you handle your summons correctly, the IRS will not be able to
enforce it and get information from you. However, if you handle the
summons incorrectly, you could end up in jail for either civil or criminal
contempt or both. Obviously, it is extremely important that you know
exactly what you are doing when you respond to a summons.
54
Chapter 11: The Summons Power of the IRS
Never Ignore a Summons
Do not ever ignore a summons. If you do, the IRS will immediately
move for enforcement because it thinks that you are afraid to respond,
probably because you do not understand your position and probably do
not know your rights. Ninety‐nine times out of a hundred, the IRS is
probably correct. It has certainly been my experience that people who
ignore a first party summons from the IRS do not know what they are
doing.
On the other hand, I remember individuals who are those one in
one hundred. I remember one man recently who, like a few people be‐
fore him, made the IRS agent wish he had not initiated efforts to make an
assessment of liability in the first place. When the IRS discovered that
this individual had failed to file a return, the IRS issued a summons re‐
quiring him to appear for questioning. The individual appeared but
stood on the Fifth.
The IRS went to court and obtained a court order, ordering the in‐
dividual to respond to its questions. Again, he took the Fifth. The IRS
tried to have him cited for contempt, but the judge held that the individ‐
ual had responded satisfactorily and completely by invoking the Fifth in
response to each individual question. The individual and the judge were
both aware that any information the individual provided could become a
link in the chain of evidence that could be used for prosecution of a
criminal violation of the tax law. (See Sharp, supra.) The individual stuck
to his position, and the court ruled that he had fully complied with the
summons and the court order enforcing it, and did not hold him in con‐
tempt even though the IRS agent obtained no information!
Now, think about this: if the courts will not require individuals to
answer questions by the IRS in response to a summons (and, in fact, rule
that the individual may properly take the Fifth to each question asked),
how can the government require individuals to answer the same ques‐
tions on 1040 returns? It really cannot.
Some might argue that answering questions on a 1040 return form
may not qualify as warranting the protections of the Fifth Amendment,
especially if no criminal accusation or proceeding has been initiated.
However, in Argomaniz, supra, the 11th Circuit Appeals Court judges
55
ruled that a taxpayer could take the Fifth Amendment in a civil matter as
well as a criminal matter. The court stated: “There can exist a legitimate
fear of criminal prosecution while an IRS investigation remains in the
civil stage, before formal transfer to the criminal division.” Of course,
this is true any time because the IRS can gather all the information it
wishes to gather civilly and then switch the audit to criminal at any point
in time.
The IRS is sneakily requiring individuals to “volunteer” information
that can be used in any criminal case at any time. Do I say “sneakily” be‐
cause the IRS does not inform us of such intentions? No, I say “sneakily”
because the IRS only makes a quick statement to that effect in the Privacy
Act Notice section of the 1040 Instruction Manual—and nobody takes the
time to read that anyway.
I would not accuse the IRS of sneakiness if it put a big, bold WARN‐
ING! above that statement. If the IRS did so, I would blame individuals
for being stupid to ignore it! But the IRS does not emphasize that it may
use the information to criminally prosecute at a later date. The IRS just
benignly states that it “may give the information to other agencies (in‐
cluding) the Department of Justice.” How many of you have ever read
that sentence and if you have, have you pondered its significance? Do
you know that the Department of Justice only has one mission, and that
is to investigate and prosecute crime? The only thing that the Depart‐
ment of Justice will do with your information will be to use it against
you, to convict you of a crime so you may be fined and/or sent to jail.
The IRS does not point this out anywhere in its Notice, does it? Is the IRS
“sneaky,” or what?
The IRS may also issue a summons to third party record keepers,
such as banks. That means that any information you give to a bank you
are making available to the IRS. The IRS may obtain anyone’s bank re‐
cords (there is nothing private or secret about your checking or savings
accounts—the government has complete access to all the details anytime
it wants it, thanks to a law passed by Congress in 1970 and sneakily mis‐
labeled, “The Bank Secrecy Act”). Although the law permits you to file a
motion to quash such a third party summons in a federal district court, it
is virtually impossible to beat the IRS on this issue. When you entrust
banks and other third parties with your records, once again you are vol‐
56
Chapter 11: The Summons Power of the IRS
untarily giving up a constitutionally protected right—your right to pri‐

vacy.
If you receive a summons for your own personal records, you have
a right to assert the Fifth Amendment as long as you do not admit the ex‐
istence of books or records. If you admit the existence of books and re‐
cords, you automatically waive the Fifth Amendment protections of
your rights because the Supreme Court has said that the Fifth Amend‐
ment applies to testimony and not to books and records. See United
States vs. Doe, 465 U.S. 605 (1985).
Of course, if you see things like Judge Nottingham did in my case,
you could say that even if someone answered all of the questions asked,
they have still taken a blanket Fifth Amendment position(!); but of
course you and I both know that any other judge would rule that you
had waived all Fifth Amendment protections by providing all the an‐
swers.
If you use banks and other similar third‐party entities for holding
your money, the laws allow the IRS to get all the information that you
have entrusted to those entities. Remember that the Fifth Amendment is
still incredibly powerful in an IRS summons enforcement. When it is
used properly, the IRS is helpless before the law. This is very important
to keep in mind.
Several years ago a friend of mine was jailed for contempt by a fed‐
eral district court judge because he had been summonsed by the IRS and
had refused to show up. He again refused even after the IRS went to the
judge and obtained a summons enforcement order. On the order of the
judge, a United States Marshal then arrested him and brought him to
court. He told the federal judge that he did not believe that the court had
any jurisdiction over him. As if to show him otherwise, the judge
promptly found him in contempt of his lawful order and jailed him.
Later on, after a little jail time, he wised up. After talking with a
counselor, he went in and apologized to the judge and took the stand as
the court had originally ordered. He then answered every one of the gov‐
ernment’s questions by asserting the Fifth Amendment. The judge al‐
lowed him to stand on the Fifth Amendment on all but a couple of very
non‐threatening questions (i.e., “What is your name?”; “Where do you
live?”, etc.). The IRS agents and the Department of Justice attorneys were
57
completely beside themselves because they still could not get the an‐
swers they were seeking!
The power of the Fifth Amendment when used properly is astound‐
ing, and when enough Americans wake up and quit waiving their Fifth
Amendment protections on April 15, the power of the Fifth Amendment
will force Congress to change our un‐American federal tax system.
58

Chapter 12: What Can You Do About
the Problem?
I
f you have studiously read through the previous chapters in this
book (and they certainly require only a modicum of concentration),
you have come to the following conclusions:
1. Individuals who file tax returns voluntarily waive the Fifth
Amendment protections of their inherent rights.
2. The government cannot require individuals to waive any consti‐
tutional protections of their rights.
3. Therefore, the government cannot lawfully (i.e., constitutionally)
require individuals to file tax returns.
However, you might also have come to the conclusion that the gov‐
ernment and the courts are not ready to admit this problem to the gen‐
eral public because if the general public knew that filing tax returns was
truly voluntary, the tax system would fall apart. The present federal in‐
come tax system depends completely on voluntary self‐assessment.
Becoming Judgment Proof
From a practical standpoint, if you wish to get involved in standing
up for your rights, and if you wish to quit voluntarily waiving your Fifth
Amendment protections each April 15, you have certain actions that you
can take which will not subject you to a defensive posture. For example,
if you are not judgment proof, you must either allow wage withholding
or, if you are self‐employed, you must submit quarterly payments to‐
ward any tax that you figure you might owe if you were to choose to file
a tax return at year end and voluntarily waive your rights.
You are not judgment proof if you own a car or a house or other “at‐
tractive nuisances” that tend to entice IRS collection agents, or if you de‐
pend on wages, or if you represent yourself as an independent contractor
but you are paid by only one or a few clients. Nor are you judgment
proof if you have any monetary assets such as a checking or savings ac‐
59
count in a bank, or an investment account with a stock broker.
If the IRS insists that you owe something, it may proceed civilly
against you in these areas, and take such assets. Therefore, if you are not
judgment proof, but you choose to cease waiving your rights and cease
filing returns, you must be sure that the IRS has been paid any money
that it thinks you owe up front. Then, when the end of the year rolls
around and you decide to file a Claim for Refund instead of a 1040 re‐
turn, you can go on the offensive to effect your Claim, rather than be
forced to go on the defensive like you surely would have to if the IRS
were to decide to take your assets, or to charge you criminally.
Also, if you wish to quit waiving your rights voluntarily, you must
consult with a few tax professionals and get opinion letters from them.
You must be careful to have professional support in advance, advice that
you can rely on for deciding to stop voluntarily waiving your rights. To
work for reform in the laws, and force change from a powerful position,
make sure that you can show that your actions are based on legal advice,
otherwise you wind up becoming more grist for the IRS enforcement
mill.
Consulting with Tax Attorneys
Assuming you are like most Americans (that is, assuming you are
not judgment‐proof because you have assets and work for a regular pay‐
check), you can still assert your rights once you have consulted with and
obtained advice from tax professionals. Meet with a few attorneys who
bill themselves as tax experts and ask them to explain to you how you
may file a return without waiving the constitutional protections of your
rights. Show them the Fifth Amendment and the IRS’ Privacy Act No‐
tice. Also, do not forget to take along copies of the Sharp and Argomaniz
cases in the event a sharper‐than‐average attorney insists that the lan‐
guage of the Fifth Amendment means that it does not apply unless you
are already under criminal investigation or prosecution. Copies of these
cases are on the CD‐ROM included with this book.
At the conclusion of your individual meetings with each tax attor‐
ney, after they have admitted to you that they cannot advise you of any
way you can file a return without waiving the Fifth Amendment protec‐
tions of your rights, ask them to put their opinion in writing, on their let‐
60
Chapter 12: What Can You Do About the Problem?
terhead. (This opinion letter will undoubtedly cost you some money.)
Now, you are ready for the next step, and you have several strong op‐
tions.
If You Are An Employee
If you are an employee, the best action to take in order to stand up
for your rights is to instruct your employer to continue to withhold so
that at the end of the year, were you to calculate a tax owed on a 1040 as
you used to do, it would come out that you would not owe any more
than what was withheld throughout the year. An even more solid posi‐
tion is to submit a W‐4 early in the year that results in your employer
withholding a little more by year end than would be required, so that the
IRS owes you at year end.
The “No Waiver of Rights” Letter
Then, at year end, instead of filing a return, send a letter in to the
IRS explaining that you have become aware that filing a return requires
you to waive your rights, which you no longer wish to do. Explain fur‐
ther that you have consulted with several professionals and none have
been able to tell you how you can file a 1040 return without waiving
your rights. Be sure to enclose photocopies of their written opinions.
Ask the IRS for an extension of time to file, until it can come up with
a way for you to file without waiving your rights. (Incidentally, at this
time, if you feel that your withholding has not quite been enough to
cover what you have calculated would be owed if you were to file a re‐
turn, include a payment for the difference. You want to eliminate any ex‐
cuse that the IRS might use to seize any of your assets.)
Point out also that you have become aware that unless and until a
return is filed making you liable for a tax, you understand that the
money that has been withheld and sent in on your behalf just sits in a
“pending” file somewhere and cannot be used by anyone. (Your return
is your self‐assessed tax bill. If you do not prepare it and bill yourself,
you cannot owe any tax.)
State that you wish your letter to also serve as an informal Claim for
Refund. Now, pursuant to IRS Code Section 6532(a)(1), unless the agency
can inform you of a way you may file a return within the next six months
61
(without waiving your rights, of course), you are entitled to sue the IRS
to enforce your Claim:
§6532. Periods of limitation on suits. (a) Suits by taxpayers for
refund. (1) General rule. No suit or proceeding under section
7422(a) for the recovery of any internal revenue tax, penalty, or
other sum, shall be begun before the expiration of 6 months
from the date of filing the claim required under such section
unless the Secretary renders a decision thereon within that
time, nor after the expiration of 2 years from the date of mail‐
ing by certified mail or registered mail by the Secretary to the
taxpayer of a notice of the disallowance of the part of the claim
to which the suit or proceeding relates.
When you sue, you are in the driver’s seat and the IRS will be on the
defensive. To a jury, the IRS will have to try to explain why it has not
been able to respond to your concerns for your rights, and the Achilles
heel of the hated income tax system will become apparent to twelve
more over‐taxed Americans. Are we having fun yet?
This should be a thoroughly enlightening experience for both you
and the jurors, and an embarrassing experience for the IRS. Perhaps the
IRS will scurry around prior to trial and file a return for you under its
Section 6020(b) procedure, and then argue that your withheld moneys
have been applied to that return. The IRS could file a return for you be‐
cause the procedures allow for it, but the IRS does not have the man‐
power to do it for thousands of folks who will read this publication and
then take the IRS to court. Probably the worst thing that could happen
to you would be that you would become totally tongue‐tied and com‐
pletely fumble your argument and the jury simply would not under‐
stand the issues and would not award you your claimed refund. But
how many cases like this filed in the courts do you think it will take to
thoroughly consume the agency and force the agency itself to go to Con‐
gress and ask them to either correct the tax laws or amend the constitu‐
tion? Which do you think they will do?
If You Are Self‐Employed
An individual who is not an employee but is self‐employed could
62
follow essentially the procedure outlined above, except that the “with‐
holding” would be his responsibility. He should be sure that he posts a
bond against any assessment the IRS might make (in other words, he
should send in his estimated tax amounts quarterly as he has in the past).
Then he can follow the same procedure as the employee:
¾ File a combined extension of time and informal Claim for Re‐
fund letter.
¾ Follow up with a lawsuit to enforce his Claim.
Remember, anyone who decides to quit filing tax returns must only
do so on the advice of attorneys and other professionals. Especially if he
is not completely judgment proof, he must be sure that any tax the IRS
might assess under Section 6020(b) is pre‐paid. By pre‐paying the tax,
you will be filing a Claim for Refund letter and you will put the IRS on
the defensive. If you have not pre‐paid your taxes, you will be on the de‐
fensive.
Each year, an individual could send photocopies of his opinion let‐
ters along with his own letter to the IRS requesting an extension of time
and also making an informal Claim for Refund, instead of waiving his
rights and submitting a tax return. After going through the first lawsuit
or two to pursue his Claims, I would wager that he would even find that
it was an easier thing to do than what he had done in the past—that is,
try to get all of his receipts sorted out, understand the latest changes in
the tax laws, figure out what amount goes on what line and where he fits
in the tax tables, ad nauseam. I am certain that he will find it to be a lot
more satisfying and a lot more fun!
Our governmental system was for years the envy of the rest of the
world, but it currently suffers from many severe problems and it is now
so huge and sluggish that making changes is quite difficult. However, if
just a few thousand responsible Americans became aware of and chal‐
lenged the severe constitutional problem with the income tax, I believe
that the system could be changed in just a couple of years.
Remember that when you file a tax return, you vote in favor of the
income tax, and you also vote in favor of the abuse by the IRS of your
rights and your Fifth Amendment protections. If the government can re‐
63
quire you to give information that it can decide at any time to use against
you in a criminal tax case (or in any kind of criminal case), then the Fifth
Amendment has become worse than void, it has been made into a joke.
As long as the American public remains unaware of the situation,
this horrible abuse will continue. If you are reading this book, however,
you have become aware. I hope that you feel confident enough with
what you have learned to seriously consider joining those who have de‐
cided to quit voting (i.e., filing a return) every year in favor of a system
that continues to ignore, and even trample on, our rights.
The “Substitute Jurat” Approach
You say you do not quite feel that confident yet? Well, that is either
my fault or perhaps I have not given enough credit to the IRS’ propa‐
ganda and fear‐instilling program. Or perhaps you have been filing 1040
forms so long that you just cannot quite yet bring yourself to quit cold
turkey this year.
As a suggestion for you to ease into the ranks of us erstwhile re‐
formers, let me suggest a slightly different twist that may feel more com‐
fortable. I call it the “substitute jurat” approach. Next year, go to your
CPA and have your return prepared, as usual. In preparation, take the
time this year to adjust your W‐4 so that a little more than normal is
withheld. In short, make sure the IRS will owe you a little money. When
your CPA presents your return to you for filing, go ahead and file it, but
file it without signing it. Instead, attach a statement that states something
like this:
“I cannot sign this return under the penalty of perjury as
the attestation requires because I do not understand the docu‐
ment or its contents. Obviously, if I did understand the return
and the tax laws governing its preparation, I would have pre‐
pared it myself. I am, however, certifying under the penalty of
perjury that I told the truth about my income to the CPA who
has prepared the return, and who has signed as its preparer.”
Now the IRS will react by either issuing a $500 fine or declining to
send you your refund; in either case, you have still set up your own op‐
64
portunity to challenge the Federal Income Tax in court at its very roots.
Here again, you are postured to file and follow through on a Claim for
Refund.
The “Claim for Refund” Letter
Let us return to the idea of not filing, but instead sending the IRS a
“Claim for Refund” letter. Since the IRS knows it cannot require indi‐
viduals to waive their rights, it is not going to accept or decline your re‐
quest for an extension of time. It will most likely ignore the request and
will proceed under Section 6020(b).
In order to proceed, the IRS will have to follow very expensive and
time‐consuming procedures. There is no possible way that the IRS could
deal in this way with even half a million people a year out of the 100 mil‐
lion who file. I am confident that less than half a million people a year
using this approach could completely reform the existing tax system
within two years. The existing system will not work unless people vol‐
untarily waive their rights on April 15. Similarly, if the IRS does not send
the refund to the individual who has filed but who has signed his own
jurat instead of the IRS’s jurat, the IRS will still have to defend itself
against a Claim for Refund lawsuit in federal court.
Additional Problems for the Judge
The jurat‐related lawsuit could pose an additional problem for the
judge. He may decide that it is an issue of law that he should rule on,
rather than a jury. Then he will have to rule that either the individual
must commit perjury and sign a document that he has already sworn
under the penalty of perjury he does not understand, or he will have to
rule that the customized jurat is acceptable for purposes of a refund suit.
Either way the judge rules, he creates a problem for the IRS. If and when
just one judge rules that the customized jurat is acceptable, his ruling
will be published far and wide so that it will become common knowl‐
edge that individuals are not required to file signed returns. The IRS’
prosecutorial teeth will be pulled. Millions will then quit voluntarily
waiving their Fifth Amendment protected rights.
65
The Wrong Way to Challenge the IRS
In the past, many individuals have chosen to challenge the invalid
assumptions of our tax system by not giving the government money and
not filing. Most of these individuals were not judgment proof. Years
later, when the IRS finally made an assessment, the individuals were as‐
sessed thousands in late charges and interest in addition to the taxes for
those years, and the IRS seized their assets. In addition, many of these
individuals went to jail for their efforts.
Wrong Motives
Unfortunately, other than make some of the rest of us wake up and
start thinking about the issues ourselves, their great sacrifices accom‐
plished little. It was apparent, too, that some were doing what they were
doing for the wrong purpose, that is, saving money on taxes. They were
not doing it to protect their rights. In fact, many were not even very well
educated about their rights.
Wrong Tactics
They certainly did not prepare for their situation in advance. They
did not establish a strong and defendable good faith foundation for their
actions. It is my opinion that if the techniques outlined in this book
would have been used by these early activists, the system would have
been changed by now. Rather than successfully prosecuting for non‐
filing and non‐paying, the IRS would have found it impossible to enforce
a tax system against millions of people who were simply insisting on the
constitutional protections of their rights and choosing not to voluntarily
waive such protections.
66

Chapter 13: What Will Uncle Sam Do?
E
ach year, as individuals quit voting (filing) in favor of the income
tax on April 15, the IRS will have to begin assessing each individ‐
ual separately. Even if individuals did not file Claims for Refund
that the IRS would eventually have to defend in court, the agency would
still face the burden of having to issue a Statutory Notice of Deficiency to
each individual who has not voluntarily self‐assessed. Going through
this process for a few hundred thousand individuals would require more
of the IRS than it could handle.
Each person who receives a Statutory Notice has 90 days from its
date of issuance to file a Tax Court petition. If it availed itself of this op‐
portunity, the IRS would have to schedule Tax Court for these hundreds
of thousands of challengers. Even if those individuals who have allowed
withholding or posted bond against the government’s 6020(b) assess‐
ment simply elect to agree to the assessed amount and not pursue a
Claim for Refund action, the IRS will have to do an incredible amount of
work on each individual case.
There is no doubt that the IRS would become overburdened imme‐
diately with the amount of administrative paperwork, and Congress
would be forced to give us a more fair and equitable tax system that does
not blatantly ignore our constitutional protections. People can force the
IRS to tell the truth and to quit requiring all of us to voluntarily waive
the Fifth Amendment protections of our rights. Handled properly, the
IRS is a paper tiger, but it could quickly become a paper victim. So you
feel like slaying a tiger today?
And be sure to read U.S. v. Argomaniz on page 127, U.S. v. Sharp on
page 141, and U.S. v. Robbins, on page 149. You might find some ammu‐
nition for your tiger hunt.
67
Chapter 14: Empowerment
M
any individuals who have read this far in this book will be
completely amazed at my position. They had no idea that
there is no statute that requires the payment of income tax on
an individual basis (in other words, that there is no statute that makes
one liable for the income tax). Furthermore, the idea that the IRS can re‐
quire individuals to give information that the government may immedi‐
ately use in any criminal or tax case it wishes, will probably amaze and
anger many people that were not upset with the tax system before.
You Are Not Too Small
I imagine that although many will become aware from reading this
book, a large number will probably feel that they are too small to take on
city hall. I run into that reaction often on the lecture circuit. Actually, the
truth is quite different. I too felt overwhelmed by “city hall” back in
1978, but I started reading and studying and finally taking action. My
experiences taught me that I could take the government on, all by my‐
self, and win.
I am proud of my six published wins on my case related to the audit
of my 1979 tax return. Of course, I am proudest of the ruling I received
from the Tenth Circuit Court of Appeals—that tax returns are not com‐
pelled or required. I have never had any formal legal training. If I can do
it, everyone can do it. It is not necessary for you to reinvent any wheels.
You can benefit from my experiences and those of others who have
gone before both of us. I will be pleased to hold your hand and walk you
through the process. Since I am not an attorney, nothing in this book can
or should be construed as legal advice, but I can certainly share my ex‐
periences.
Give This Book to Your Attorney
Speaking of attorneys, I would like to suggest that you give this
book to your attorney to read. Let me know of his or her opinion by
sending an email to me. My email address for correspondence about the
subject matter of this book is [email protected]. Ask your attorney
68
Chapter 14: Empowerment
to put in writing the conclusion he or she is bound to come to: that is to
say, your attorney will not be able to figure out a way for you to file
without waiving your rights and the constitutional protection of those
rights.
Ask your tax attorney to apply for my $100,000 reward. If you de‐
cide to quit voting in favor of the Federal Income Tax on April 15, there
is a lot you can do, but you must do it. I have walked this road many
times with others, but I will be only too happy to walk it again with you
and keep you from taking any wrong turns. I know you will feel great
taking the journey, and feeling that you have personally been a major
catalyst for positive change in America.
69
Conclusions
I
f you have read this book carefully, you know the following
concepts:
1. The Fifth Amendment to the Bill of Rights says individuals are
not required or compelled to give the government information that may
be used against them in criminal cases. Note that the Fifth Amendment
does not apply to corporations.
2. The IRS continually uses the word “voluntary” in relation to the
filing of income tax returns. The IRS knows that the Fifth Amendment
prohibits the government from requiring individuals to waive their
rights.
3. Individuals who voluntarily file tax returns freely give the IRS in‐
formation that may be used in a criminal case if the IRS decides at any
point in time to turn a civil investigation into a criminal case.
4. The IRS has a “Miranda” type of warning in its Privacy Act No‐
tice. The purpose of the warning is to warn individuals who file returns
that the information may be used against them in a criminal case.
5. Individuals who become aware that they are voluntarily waiving
their Fifth Amendment protected rights when they file tax returns and
who wish to quit waiving those rights, should seek professional counsel,
and then ask the IRS for an extension of time to file their return until the
IRS can inform them how to file the return without waiving their rights.
Opinion letters from professionals should be sent in to the IRS with the
request for an extension of time to file.
6. The IRS cannot require any individuals to come to an audit with‐
out issuing a summons. However, once a summons is issued, a knowl‐
edgeable individual can appear and assert the Fifth Amendment to spe‐
cific questions. The IRS cannot enforce a summons in the face of specific
Fifth Amendment responses.
7. There is no statute that makes anyone liable to pay the federal in‐
70
Conclusions
come tax. Individuals become liable to pay the tax by filing tax returns
and self‐assessing themselves voluntarily. Alternatively, the IRS may
make an assessment under 26 USC 6020(b). However, in order to assess,
the IRS must follow certain procedures.
8. Knowledge is power. On the other hand, ignorance breeds fear.
The IRS is able to get away with its terrible abuse because lack of knowl‐
edge about their own rights leaves individuals afraid.
9. If you think that you can prove that I am incorrect, you may wish
to apply for my reward. In order to win the $100,000 reward you must
show me: (1) What statute in the Internal Revenue Code makes me liable
to pay an income tax, and you must also show me (2) How I can file a tax
return without waiving my Fifth Amendment protected rights. I wel‐
come your challenges.
71
Frequently Asked Questions
I have read your book and you have convinced me that you are right,
but I am still a little afraid to take what seems like a major step. Do
you have any further suggestions that I might consider in order to
help?
Yes, there is a lot that you can do to help! Here are some sugges‐
tions:
¾ First of all, you can pass out copies of this book to your friends.
¾ You can schedule a speaking engagement for me with a local
group in your town.
¾ You can put copies of my $100,000 Challenge advertisement in
your local newspaper.
¾ You can advertise in your local newspaper that the Tenth Circuit
Court of Appeals has taken the position in Conklin vs. U.S. that
tax returns are not compelled or required.
State in your ad how a reader may contact the court for a copy of its
unpublished decision—think of the effect on the judges here in the Tenth
Circuit as they receive such requests and realize that thousands are
aware of their decisions.
If enough people become convinced that you are right and take ac‐
tions, what will our government do for money?
I am not advocating that people should not pay their taxes. I am
taking the position that people should know that filing returns for indi‐
viduals is voluntary and that people waive a very important constitu‐
tionally‐protected right when they file a return voluntarily. If the IRS
wishes to count the money in its accounts as a collected tax, then it must
assess each individual under Section 6020(b) who does not voluntarily
file a return.
When a few hundred thousand of us take such positions each year,
the load of the IRS will become so severe that Congress will either have
72
to give us a new tax system or correct the constitutional conflicts in this
system. Right now, our income tax system only functions because each
year a hundred million individuals voluntarily waive their rights and
give an abusive agency unnecessary and unprecedented power over
them.
Even if I were advocating that we not send the IRS any money (and
I am not advocating that), the government would get along without it
because it already prints what it needs anyway. It is because the Treas‐
ury Department just print what it needs that we have such huge deficits
each year—how do you think the many government programs are paid
for, if there is a deficit between the program cost and the taxes collected?
The deficit is filled by printing presses that churn out the difference in
billions of dollars of paper currency.
If the IRS cannot require individuals to answer specific personal fi‐
nancial questions when the Fifth Amendment is specifically asserted
in response to a summons, then how can the IRS require individuals to
answer the same questions on a 1040 Form each April 15th?
I think you understand the thesis of this book quite well. The an‐
swer of course, is that the IRS cannot require that any individual give in‐
formation on a 1040 return.
What will happen if I file a 1040 return and I take the 5th Amendment
on the return on specific questions?
You have asked a very good question because it would seem that
filing a return with specific Fifth Amendment objections would be a
good way to deal with the problem. However, if you object on the tax re‐
turn, the IRS will issue a $500.00 penalty for filing a frivolous return, and
as you can see from my case, the courts will come up with some sort of
ridiculous argument to protect the income tax system. There is a judicial
conspiracy to protect the income tax and keep the truth from the Ameri‐
can public. The Alice in Wonderland logic and Orwellian doublespeak is
rampant and knows no bounds. That is why I suggest instead that you
mail an informal request for an extension of time to file the return once
the IRS can show you how to file it without waiving the Fifth Amend‐
ment protections of your rights. Since you have not proffered a return
73
with your mailing, the IRS cannot fine you for filing a frivolous return.
How does the IRS get so many people to file returns voluntarily each
year?
Congress and the IRS have conspired together to keep the people in
fear. They have done so with criminal sanctions and prosecutions, inex‐
cusable in my opinion in a country like America that so strongly touts
freedom. Unbelievably, America is one of the very few countries in the
world which has criminal tax implications in its laws! The IRS throws a
few people in jail each year for “willfully” not filing returns to intimidate
the rest of us and keep us volunteering. Also, have you ever wondered
why it is that when you adjust your W‐4 to the correct number of allow‐
ances, you always get a refund? The withholding tables are specifically
designed so that the IRS owes you money at the end of the year. The IRS
is playing with our minds again; it is another psychological ploy to en‐
courage people to file returns—the benevolent IRS will send them a re‐
fund! I will bet that if the tables were designed so that everyone owed
the IRS a few dollars each year, the IRS would lose control immediately.
But as it is, many, many people voluntarily file returns to get a refund at
the end of the year. They count on it and regard it as akin to a windfall—
some have apparently lost track of the fact that it is their earned money
in the first place! However, if your rights are important to you, then you
need to consider doing something to change this absurd situation.
I understand your criticism of the current system and I am astounded.
What would you envision as a decent system in a perfect world?
I do not have a perfect answer to that question. If I did, I would
know more than any of our politicians or economists. I do know how‐
ever, that we must have a government and a court system that is honest
with the people. We cannot have a Fifth Amendment that gives the peo‐
ple a right not to give the government information that can be used in
criminal tax cases and then turn around and prosecute individuals
criminally for not volunteering the information. We cannot have an
agency that collects information in civil proceedings and then turns the
case to one of criminal prosecution once the information has been col‐
74
lected. We cannot have a system that survives only because it is feared;
and we cannot have a system in which the IRS can take any property it
wants without a court order.
For a start, if we are to have a fair system, we must do the follow‐
ing:
1. Shift the burden of proof to the IRS.
2. Allow jury trials on all tax cases without prepayment.
3. Repeal all criminal tax laws.
4. Prevent the use of any information on tax returns in any criminal
case.
5. Require the IRS to obtain a court order before it can seize any
property.
6. Make it illegal for the IRS to audit or harass individuals who ex‐
ercise their First Amendment protected rights and criticize the system.
How can a person who owns a car, has a job and uses banks, etc. quit
waiving his Fifth Amendment protections on April 15th, and still hold
on to his assets?
Good, you are now thinking on the right track. If you are sure that
the IRS has the money up front for any tax it might eventually assess un‐
der Section 6020(b) of the Internal Revenue Code, and if you assert all
your rights as the IRS attempts to assess, you will not lose any assets. As
a matter of fact, you should have a lot of fun. The IRS will probably
spend more money following the assessment procedures under 6020(b)
than you will pay in taxes. As you can see, we only have the tax system
that we have now because the American people continue to tolerate the
abuse of their rights.
I am completely judgment proof. I do not own a house and I work for
cash jobs. I do not even have a bank account. I have not filed returns or
paid any income taxes for over ten years. What can the IRS do to me?
Actually, the IRS might have a lot of trouble with you. The IRS may
75
proceed criminally, but that is unlikely unless you make quite a bit of
money or you are very vocal. If the IRS ever discovers you, the IRS is
likely to issue a Statutory Notice of Deficiency and proceed with an as‐
sessment. However, if you do not have any visible assets the IRS can
seize, it will be forced to issue a First Party Summons to you.
If you know how to respond to the summons properly, the chances
are the IRS will just leave you alone and go after easier fish. I think that
right now there are literally tens of thousands of people in the country
who are following your approach. The IRS Commissioner has admitted
in public that over ten million returns are not filed each year! From this
point forward, I would be sure to rely on the advice of professionals for
any decisions you make regarding the federal income tax.
While I admire your temerity, I am not advocating that people take
a position as hard‐core as yours. However, I know that there are all types
of people in this country and I know that many people hate the income
tax system so much that they simply neither file nor pay income taxes.
Obviously, if enough people were to start doing what you are doing,
Congress would definitely have to come up with a better system.
Do I have to be a knowledgeable legal expert or have a lot of money to
hire lawyers if I decide to quit voluntarily waiving my Fifth Amend‐
ment protections on April 15th. Is that really necessary?
Actually, if you prepare yourself in advance by making sure there is
withholding or a bond posted against a 6020(b) assessment, and if you
have opinion letters from various professionals, you will be in a great
position to have fun and learn a lot.
I would like to write my congressman about this problem. What
should I say?
Write your congressperson and ask the following three questions:
1. Do I waive my Fifth Amendment protected rights when I file a
1040 tax return?
2. If I do waive my Fifth Amendment protected rights when I file a
1040 tax return, what statute requires me to so waive them?
3. If I do not waive my Fifth Amendment protected rights when I
76
file a 1040 Return, then why does the IRS have a Miranda‐type of warn‐
ing in the Privacy Act Notice of the 1040 Instruction Book, stating that
the IRS may give any information on my return to the Department of
Justice, obviously for use in criminal cases?
Let me know what your congressman has to say about this issue. In
the past, congressmen have either neglected to answer the letters or they
have ignored the questions and sent back generic answers that are not
responsive to the question. They must be aware there is a problem.
Several congressmen and several presidential candidates are talking
strongly about replacing the income tax with a flat tax. Won’t that get
rid of the Fifth Amendment conflict that the present tax system has
with the Constitution?
Not at all. The flat tax would still require filing a return. It is said
that it will be a shorter return, with no deductions allowed, but it still re‐
quires a return. Not only that, but Congressman Armey, who has pro‐
posed the flat tax, is proposing that his flat tax require the short return to
be filed every month, with a 13th return, a summary return, due at the
end of the year also! The IRS would not go away; it would still be needed
to audit the returns. In fact, since there will be 13 times as many returns,
the IRS will probably have to hire more IRS employees to “help” (i.e.,
harass) us. Now, the present system gives the IRS one return to find er‐
rors on and to take us to task for, civilly and criminally; can you see that
our exposure to such prosecutions and persecutions will increase with 12
more returns, even though it has been promised that the returns will be
simpler?!
On the other hand, a national sales tax, as proposed by Congress‐
man Archer, would get the IRS out of our lives altogether. With a na‐
tional sales tax, there would be no returns filed by individuals. The tax to
support the federal government would simply be collected at the point
of sale by the retailer in the same manner that state and local sales taxes
are collected in most states today. In turn, the retailer would turn what
he collects over to the state and the state would submit the state’s pro
rata share of the federal budget needs to Washington, DC. Even though
our federal government should not be involved in so many expensive
77
(and unconstitutional) programs that require the collection of a sales or
income tax at all, a tax handled in this way would be far more in line
with the concept of taxation held by our founding fathers. The federal
government would not directly interact with the citizens at all, only with
the states, as envisioned by the founders. For almost all of us, there
would be no more record keeping, audits, late fees and other penalties,
interest, or fear of criminal prosecution and incarceration. Wow! What a
burden to lift off of our own shoulders!
If your thesis in this book is correct, hundreds of thousands of people
have been punished with both civil and criminal fines illegally since
the beginning of the income tax. In other words, if filing returns is
voluntary, many people have been convicted and have spent jail time
for not volunteering.
Your point is well taken. It is my position that the issues in this
book are quite clear to anyone with a modicum of sense. The IRS is com‐
pletely honest when it states that we have a voluntary tax system. How‐
ever, Department of Justice attorneys who argue to the Court that indi‐
viduals are required to file and therefore required to waive their Fifth
Amendment protected rights are either ignorant of the law or they are
bald‐faced liars. The same goes for district court and appellate judges.
I personally believe that the situation has gone on so long that the
establishment has an investment in continuing the lies, the doublespeak
and the Alice in Wonderland logic. Incidentally, the longer we allow this
un‐American system to continue, the more entrenched it becomes. That
is another reason why the system cannot be changed only by challenges
in the courts, or only by writing to your congresspersons. It is going to
take both, but if we are willing to put our traditional American determi‐
nation to the task, we will get it done. A few hundred thousand of us
simply have to get off our collective duffs, make the safe Claim for Re‐
fund challenges I have outlined, and work to gather support for con‐
gresspersons who are pushing for true reform with a national sales tax,
for example, and it will happen.
78

On Compulsory Production of
Documents
by Lowell Becraft, Esq.
T
he provisions of the United States Code regarding summons en‐
forcement proceedings, 26 U.S.C., §7601 through §7610, have over
the last three decades been the subject of much litigation and con‐
sequently have been construed by the federal courts of appeals as well as
the United States Supreme Court.
¾ In Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508 (1964), the Su‐
preme Court held that a witness or taxpayer could challenge an
IRS summons on any appropriate grounds and may assert as a
defense to the proceedings the fact that the materials sought by
the IRS relate solely for use as evidence in a criminal prosecu‐
tion.
¾ In United States v. Powell, 379 U.S. 48, 85 S.Ct. 248 (1964), the
Court outlined four requirements which must be shown before
any summons can be enforced.
¾ In Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534 (1971),
the Court held that an IRS summons could lawfully be used for a
criminal investigation provided the summons also had a civil
purpose.
¾ In Couch v. United States, 409 U.S. 322, 93 S.Ct. 611 (1973), the
Court held that the Fifth Amendment to the U.S. Constitution
did not protect tax records in the possession of a taxpayer’s ac‐
countant.
¾ In United States v. Bisceglia, 420 U.S. 141, 95 S.Ct. 915 (1975), the
Court allowed the issuance of a John Doe summons for the pur‐
pose of investigating a $40,000 deposit of $100 bills.
79
¾ In Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569 (1976), the
Court held that the Fifth Amendment did not protect tax records
in the possession of the taxpayer’s attorney. See also United
States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548 (1983).
This line of cases clearly shows that the Internal Revenue Service
has very broad summons authority and may secure virtually any record
or document in the possession of a third party.
The Nature of IRS Summons
IRS summonses are issued to two separate and distinct classes of
persons, with one class representing third parties who have possession
and custody of books and records of the taxpayers under investigation,
and the other class comprising taxpayers under investigation. A sum‐
mons enforcement action is utilized when compliance with the summons
has not been obtained due to the taxpayer notifying the third party not to
comply, by the institution of a suit to enjoin enforcement, or by the re‐
fusal on the part of the taxpayer to comply when summons is directed to
him. When the Service proceeds to enforce a summons issued to either a
third party record holder or the taxpayer himself, its burden of proof is
very minimal and amounts to nothing more than proof of compliance
with the requirements of Powell, supra. See United States v. Will, 671
F.2d 963 (6th Cir. 1982).
Whereas the burden of proof upon the Service is relatively light in
summons enforcement actions, a taxpayer opposing enforcement of the
summons has a far heavier burden to carry. Basically, a taxpayer seeking
denial of enforcement of the summons has available three defenses: (a)
bad faith; (b) institutional posture, and (c) the Fifth Amendment. The
“bad faith” defense is based upon Reisman v. Caplin, supra, and
Donaldson v. United States, supra, and involves those situations wherein
the summons has been issued for the improper purpose of gathering
evidence needed for a criminal prosecution after referral to the Depart‐
ment of Justice. The “institutional posture” defense is based upon United
States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357 (1978), and
relates to those situations when the Service has made an institutional
commitment to criminally prosecute the taxpayer under investigation
80
On Compulsory Production of Documents
but desires to withhold referral to the Justice Department to allow for the
gathering of additional evidence needed for a successful criminal prose‐
cution. (Pursuant to the 1982 TEFRA, summonses may now be issued
solely for a criminal investigation, thus these decisions no longer have
any effect.)
These two defenses are most often utilized by a taxpayer when in‐
tervening in a third party summons enforcement action or commencing
an action to enjoin enforcement of the summons. Although a taxpayer
opposing enforcement of a summons issued to him may assert the de‐
fenses of “bad faith” and “institutional posture,” he will most likely rely
upon the third defense available to him, that of the Fifth Amendment.
The History and Development of the Fifth Amendment Right Against
Self‐Incrimination
The history and development of the Fifth Amendment right against
self‐incrimination has been one of slow but sure expansion of the bene‐
fits of its protection. James Madison, the prime author of this provision
in the Bill of Rights to the U.S. Constitution, sought this provision to pre‐
vent the development in our country of proceedings similar to or identi‐
cal with Spanish Inquisitions or Star Chamber proceedings. A cursory
examination of the William Penn Case, 6 How. St. Tr. 951 (1670), reveals
that resort to “Spanish Inquisitions” has on many occasions been desired
in order to bring about the efficient operation of governmental machin‐
ery; this is what Madison desired to avoid by inserting the Fifth
Amendment into our Constitution.
The original intent or purpose for the Fifth Amendment was to
compel the government to procure independent evidence of the facts and
proof of a crime other than through the mouth of the accused. Without
such a requirement and with the availability of procedures such as the
Inquisition or Star Chamber, the government could constantly harass
law abiding citizens and might on some occasion procure a confession
through duress and coercion. But as is well known, such confessions are
highly suspect; hence we have the protection of the Fifth Amendment.
One of the most appropriate statements concerning the Fifth
Amendment and its operation was made by U.S. Supreme Court Justice
John Marshall in the case of United States v. Aaron Burr. Chief Justice
81
Marshall, quoted in Counselman v. Hitchcock, 142 U.S. 547, 565, 12 S.Ct.
195 (1892), maintained that a witness could plead the Fifth Amendment
not only in situations where his answer to a question would directly im‐
plicate him in a crime, but also in response to questions the answer to
which would provide a link in the chain of evidence needed to convict
the witness of a crime. Protection from compulsory testimony designed
to implicate a witness in a crime has been secured through the Fifth
Amendment and has been one of the most sacred principles known to
American jurisprudence. This principle of the Fifth Amendment protec‐
tion from compulsory testimony, absent a grant of immunity, has seen
no erosion in its application since first expounded and requires but few
citations to support it. The statutory provisions regarding immunity
grants are found in 18 U.S.C., §§ 6001, et seq. See Hale v. Henkel, 201
U.S. 43, 26 S.Ct. 370 (1906), Blau v. United States, 340 U.S. 159, 71 S.Ct.
223 (1950), and Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814
(1951).
The Fifth Amendment and Books and Records
The question of Fifth Amendment protection for the books, records
and personal documents of a witness who may be implicated in a crime
was first really considered in Boyd v. United States, 116 U.S. 616, 6 S.Ct.
524 (1886), where the Supreme Court expanded Fifth Amendment pro‐
tection against compulsory testimony to books and records of the wit‐
ness. In granting such protection, the Court held:
And any compulsory discovery by extorting the party’s
oath, or compelling the production of his private books and
papers, to convict him of crime, or to forfeit his property, is
contrary to the principles of a free government. It is abhorrent
to the instincts of an Englishman; it is abhorrent to the instincts
of an American. It may suit the purposes of despotic power,
but it cannot abide the pure atmosphere of political liberty and
personal freedom. —116 U.S., at 631‐32.
And we are further of opinion that a compulsory produc‐
tion of the private books and papers of the owner of goods
sought to be forfeited in such a suit is compelling him to be a
82
witness against himself, within the meaning of the fifth

amendment to the Constitution, and is the equivalent of a
search and seizure—and an unreasonable search and seizure—
within the meaning of the fourth amendment. 116 U.S., at 634‐
35.
The Fifth Amendment and Corporations and Partnerships
Since the decision in Boyd, the Supreme Court has on some occa‐
sions limited the full import of that historic ruling. In Wilson v. United
States, 221 U.S. 361, 31 S.Ct. 538 (1911), the Court held that the Boyd prin‐
ciple did not apply to corporations. See also United States v. Peter, 479
F.2d 147 (6th Cir. 1973); and In Re Grand Jury Empanelled March 8, 1983,
722 F.2d 294 (6th Cir. 1983).
Still later, application of Boyd to partnership records was prohibited
in Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179 (1974). However until
1984, it still appeared that personal, non‐corporate tax records of a per‐
son with potential criminal liability were still protected by Boyd princi‐
ples. When the Supreme Court held that Boyd protection did not apply to
partnership records in Bellis, supra, it expressly affirmed this proposi‐
tion by stating:
The privilege applies to the business records of the sole
proprietor or sole practitioner as well as to personal documents
containing more intimate information about the individual’s
private life. (417 U.S., at 87‐88.)
Likewise, Fisher, supra, did not emasculate Boyd in any respect as
the issue in that case was completely different; in fact, the Court in Fisher
definitely appeared to have sided with Boyd in the last paragraph of its
opinion:
Whether the Fifth Amendment would shield the taxpayer
from producing his own tax records in his possession is a ques‐
tion not involved here; for the papers demanded here are not
his ‘private papers,’ see Boyd v. United States. (425 U.S., at
414.)
Shortly after its decision in Fisher, the Court was confronted with a
83
similar issue in Andresen v. Maryland, 427 U.S. 463, 473‐74, 96 S.Ct. 2737
(1976). Here, a search warrant had been issued for the seizure of certain
private books and records, and the criminal defendant was not required
to produce those records or authenticate them because authentication
was achieved by the use of third parties. The Supreme Court in Andresen
did not emasculate Boyd in any way and in fact expressly affirmed Boyd:
Thus, although the Fifth Amendment may protect an indi‐
vidual from complying with a subpoena for the production of
his personal records in his possession because the very act of
production may constitute a compulsory authentication of in‐
criminating information..., a seizure of the same materials by
law enforcement officers differs in a crucial respect‐‐the indi‐
vidual against whom the search is directed is not required to
aid in the discovery, production or authentication of incrim‐
inating evidence.
The Fifth Amendment and Evidence
The Fifth Amendment to the U.S. Constitution states that no person
shall be compelled to be a “witness” against himself in a criminal prose‐
cution. Similar provisions exist in the constitutions of the various states
of our nation, with some such constitutional provisions following the
Fifth Amendment via use of the word “witness” while other provisions
offer more expansive protection by stating that no person shall be com‐
pelled to give “evidence” against himself in a criminal prosecution.
There exist distinct and crucial differences in the type of protection of‐
fered under these two different types of constitutional provisions. The
protection against being compelled to give “evidence” against the ac‐
cused is far broader than protection only afforded to “witnessing” and
giving “evidence” arguably would include providing to the prosecution
documents incriminating to the accused. The protection afforded by the
Fifth Amendment is only that of proscribing testimonial compulsion and
is not as all encompassing as the provisions prohibiting compulsory
production of “evidence.”
Neither Fisher nor Andresen disturbed the holding in Boyd or Bellis
and both are wholly consistent with these two other cases. What the Su‐
84
preme Court did in these two cases was note the crucial difference be‐
tween protecting “evidence” and being a compelled “witness.” Private
papers may no longer be specially protected and in a distinct and differ‐
ent class from other evidence, property or contraband. What the Su‐
preme Court has directed is that an accused cannot be compelled to pro‐
duce his own incriminating books and records because such would in‐
volve to a degree an amount of authentication of such books and records
on the part of the accused. Such a production of documents is tanta‐
mount to compelled testimony specifically proscribed by the Fifth
Amendment. What the Supreme Court has commanded is that if the
government desires to obtain personal books and records and use the
same against the accused, it must be done through witnesses other than
the accused himself.
A survey of pre‐1984 decisions reveals the continued vitality of the
principles of Boyd and the crucial government‐citizen relationship which
it protects.
¾ In the First Circuit case of In Re Grand Jury Proceedings (Marti‐
nez), 626 F.2d 1051, 1056 (1st Cir. 1980), the court found that
“personal, self‐created business records in the possession of a
sole proprietor or practitioner would enjoy a privilege against
subpoena.”
¾ In the Second Circuit, the case of United States v. O’Henry’s
Film Works, Inc., 598 F.2d 313 (2nd Cir. 1979), held that a corpo‐
rate official’s Fifth Amendment plea to questions concerning the
location of corporate records was valid. (See also United States
v. Beattie, 522 F.2d 267 (2nd Cir. 1975), United States v. Patter‐
son, 219 F.2d 659 (2nd Cir. 1955), In Re Grand Jury Subpoena
Duces Tecum, 657 F.2d 5 (2nd Cir. 1981), In Re Grand Jury Wit‐
ness (Gilboe), 699 F.2d 71 (2nd Cir. 1983), and United States v.
Bobart Travel Agency, Inc., 699 F.2d 618 (2nd Cir. 1983).)
¾ The three cases of In Re Grand Jury Empanelled March 19, 1980,
680 F.2d 327 (3rd Cir. 1982), In Re Grand Jury Proceedings (Jo‐
hanson), 632 F.2d 1033 (3rd Cir. 1980), and In Re Grand Jury
(Colucci), 597 F.2d 851 (3rd Cir. 1979), demonstrate that the
85
Third Circuit has protected private books and records from

compulsory production.
¾ In United States v. Henry, 491 F.2d 702 (6th Cir. 1974), the Sixth
Circuit quashed an IRS summons to a taxpayer already indicted
on a narcotics offense.
¾ The Seventh Circuit, faced with a pro se litigant in United States
v. Awerkamp, 497 F.2d 832 (7th Cir. 1974), who was prematurely
raising Fifth Amendment objections to the enforcement of an IRS
summons, held that the taxpayer could make specific Fifth
Amendment pleas to questions directed at him when he com‐
plied with the order of enforcement.
¾ In two other Seventh Circuit cases, Hill v. Philpott, 445 F.2d 144
(7th Cir. 1971), and United States v. Dickerson, 413 F.2d 1111
(7th Cir. 1969), that court held that the records of an individual
taxpayer were immune from a summons.
¾ The Eighth Circuit, in Isaacs v. United States, 256 F.2d 654 (8th
Cir. 1958), held a Fifth Amendment plea of a corporate official to
be valid when he responded to questions relating to $99,000 in
checks written by the corporation.
¾ Another Eighth Circuit opinion in United States v. Plesons, 560
F.2d 890 (8th Cir. 1977), would have granted protection to the re‐
cords of a doctor if he had raised his Fifth Amendment plea to a
grand jury subpoena before testifying about those records.
¾ In the Ninth Circuit cases of United States v. Cohen, 388 F.2d 464
(9th Cir. 1967), and United States v. Helina, 549 F.2d 713 (9th
Cir. 1977), protection of a taxpayer’s records from production
was upheld.
The above cases demonstrate that the great weight of authority in
the various circuits has been that an individual taxpayer’s records are
protected from compulsory production because of the Fifth Amendment.
The Fifth and Eleventh Circuits have apparently treated this precise
issue more often than the others and have conclusively held that tax re‐
cords of an individual are immune from production on the basis of Boyd.
86
In Stuart v. United States, 416 F.2d 459 (5th Cir. 1969), In Re Grand Jury
Proceedings (McCoy), 601 F.2d 162 (5th Cir. 1979), In Re Oswalt, 607
F.2d 645 (5th Cir. 1979), In Re Grand Jury Subpoena (Kent), 646 F.2d 963
(5th Cir. 1981), and United States v. Meeks, 642 F.2d 733 (5th Cir. 1981),
this principle was upheld. More specifically in United States v. Davis,
636 F.2d 1028, 1043 (5th Cir. 1981), that court held:
Their cumulative teaching is that any incriminating papers
in the actual or constructive possession of an individual, which
he holds in his individual capacity, ... and which he himself
wrote or which were written under his immediate supervision,
are absolutely protected by the Boyd principle from production
by subpoena or equivalent process, regardless of whether they
are business‐related or more inherently personal in content.
The Sixth Circuit does not deviate in any respect from comparable
decisions made in other circuits. In Patty v. Bordenkircher, 603 F.2d 587
(6th Cir. 1979), the court held that the government couldn’t compel a
criminal defendant to testify concerning his previous criminal convic‐
tions where they were relevant to a habitual offender statute. In United
States v. Hill, 601 F.2d 253 (6th Cir. 1979), that court acknowledged that
a taxpayer could raise Fifth Amendment objections by refusing to an‐
swer specific questions. In United States v. Doss, 563 F.2d 265, 275 (6th
Cir. 1977), a case involving an indicted defendant called before a grand
jury, that court concluded:
However, upon the trial of the defendant in a criminal
case, it would be a clear violation of a defendant’s right against
self‐incrimination under the Fifth Amendment of the Constitu‐
tion to compel him to take the stand, testify and produce his
records, relating to the matter with which he is charged.
The erosion of Boyd principles started in the early eighties. In
United States v. Schlansky, 709 F.2d 1079, 1084 (6th Cir. 1983), a case
where the taxpayer under investigation was compelled to surrender cer‐
tain of his records which had previously been in his accountant’s posses‐
sion, the Sixth Circuit held that the three elements of compulsion, testi‐
monial communication and incrimination by such communication were
87
requisites to a valid assertion of the Fifth Amendment:
Under this focus the key question is whether the compelled
production involves compelled testimonial communication.
The answer to this question in turn depends on whether the
very act of production supplies a necessary link in the eviden‐
tiary chain. Does it confirm that which was previously un‐
known to the government; e.g., the existence or location of the
materials? Does it supply assurance of authenticity not avail‐
able to the government from sources other than the person
summonsed? Though the party seeking to avoid compliance
does not have to show more than is required to demonstrate
that the privilege is properly claimed, he must make some
showing that the act of production alone would involve an in‐
criminating testimonial communication.
The Third Circuit case of In Re Grand Jury Empanelled March 19,
1980, 680 F.2d 327 (3rd Cir. 1982), involved the issue of compulsory pro‐
duction of books and records and that court continued to uphold the
principles of Boyd. Because of a desire to have the Supreme Court adopt
the Schlansky rationale, the government sought and obtained a writ of
certiorari with the United States Supreme Court to review the decision in
this case.
On February 28, 1984, the U.S. Supreme Court reversed the above
decision in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 1242 (1984).
In this pronouncement, the Court reversed its former holding in Boyd
and held that books and records were no longer protected by the Fifth
Amendment. It reasoned that the Fifth Amendment protected only com‐
pelled testimony and not books and records, and it relied heavily upon
its rationale in Fisher, supra. But while the Court decided to withdraw
Fifth Amendment protection to books and records, it held that produc‐
tion of such books and records was entitled to such protection. The Court
reasoned that compulsory production of books and records via subpoena
or summons is communicative in nature and similar to giving testimony,
therefor such production is entitled to Fifth Amendment protection:
Compliance with the subpoena tacitly concedes the exis‐
88
tence of the papers by the taxpayer. It also would indicate the
taxpayer’s belief that the papers are those described in the
subpoena.
The U.S. Supreme Court in Boyd v. United States, supra, clearly
held that compulsory production via subpoena or summons of books,
records and other documents in the possession of a witness was not
permitted by the Fifth Amendment. This decision prevailed for some 98
years and effectively prevented the government from obtaining such
written documentation from one having potential criminal liability. In
United States v. Doe, supra, the Court changed its construction of the
Fifth Amendment and held that the Amendment did not protect such re‐
cords; and by making this change, a problem not addressed by Boyd
arose. If the records are not protected from compulsory production by
the amendment, what protection by the Fifth Amendment is left to a
witness under process to produce documents? In Doe, the Court ana‐
lyzed this situation and found that the mere act of producing such
documents via compulsion non‐verbally provides the following:
(a) Such production concedes that the requested documentation ex‐
ists;
(b) Such production proves that the same are in the witness’ posses‐
sion;
(c) Such production proves that the witness believes that the docu‐
ments so produced are those which are sought;
(d) The act of production authenticates the documents.
Because of these non‐verbal but communicative aspects present
within any act of production, the Court held that the Fifth Amendment
applied to the act of production. Thus, even though there is no longer
any protection afforded by the Fifth Amendment for books and records,
the Fifth Amendment’s protection for the act of production accomplishes
virtually the same result as under the Boyd doctrine.
This has proven to be the case as shown by various cases decided
subsequent to Doe. In In re Kave, 760 F.2d 343, 355‐56 (1st Cir. 1985), an
attorney was permitted to plead the protection of the Fifth Amendment
89
because the request to produce certain documentary evidence would

have in effect, under the “act of production” rule, forced her to testify
against herself, the court explaining:
The compelled production of such documents is prohibited
only if there are testimonial aspects to the act of production it‐
self. ... This rule extends to the business records of a sole pro‐
prietor ... In this context, the rule has three elements: The Fifth
Amendment protects against compulsory surrender of (1) per‐
sonal business records, (2) in the possession of a sole proprietor
or practitioner, (3) only with respect to the testimonial act im‐
plicit in the surrender itself.
For a few years after Doe, its rule was applied to corporate records.
The Doe “act of production” rule was followed in In Re Grand Jury Pro‐
ceedings, 747 F.2d 1098 (6th Cir. 1984), and In Re Grand Jury Matter, 768
F.2d 525 (3rd Cir. 1985), to prevent the compulsory production of corpo‐
rate and partnership records. However, in Braswell v. United States, 487
U.S. 99, 108 S.Ct. 2284 (1988), the Court held that Doe did not apply to
corporate records; see also Doe v. United States, 487 U.S. 201, 108 S.Ct.
2341 (1988).
The Fifth Amendment and Personal Records
But the application of Doe has continued as to personal and private
records. In United States v. (Under Seal), 745 F.2d 834 (4th Cir. 1984), a
case decided some seven (7) months after Doe, the Fourth Circuit specifi‐
cally held that personal and individual records can’t be forcibly pro‐
duced by any process, over a Fifth Amendment objection. See also
United States v. Cates, 686 F.Supp. 1185 (D.Md. 1988); United States v.
Argomaniz, 925 F.2d 1349 (11th Cir. 1991); and United States v. Sharp,
920 F.2d 1167 (4th Cir. 1990).
In In Re Grand Jury Proceedings on Feb. 4, 1982, 759 F.2d 1418 (9th
Cir. 1985), it was determined that records of a party under investigation
in the hand’s of his attorney were entitled to protection under the Doe
“act of production” rule. Further, there is no “tax exception” to this rule.
See United States v. Troescher, 99 F.3d 933 (9th Cir. 1996). Thus, accord‐
ing to the rationale of these cases, the compulsory production of private
90
personal records cannot be obtained in view of a valid Fifth Amendment
objection. Therefore, it is clear that the decision in Boyd still produces a
legal result, even if from its “grave.”
A summons or subpoena for individual books and records, either
personal or business, cannot be enforced over a Fifth Amendment objec‐
tion because of the Doe “act of production” rule.
The Fifth Amendment and Civil Proceedings
The rule that a party or a witness can plead the right against self‐
incrimination in civil proceedings has been well established by an abun‐
dance of authority. In Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316
(1973), the U.S. Supreme Court stated this rule as follows:
The Amendment not only protects the individual against
being involuntarily called as a witness against himself in a
criminal prosecution but also privileges him not to answer offi‐
cial questions put to him in any other proceeding, civil or
criminal, formal or informal, where the answers might incrimi‐
nate him in future proceedings.
The subsequent decisions of Maness v. Meyers, 419 U.S. 449, 95 S.Ct.
584 (1975), and Pillsbury Company v. Conboy, 459 U.S. 248, 103 S.Ct. 608
(1983), serve only to buttress this basic principle and apply it to specific
situations. This rule is followed by the federal appellate courts. See In re
Kave, 760 F.2d 343 (1st Cir. 1985); National Life Ins. Co. v. Hartford Ac‐
cident & Indemnity Co., 615 F.2d 595 (3rd Cir. 1980); Wehling v. Colum‐
bia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979); In Re Corrugated
Container Anti‐Trust Litigation, 620 F.2d 1086 (5th Cir. 1980); In re Mor‐
ganroth, 718 F.2d 161 (6th Cir. 1983); and United States v. Jones, 703 F.2d
473 (10th Cir. 1983).
Decisions on this point by various state courts reveal that this rule is
not a modern one. In Morris v. McClellan, 154 Ala. 639, 45 So. 641, 645
(1908), that Alabama court acknowledged that a party in a civil case
could claim the right against self‐incrimination. In International Broth‐
erhood of Teamsters v. Hatas, 287 Ala. 344, 252 So.2d 7, 21 (1971), the
court held:
The privilege against self‐incrimination afforded by section
91
6 of the 1901 Constitution of Alabama has been held available
to a party in a civil action.
Similar decisions have been made by courts in other States in the
Union. In State ex rel. Hudson v. Webber, 600 S.W.2d 691, 692 (Mo. App.
1980), a judgment debtor pleaded his right against self‐incrimination in
answer to questions posed to him regarding his financial affairs, his fear
of incrimination being related to federal taxes. The court sanctioned the
answers of this party:
This privilege is available to a judgment debtor in proceed‐
ings pursuant to sections 513.380‐513.390, RSMO 1978.
The great weight of other State authorities holds that the right
clearly applies in civil cases. See Carson v. Jackson, 466 So.2d 1188
(Fla.App. 1985); Lewis v. First American Bank of Palm Beach, 405 So.2d
300 (Fla.App. 1981); Travis Meat & Seafood Co. v. Ashworth, 127 Ga.
App. 284, 193 S.E.2d 166 (1972); In re Zisook, 88 Ill.2d 321, 430 N.E.2d
1037 (1982); Martincich v. City of Hammond, 419 N.E.2d 240 (Ind. App.
1981); Whippany Paper Board Co. v. Alfano, 176 N.J.S. 363, 423 A.2d 648
(1980); Banca v. Town of Phillipsburg, 181 N.J.S. 109, 436 A.2d 944
(1981); People ex rel. Anonymous v. Saribeyoglu, 131 Misc. 2d 647, 501
N.Y.S.2d 286 (1986); Byrd v. Hodges, 44 N.C.App. 509, 261 S.E.2d 269
(1980); Ohio Civil Rights Commission v. Parklawn Manor, Inc., 41 Ohio
St.2d 47, 322 N.E.2d 642 (1975); Rey v. Means, 575 P.2d 116 (Okl. 1978);
Caloric Corp. v. Unemployment Compensation Board of Review, 452
A.2d 907 (Pa. Comwlth. 1982); Ex Parte Stringer, 546 S.W.2d 837
(Tex.App. 1985); Smith v. White, 695 S.W.2d 295 (Tex.App. 1985); Affleck
v. Third Judicial District Court of Salt Lake County, 655 P.2d 665 (Utah
1982); Eastham v. Arndt, 28 Wash. App. 524, 624 P.2d 1159 (1981); and In
re Grant, 83 Wis.2d 77, 264 N.W.2d 587 (1978).
The Fifth Amendment and Tax Returns
There are basically two important Supreme Court decisions regard‐
ing the circumstances under which one may assert the Fifth Amendment
regarding income tax returns. The first and most important case was
United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607 (1927), where the
Court concluded that to assert the Fifth, one must do it on the return. See
92
also Garner v. United States, 424 U.S. 648, 662‐63, 96 S.Ct. 1178 (1976).
An example of how today’s federal appellate courts address this is‐
sue is shown via United States v. Neff, 615 F.2d 1235, 1238 (9th Cir.
1980), where that court held:
The Supreme Court has stated that the privilege against
self‐incrimination, if validly exercised, is an absolute defense to
a section 7203 prosecution for failure to file an income tax re‐
turn. Garner v. United States, supra, 424 U.S. at 662‐63, 96 S.Ct.
at 1186‐1187. The Court has also held, however, that the privi‐
lege does not justify an outright refusal to file any income tax
return at all. United States v. Sullivan, 274 U.S. 259, 263, 47
S.Ct. 607, 71 L.Ed. 1037 (1927). Furthermore, an objection may
properly be raised only in response to specific questions asked
in the return. Id. See Garner v. United States, 501 F.2d 228,
239 n.18 (9th Cir. 1974) (en banc), aff’d Garner v. United States,
supra, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370.
We are here faced with a case in which the taxpayer did assert his
privilege in response to specific questions in the tax return form, but did
so on such a wholesale basis as to deny the IRS any useful financial or
tax information. Other circuits, faced with similar wholesale assertions of
the privilege against self‐incrimination, have concluded that a tax return
form which contains no information from which tax liability can be cal‐
culated does not constitute a tax return within the meaning of the IRS
laws. Once these courts determine that the taxpayer has filed no return,
simple application of the Sullivan precedent, which states that the Fifth
Amendment will never justify a complete failure to file a return, invali‐
dates the Fifth Amendment defense. E. g., United States v. Irwin, 561
F.2d 198, 201 (10th Cir. 1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, 54
L.Ed.2d 755 (1978); United States v. Silkman, 543 F.2d 1218, 1219‐20 (8th
Cir. 1976) (per curiam), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53
L.Ed.2d 230 (1977); United States v. Daly, 481 F.2d 28, 30 (8th Cir.) (per
curiam), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973).
93
On the Meaning of Certain Words and
Phrases from the IRS Code
A
s a communication expert, I have a Masters Degree from the
University of Colorado in Communications and I have over
fourteen years of experience teaching English and communica‐
tions at the elementary, junior‐high, high school, and college levels. I
have made an extensive study of the morpho‐syntax of English and have
applied my skills to the determination of the various meanings of words
used in the IRS Code and in its various publications.
What follows is an analysis of selected words and phrases used in
the IRS Code and in some of the IRS publications. My comments in the
last row of each table may or may not conform to what the courts have
held as definitions of the defined words or phrases.

Element Definition or Comment
Word: voluntary
Context: “Our system of taxation is based upon voluntary
assessment and payment, not distraint.” — Flora v.
U.S., 362 US 145
Webster: 1) brought about by one’s own free choice; given or
done of one’s own free will; freely chosen or under‐
taken. … 7) arising in the mind without external con‐
straint; spontaneous. 8) in law, (a) acting or done
without compulsion or persuasion;
Black’s Law: Unconstrained by interference; unimpelled by an‐
other’s influence; spontaneous; Acting of oneself.
Coker v. State, 199 Ga. 20, 33; S.E. 2nd 171, 174.
IR Code: [undefined]
Comment: In my opinion, the word “voluntary” means “done
by an act of free choice.”
Word: compliance
Context: “Our tax system is based on individual self assess‐
94
On the Meaning of Certain Words and Phrases from the IRS Code

ment and voluntary compliance.” Mortimer Caplin,
former IRS Commissioner
Webster: 1) the act of complying; a yielding, as to a request,
wish, desire, demand or proposal; concession; sub‐
mission. 2) the act of complying; a yielding, as to a
request, wish, desire, demand or proposal; conces‐
sion; submission.
Black’s Law: Submission, obedience, conformance.
Comment: In my opinion, the word “compliance” means
“obedience to” or “yielding to.”
Word: voluntary compliance
ment and voluntary compliance.” —Mortimer Cap‐
lin, former IRS Commissioner
Webster: [definition of separate words, above, combined]
Black’s Law: [definition of separate words, above, combined]
Comment: In my opinion, the phrase “voluntary compliance”
means freedom to choose whether or not to assess
oneself or to yield to a self‐assessment system. Before
the term “compliance” can come into play, practi‐
cally, a person must have first “volunteered” to as‐
sess himself a tax, otherwise, “compliance” remains a
moot issue. In other words, compliance, presumably
with tax laws, is irrelevant unless one volunteers to
assess oneself and submit said self assessment to the
Internal Revenue Service, as the terms operate se‐
quentially.
Word: required
Context: “Also, answer the questions on the back if you are
not required to file a return for the tax period
shown.” —IRS form letter request for information
about Form 1040)
95

Webster: 1) to demand; to ask or claim as by right or author‐
ity; … 3) to order; to command; to call upon to do
something;
Black’s Law: Submission, obedience, conformance.
IR Code: [Undefined]
Comment: In my opinion, “required” means when one is
compelled to do something by written authority; in
this case, file a tax return. Further, when something
is “required” by law, there is usually a correspond‐
ing penalty attached for not doing the “required” act.
As a check, you may want to see whether there is a
penalty for not filing an income tax return.
Word: must
Context: “You must fill in all parts of the tax form that apply
to you.” —IRS Notice 609, Rev. Oct. 1986
Webster: An auxiliary used with the infinitive of various
verbs to express: (a) compulsion, obligation, re‐
quirement, or necessity; as, I must pay her; (b) prob‐
ability; as, then you must be my cousin; (c) certainty
or inevitability; as, it must have rained while we
were in.
Black’s Law: This word, like the word “shall” is primarily of
mandatory effect (cite omitted)… and in that sense is
used in antithesis to “may.” But this meaning of the
word is not the only one, and it is often used in a
merely directory sense, and consequently is a syno‐
nym for the word “may” not only in the permissive
sense of that word, but also in the mandatory sense
which it sometimes has.
Comment: In my opinion, the word “must,” in this context,
imparts a mandatory effect. However, in legal usage
the word “must” is often synonymously used for the
word “may,” according to Black’s Law above. Appar‐
96

ently the word “must” is a key word and I believe it
would be prudent for you to consult with legal coun‐
sel for its legal meaning whenever it appears, espe‐
cially in statutes.
Word: may
Context: “However, we may give you other notices if we
have to examine your return or collect any tax, inter‐
est, or penalties.” —IRS Privacy Act Notice 609, Rev.
Oct. 1986
Webster: (b) possibility or likelihood; as, it may rain; (c) per‐
mission or chance; as, you may go; (e) wish, hope or
prayer.
Black’s Law: An auxiliary verb qualifying the meaning of an‐
other verb by expressing ability, competency, liberty,
permission, possibility, probability or contingency,
(cite omitted). Regardless of the instrument, how‐
ever, whether constitution, statute, deed, contract or
whatever, courts not infrequently construe ‘may’ as
“shall” or “must” to the end that justice may not be a
slave to grammar. However, as a general rule, the
word “may” will not be treated as a word of com‐
mand unless there is something in context or subject
matter of act to indicate that it was used in such
sense. (cite omitted) In construction of statutes and
presumably in construction of federal rules, the word
“may” as opposed to “shall” is indicative of discre‐
tion or choice between two or more alternatives, but
context in which word appears must be the control‐
ling factor. (cite omitted)
Comment: In my opinion, the word “may” means having a
free choice between two or more alternatives.
Word: shall
Context: “Returns with respect to income taxes under Subti‐
tle A shall be made by the following:...” —Sec. 6012,
I.R. Code as referred to by IRS Privacy Act Notice
97

609, Rev. Oct. 1986
Webster: (a) to express futurity in the first person, and de‐
termination, compulsion, obligation, or necessity in
the second and third persons;
Black’s Law: As used in statutes, contracts or the like, this word
is generally imperative or mandatory in common or‐
dinary parlance, and in its ordinary signification, the
term “shall” is a word of command, and one which
has always or which must be given a compulsory
meaning; as denoting obligation. It has a peremptory
meaning, and it is generally imperative or manda‐
tory. It has the invariable significance of excluding
the idea of discretion, and has the significance of op‐
erating to impose a duty which may be enforced,
particularly if public policy is in favor of this mean‐
ing, or when addressed to public officials, or where a
public interest is involved, or where the public or
person have rights which ought to be exercised or
enforced, unless a contrary intent appears. People v.
O’Rourke, 124 Cal. App 752, 13P.2d 989, 992. But it
may be construed as merely permissive or directory
(as equivalent to “may,”) to carry out the legislative
intention and in cases where no right or benefit to
anyone depends on its being taken in the imperative
sense, and where no public or private right is im‐
paired by its interpretation in the other sense. Wis‐
dom v. Board of Sup’rs of Polk County, 236 Iowa 669, 19
N.W.2d 602, 607, 608.
Comment: In my opinion, the word “shall” is generally used
in the permissive sense (first person) and is manda‐
tory when used in the second or third person. How‐
ever, in legal usage, as it is used in the above statu‐
tory context, the word “shall” could mean “may” if a
98

right is impaired or violated (See Black’s Law above).
For a complete understanding of what “shall” means
in this legal context, I suggest you consult further
with an attorney.
Word: assessment
Context: “Our system of taxation is based upon voluntary
assessment and payment, not distraint.” — Flora v.
U.S., 362 US 145
Webster: 2) a method or schedule of assessing; 3) an amount
assessed. Assess: to set or fix a certain sum against,
as a tax, fine or special payment; as to assess each
citizen in due proportion.
Black’s Law: It is often used in connection with assessing prop‐
erty taxes or levying of property taxes. Also, the
amount assessed. Taxation: The process whereby the
Internal Revenue Service imposes an additional tax
liability. If, for example, the IRS audits a taxpayer’s
income tax return and finds gross income under‐
stated or deductions overstated, it will assess a defi‐
ciency in the amount of the tax that should have been
paid in light of the adjustments made. (assess) To as‐
certain; fix the value of. To impose a pecuniary
(monetary) payment upon persons or property. To
tax.
Comment: In my opinion, the word “assessment,” as used in
the above legal citation, means the process or method
by which a tax due is ascertained, i.e., by the indi‐
vidual “self assessment” method. In another context,
the word “assessment” could mean “IRS assess‐
ment.”
ADDITIONAL COMMENTARY: In this context, it
is my opinion that the assessment spoken of is the
“self” assessment method as the assessment is de‐
99

scribed as “voluntary,” which means the free choice
of an individual to decide whether or not to assess a
tax on his income), as opposed to a tax assessment on
income made by the IRS and billed to the taxpayer
(as described in Black’s Law above).
Note, however, that the definition of “assessment”
in Black’s Law is defined only as “imposing) an addi‐
tional tax liability” against the taxpayer based on a
determined “deficiency” (the amount of income tax
still due and owing). In other words, there is no de‐
scription in this definition of an “initial” or “original”
income tax assessment that was imposed by the IRS
or by the individual (i.e., self assessment).
In any event, I feel it important to inform you of
the two methods of assessment: 1) a voluntary, self
assessment, and 2) an IRS assessment made after a
voluntary, self assessment is made by the individual
and the IRS determines that the self assessment (re‐
sulting amount) was deficient.
Word: self assessment
ment and voluntary compliance.” —Mortimer Cap‐
lin, former IRS Commissioner
Webster: [undefined]
Black’s Law: [undefined]
Comment: In my opinion, the term “self assessment” means a
method of ascertaining an amount of tax where the
amount is determined solely by the individual
through his own efforts to assess this tax upon his
property or income AFTER he has voluntarily de‐
cided to do so. “Self assessment,” in my opinion, is
synonymous with “voluntary assessment” (as found
in the Flora v. U.S. definition for “assessment” above)
100

Word: person
Context: “Every person liable for any tax imposed by this ti‐
tle, or for the collection thereof, shall keep such re‐
cords, render such statements...,” —Portion of Sec.
6001, Chap. 61, IR Code
“Every person liable for any tax imposed by this ti‐
cords, render such statements...,” —Portion of Sec.
6001, Chap. 61, IR Code
Webster: 1) an individual human being, especially as dis‐
tinguished from a thing or lower animal; an indi‐
vidual man, woman or child. … 6) in law, any indi‐
vidual or incorporated group having certain legal
rights and responsibilities.
Black’s Law: In general usage, a human being (i.e., natural per‐
son), though by statute term may include a firm, la‐
bor organizations, partnerships, associations, corpo‐
rations, legal representatives, trustees, trustees in
bankruptcy, or receivers.
IR Code: (1): Definition found in Chapter 79.— Definitions*
Sec. 7701(a)(1) Person. The term “person” shall be
construed to mean and include an individual, a trust,
estate, partnership, association, company or corpora‐
tion. [NOTE: Chapter 61 of the IR Code contains sec‐
tions 6001 and 6011, in which context the word “per‐
son” is found. Definitions for certain words in each
chapter are usually found within the chapter. The
word “person” is not defined in Chapter 61; thus
Chapter 79’s definition holds. ]
(2): Definition found in Chapter 75.
Sec. 7343. Definition of term “person.” The term
“person” as used in this chapter includes an officer
or employee of a corporation, or a member or em‐
ployee of a partnership, who as such officer, em‐
101

ployee, or member is under a duty to perform the act
in respect of which the violation occurs.
Comment: (1): In my opinion, the term “person” as used in
Sec. 6001 means all of the entities listed in the defini‐
tion of Sec. 7701(a)(1). The definition or answer you
specifically seek, however, depends on your “status,”
i.e., the descriptive title of who you are (nature, pur‐
pose and function being major characteristics of who
you are). For the sake of rendering you an answer,
albeit hypothetical, I say that you are an “individual”
based solely on my brief assumption that you are a
“live, breathing, human being” and because you
signed your name on a letter without having “Presi‐
dent” or “Inc.” after your name!
(2): In my opinion, the meaning of the term “per‐
son” as used in Sec. 7203 is limited to the legal defini‐
tion set forth in Sec. 7343 (see above) for two reasons.
First, there is no other definition for the term in
Chapter 75. and second, within Sec. 7343 itself, the
term “person” is construed to be limited to mean
only an officer or employee of a corporation (etc.) by
the use of the word “includes” preceding “officer or
employee.” In this context, the word “includes” by
definition from Black’s Law, means to “confine
within, contain,” thus restricting the meaning to only
that which is stated in the definition of the term.
Word: liable
Context: “Every person liable for any tax imposed by this ti‐
cords, render such statements, make such returns,
and comply with such rules and regulations as the
Secretary from time to time prescribe....” —Portion of
Sec. 6001, Chap. 61, IR Code
Webster: 1) legally bound; answerable; responsible.
102

Black’s Law: Bound or obliged in law or equity; responsible;
chargeable; answerable; compellable to make satis‐
faction, compensation or restitution.
Comment: In my opinion, the word “liable” means “respon‐
sible” and “bound by law.” This sentence points out
that if a person is “liable,” and the IR Code section
designates said person as “liable” (bound by law),
then he must do those things, i.e., keep such records,
make such returns, etc., as set forth in Sec. 6001.
Without careful scrutiny, an individual could be‐
lieve that the word “liable” means “to owe (some‐
thing)” and that he must “pay (something)”—i.e., a
tax or fine. The code section does not discuss the
payment of taxes; rather it serves to give the reader a
clue as to what he must do if he determines he is the
“person liable.”
Word: made liable
Context: “(a) General Rule. When required by regulations
prescribed by the Secretary, any person made liable
for any tax imposed by this title, or for the collection
thereof, shall make a return or statement according
to the forms and regulations prescribed by the Secre‐
tary....” —Portion of Sec. 6011, Chap. 61, IR Code
Comment: In my opinion, the phrase “made liable” means, as
does the above term “liable,” that somewhere in the
IR Code there may be a code section that binds you
by law (making you “responsible”) to do some or all
of the acts set forth in this Sec. 6011. Like Sec. 6001,
103

there is no discussion of payment of taxes, so we
know that the phrase does not imply that one is re‐
sponsible for payment of taxes.
However, this phrase could also imply that there is
more than one way that a person could be “made li‐
able” for any tax imposed, but no explanation is pre‐
sented in this section. For example, a “voluntary as‐
sessment” or “self assessment” (words previously
defined) by the individual could be tantamount to
him becoming liable, i.e., being “made liable” by his
own action. At this point, I must defer this discussion
of the ways or means by which persons are “made li‐
able” as the legal aspects of this subject can be more
fully and appropriately advised you by an attorney
or tax professional.
Word: person liable
Context: “(a) General Rule. When required by regulations
prescribed by the Secretary any person made liable
for any tax imposed by this title, or for the collection
thereof, shall make a return or statement according
to the forms and regulations prescribed by the Secre‐
tary....” —Portion of Sec. 6011, Chap. 61, IR Code
Comment: In my opinion, Sec. 6001 does not state that you are
a “person liable.” It is non‐specific. The phrase,
“Every person liable...” does not specify that you are
the individual that is “liable” or that you belong to a
category or group of “person(s) liable.” Rather the
section implies that you have to look elsewhere in
the “title” (Code) in order to find where you are
104

“bound by law”—specifically described as the “per‐
son liable” to collect taxes (if you are an employer),
keep records, render statements, make returns, and
comply with certain rules and regulations.
Further, in my opinion Sec. 6011 does not state that
you are the person “made liable.” It is non‐specific.
The section implies that you have to look elsewhere
in the code to see whether or not you are “made li‐
able” by law.
Word: tax liability
Context: Note: There is no definition of this term from any
source. Therefore, we will look to the definition of
“liability.”
Webster: 1) the state of being liable. 2) anything for which a
person is liable. 3) a debt.
Black’s Law: All character of debts and obligations (cite omit‐
ted).
Comment: In my opinion, the term “tax liability” means a “tax
debt,” for example, a specific dollar amount that is
due and owing to the IRS
“Liable for a Tax Imposed” vs. “Tax Liability”
First, let me briefly explain the term “tax imposed.” To impose
something means “to place upon.” More specifically, it means “to place a
burden (tax) upon something.” Thus being “liable for a tax imposed”
means being “responsible for or bound by law” for a tax that has been
placed upon some item. Note that the person liable is distinct from (not
the same as) the item upon which the tax was placed. Also, be advised
that the word “tax” as used in Sections 6001 and 6011 is used in a generic
sense—that is, for whatever type of tax is being imposed (i.e., alcohol tax,
income tax, etc.), and does not represent a dollar amount of tax.
“Tax liability,” as stated in my opinion immediately above, means a
tax “debt”—an amount owed. There is obviously a substantial difference
105
between the two terms. Another way to describe the difference between
the two is that it is possible to be a “person liable” for a type of tax and
have no “tax liability” (debt) at all. But it is impossible to have a “tax li‐
ability” if one is not a “person liable” for that type of tax. In other words,
only a person “liable” or “made liable” can possibly have a “tax liabil‐
ity.”
Conclusion
In summary and conclusion, all of the above‐listed definitions from
the three authoritative sources are those that I deemed most relevant and
appropriate, given the context of the subject words and phrases.
For those words and phrases contained in various Internal Revenue
Code sections, heaviest reliance as to the meaning (my opinion) was
given to the definition contained in the Code due to the legal nature of
the subject words in their specific contexts.
You have noted in this opinion that words such as “must,” “shall”
and “person” actually differ radically in meaning, depending on their
context. Meanings differ between Webster’s and Black’s Law Dictionary for
some, and Black’s Law even presented opposite meanings for some of the
words, depending on context and if used in a “legal” sense.
Further, with respect to the word “person,” no definition exists in
Chapter 61 (the chapter in the IR Code that contains Sections 6001 and
6011, in which “person” is found). I was obliged instead to go to a more
general definition found in Chapter 79. Yet, the definition of “person” as
used in section 7203 is found in Chapter 75 of the Code, upon which I
based my opinion.
For accuracy in meaning relative to context and subject matter, the
definitions used for the subject words found in the IR Code were taken,
when existing, only from within the same Chapter in which they reside.
Note, also, how the definition of “person” differs radically between
Chapter 75 and Chapter 79. Again, if one is not careful in researching
these legal definitions, serious mistakes can occur, resulting in serious
misunderstanding.
Another interesting fact is that the Internal Revenue Code, the pri‐
mary authority on tax law, does not contain the definition of many im‐
portant words and phrases. For example, the terms “voluntary compli‐
106
ance,” “self assessment” and “tax liability” (to name a few) are not de‐
fined. Many IRS publications over the years, including the mission of the
IRS, describe the tax system as one of “voluntary compliance,” yet no
where in the IR Code does any section define or explain the meaning of
this very important term.
This lack of adequate definitions, coupled with inconsistencies in
meanings and imparted to the public in language that is less than clear,
contributes to the public’s resulting confusion and misunderstanding of
IRS publications, notices and Code sections. One could conclude that it is
not the intention of the IRS to clarify the meanings of the Code.
In any event, as it is Congress that writes these laws, I suggest you
contact your Congressmen and inform them of those IR Code sections
which you feel are vague and confusing. Ask your Congressman to ex‐
plain the meaning and intent of each section. Further, ask if the sections
really convey such meaning and intent. You can help your Congressman
by pinpointing the source of your confusion.
Indeed, confusion about tax matters continues to run rampant, even
among tax professionals. This unfortunate situation actually worsens
with every “tax reform.” I have noticed that “uncertainty” as to how to
advise clients is the “watchword” among professionals today. As laws
become more complicated, people become more confused. Confusion
breeds chaos, and we are rapidly approaching chaos in our society. But
this trend can be corrected. Do not give up. Continue to work with the
system and try to help correct and improve it.
I cannot encourage you enough to seek professional advice from
knowledgeable and trustworthy attorneys and tax professionals who can
fully apprise you of the legal aspects and ramifications of those relevant
portions of IRS literature and tax laws. In any event, I sincerely hope
your understanding of the items for which you sought my opinion has
been greatly enhanced. If you need further clarification on any item,
please feel free to contact me by email at [email protected].

107
On the Definition of Income
T
he definition of income is a significant part of understanding the
basis on which we can be taxed. We will turn to an examination of
part of our federal tax laws. 26 USC §61 (a) reads:
Section 61 (a) GENERAL DEFINITION.—Except as

otherwise provided in this subtitle, gross income means
all income from whatever source derived, including (but
not limited to) the following items:
(1) Compensation for service, including fees, commissions,
and similar items.
(2) Gross income derived from business;
(3) Gains derived from dealings in property;
(4) Interest;
(5) Rents;
(6) Royalties;
(7) Dividends;
(8) Alimony and separate maintenance payments;
(9) Annuities;
(10) Income from life insurance and endowment contracts;
(11) Pensions;
(12) Income from discharge of indebtedness;
(13) Distributive share of partnership gross income;
(14) Income in respect of a decedent; and
(15) Income from an interest in an estate or trust.
26 USC §61 and Grammar
By the structure of the above sentence, it is indicated that the tax is
on “all income from whatever source derived.” The word “source” is the
object of the preposition “from.” The correct construction of the above
clearly indicates that the taxes are not to be levied and collected on the
“source.” Source is not to be equated with income as these terms are
used in the above citation.
108
On the Definition of Income
The phrase “including (but not limited to) the following items” has
been misinterpreted to be a phrase modifying the word “income “ not
the word “source” in its sentence. The rules of English composition gov‐
ern the noun which is modified; these rules are discussed below.
Participles are verbal adjectives which modify nouns. The word “in‐
cluding” is a participle. The verb “include” was converted to a participle
by adding the suffix “‐ing” for the purpose of describing a noun. The use
of the word “including” in Section 61 (a) creates a participle phrase.
There are two types of participle phrases: restrictive and non‐
restrictive. The restrictive phrase appears following the noun it modifies
without commas. A restrictive phrase is an inextricable part of the sen‐
tence because there are no commas. The non‐restrictive phrase can be in‐
serted or hooked on to the sentence and is separated by commas. It is
parenthetical; it contributes to but does not change the meaning of the
basic sentence. The non‐restrictive phrase can be eliminated without
changing the basic sentence; that is the purpose of setting it apart with
commas.
In examining the opening sentence of Section 61 (a), the preceding
noun of the participle phrase—“including (but not limited to) the follow‐
ing items”—is the word “source.” Adjectives always modify the noun
immediately preceding when the word or phrase is placed with inter‐
vening commas. Restating the entire sentence by the accepted rules of
English composition, it says: “Gross income means all income from
whatever source, including (but not limited to) the following items de‐
rived…”
By changing the modifier “including (but not limited to) the follow‐
ing items,” the taxing agencies have sought to increase revenues by tax‐
ing the source listed (1)‐(15), supra. The clear language of section 61 (a)
supra, places a tax only on the income derived from the listed sources,
not the sources themselves. I suspect that similar violations of the rules
of English composition have, in fact, created new law contrary to the ex‐
press intent of Congress as written in this example of the Internal Reve‐
nue Code.
Furthermore, the Sixteenth Amendment to the Constitution of the
United States of America states as follows:
109
The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportion‐
ment among the several States, and without regard to any cen‐
sus or enumeration.
The language of the Sixteenth Amendment is clear in the English
sentence construction. English or language mechanics is something that
even the IRS and the U.S. Attorneys cannot change. You will see that the
source of your livelihood is not the intended object of taxation. The tax is
on income only. The source of that income is not the subject of that taxa‐
tion. Let us take a similarly professional look also at the Sixteenth
Amendment.
The Sixteenth Amendment and Grammar
By its structure, the Sixteenth Amendment indicates that the tax is
on “incomes,” from whatever “source” derived. In this instance, the
word “incomes” is the object of the preposition “on.” The word “source”
is the object of the preposition “from.” In no way can this be construed to
make the “source” the object of the preposition “on.” The introduction of
the comma to separate the two prepositional phrases further widens the
gap between the meanings of the objects, “incomes” and “source.” In so
stating, with the use of “on” in one instance and “from” in the other in‐
stance, it negates any confusion that might lead one to believe that the
tax would be levied and collected on the “source.” The “source” is not to
be equated with “ income” as these terms are used in the Sixteenth
Amendment.
Therefore, it can only be assumed from the above discussion that
IRC Section 61(a) lists sources of income; and the Sixteenth Amendment
itself has authorized a tax only on income, but not on the sources of in‐
come. Because compensation for services, including fees, commissions,
and similar items are defined by 26 USC 61(a)(1) as a “source” of income,
the Sixteenth Amendment and the Internal Revenue Code have not au‐
thorized a tax on compensation for services or any of the other sources
listed under 26 USC 61(a).
110

On the Liability for Tax
I
want to inform you that I am not an attorney but I am an experi‐
enced paralegal with over twelve years of experience in litigating
with the IRS. I also have a Master of Arts in Communication and I
have been writing letters on the syntax of the Internal Revenue Code for
five years. I currently have six published wins on my own case in the
Tenth Circuit Court of Appeals against the IRS. The cases are as follows:
1. Church of World Peace, Inc. v. IRS, 715 F.2d 492.
2. United States v. Church of World Peace, 775 F.2d 265.
3. Conklin v. United States, 812 F.2d 1318.
4. United States v. Church of World Peace, 878 F.2d 1281
5. Tavery v. United States, 897 F.2d 1032
6. Conklin v. C.I.R., 897 F2d 1027.
Back in the late 1970’s, I set up a home church, donated to it and
took a tax deduction. The IRS attacked me and I have been winning ever
since. Several years ago, I got back over $15,000 in a refund lawsuit.
I have discovered very interesting issues about the Income Tax and,
as I have stated elsewhere in this publication, for a number of years now
I have offered a reward of $50,000 to anyone who can show me the fol‐
lowing:
1. What statute makes me liable to pay an income tax?
2. How can I file a tax return without waiving my Fifth Amendment
Rights?
To date, no one has taken me up on the offer. Since I am not an at‐
torney, I suggest that you consult with an attorney and see if I am right.
If your attorney can prove me wrong, you can win the $50,000.
My opinion is that you are not liable to pay an income tax under Ti‐
tle 26, the Income Tax Code. The reason is that the Internal Revenue
Code (the “tax law”) does not contain a code section (statute/law) that
states such a requirement.
111
Furthermore, the filing of an income tax return is “voluntary.”
However, if you do not volunteer, the IRS can file a return for you under
26 USC 6020(B) and it can collect from you using a variety of procedures
which the courts will support. Therefore, it is important that individuals
who choose not to voluntarily waive their Fifth Amendment Rights by
filing 1040 Returns post a bond against any 6020(B) assessment if they
wish to avoid assessment difficulty in the future.
I can certainly appreciate your need for information on the subject
of federal income taxes, a subject that “naturally” fosters substantial con‐
fusion among the public. While your question appears simple and basic
enough, it mandates a course of analysis that takes us to the very source
of the tax law, an area that few professionals dare to tread as it takes
careful, orderly analysis. I believe I have succeeded in cutting through
the maze of confusion surrounding the tax laws to arrive at the correct
conclusion: Individuals are not required to file an income tax return
form 1040. Filing these returns is completely voluntary.
The key to “cutting through the maze” is knowing where to start
cutting. If someone handed you the 2,000‐ page Internal Revenue Code
and said, “Go find the code section that requires one to file a return,”
would you, as a layperson, know where to start looking? The Code con‐
tains over 10,000 code sections! Here’s how you start: You must follow
the directions in the Internal Revenue Service’s official publication to the
public known as Notice #609. This notice directs you to specific code sec‐
tions in the Internal Revenue Code on this matter.
Before we look at the Internal Revenue Code sections given us by
the IRS, let me acquaint you with the background to Notice #609. It is en‐
titled, “Privacy Act and Paperwork Reduction Act Notice.” The IRS is
required to send you this Notice #609 by the Privacy Act Law of 1974
(5USC 552a, Public Law 93‐574), which states in Sec. 5(e)(1):
Each agency that maintains a system of records shall…
(3) Inform each individual whom it asks to supply informa‐
tion…
(a) The authority which authorizes the solicitation of the in‐
formation and whether disclosure of such information is manda‐
tory or voluntary,
112
(b) The principle purpose or purposes for which the informa‐
tion is intended to be used,
(c) The routine uses which may be made of the information,
(d) The effects on him, if any, of not providing all or any part of
the requested information….
Based on the above requirements we can now look at the IRS’ No‐
tice #609 and go directly to the reference to its legal right to ask for in‐
formation, which states:
Our legal right to ask for information is Internal Revenue
Code sections 6001, 6011 and 6012 and their regulations. They
say that you must file a return or statement with us for any tax
you are liable for. (emphasis added)
In the second sentence, the IRS is in effect saying that if you are “li‐
able” (responsible) by statute for a particular kind of tax, you must then
file. Let’s take a look at the three code sections quoted above:
SEC. 6001. NOTICE OR REGULATIONS REQUIRING RE‐
CORDS, STATEMENTS, AND SPECIAL RETURNS.
Every person liable for any tax imposed by this title, or for
the collection thereof, shall keep such records, render such
statements, make such returns, and comply with such rules and
regulations as the Secretary may from time to time prescribe.
Whenever in the judgment of the Secretary it is necessary, he
may require any person, by notice served upon such person or
by regulations, to make such return, render such statements, or
keep such records, as the Secretary deems sufficient to show
whether or not such person is liable for tax under this title. The
only record which an employer shall be required to keep under
this section in connection with charged tips shall be charge re‐
ceipts and copies of statements furnished by employees under
section 6053(a).
SEC. 6011. GENERAL REQUIREMENT OF RETURN,
STATEMENT, OR LIST.
113
(a) General Rule. When required by regulations prescribed by
the Secretary any person made liable for any tax imposed by this
title, or for the collection thereof, shall make a return or state‐
ment according to the forms and regulations prescribed by the
Secretary. Every person required to make a return or statement
shall include therein the information required by such forms and
regulations.
SEC. 6012. PERSONS REQUIRED TO MAKE RETURNS OF
INCOME
(a) General Rule. Returns with respect to income taxes under
subtitle A shall be made by the following:
(1)(A) Every individual having for the taxable year gross in‐
come which equals or exceeds the exemption amount, except
that a return shall not be required of an individual.
Note that Sec. 6001 refers to “Every person liable for any tax im‐
posed by (the Code)” and Sec. 6011 refers to “any person made liable for
any tax imposed by (the Code).” Also note that neither of these two code
sections state who is liable (responsible) for submitting an income tax re‐
turn. Again, Notice #609 says that these code sections state “that you
must file a return or statement with us for any tax you are liable for.”
This means that before there can be a lawful requirement for you to file a
return, you must be found to be liable or responsible as the individual
designated to complete the return for the particular type of tax the IRS is
attempting to collect.
At this point, allow me to rephrase the question to assist you in fo‐
cusing on my answer and conclusion: Am I, as an individual, liable to
pay the income tax or responsible to file (by any Internal Revenue Code
statute) an individual income tax return form 1040?
The answer is “No,” based on the first two code sections (6001 and
6011) the IRS referred us to in its Notice #609. And from reading section
6012, the answer is still “no” as the word “liable” is not even mentioned
there. I will comment more on 6012 later.
The emphasis, for the moment, is on sections 6001 and 6011 and
whether or not an individual is “liable” or “made liable.” Both sections
114
refer to a person being “liable for any tax imposed by this title.” Obvi‐
ously, these sections are directing you to go elsewhere in the Internal
Revenue Code (Title 26) to find a “tax imposed” and a code section de‐
scribing who is “liable” for the tax imposed.
Thus we go to another part of the Code, “Subtitle A, Income Taxes,
Chapter 1, Part I—Tax Imposed on Individuals.” In sections 1(a) through
1(d), taxes are imposed on “taxable income” of various individuals, e.g.,
married, single, etc., but there is no mention of the individuals being “li‐
able” or responsible to file in these sections or any other subsequent code
sections in all of Subtitle A, “Income Taxes.”
The conclusion, then, is that there is no code section that makes one
liable in Subtitle A, Income Taxes, or in Subtitle F, code sections 6001,
6011 and 6012. By the way, Subtitle F is entitled, “Procedure and Ad‐
ministration,” which infers that “procedurally” there is a sequence of
steps that the IRS must follow in its tax collection “administration”—i.e.,
it must first show the individual to be “liable” or “made liable” (as set
forth in sections 6001 and 6011) before the individual can be shown to
have a “tax liability” (some undetermined amount based on “gross in‐
come” as set forth in Section 6012).
In other words, Section 6012 comes into play as the second adminis‐
trative step by the IRS only after it has satisfied the first step. Section 6012
begins a series of steps involved in the calculation of one’s “tax liability.”
Said another way, you cannot have a tax liability and be required to pay
a tax if you have not first been found to be “liable.” And to emphasize
the obvious, there is no way Section 6012 can make you “liable” for the
tax.
Therefore, the IRS is “stopped dead in its administrative tracks” at
the first step and cannot legally enforce assessment and collection of any
individual income tax at all on a Form 1040. The first sentence of section
6012 confirms this because it refers to “income taxes under Subtitle A.”
And since no one is made liable under Subtitle A for the filing of income
tax returns, section 6012 becomes immediately and entirely irrelevant as
a “second administrative step.”
What I have just conveyed to you is not theory—it is fact. The ad‐
ministrative procedure set forth by the Privacy Act Notice is the same for
the other types of tax found in the code because there are code sections
115
that determine and describe who is liable to file and pay the tax. Here are
some examples:
Section 4401
Sec. 4401(a) imposes a tax on wagers (gambling bets) and Sec.
4401(c) sets the requirement for who shall be liable for the tax; that is,
who shall pay the tax. Sec. 4401(a) states:
Each person who is engaged in the business of accepting
wagers shall be liable for and shall pay the tax under this sub‐
chapter….
Other sections of the Code specifically impose a tax, and then distinctly
specify who is liable to pay the tax:
¾ Sec. 4261(a) imposes a tax.
¾ Sec. 4261(d) specifies who is liable to pay it.
¾ Sec. 4611(d)(1)(2)(3) specifies three separate persons who are li‐
able to pay it.
¾ Sec. 4971(a) imposes a tax and specifies who is liable to pay it.
¾ Sec. 4986(b) specifies who is liable to pay it.
¾ Sec. 5005(a) specifies who is liable to pay it.
From this foundation, we can compare the sections in Subchapter A,
Income Taxes:
Sec. 1(a) There is hereby imposed on the taxable income of
every married individual who makes a single return jointly
with his spouse under Sec. 6013, and every surviving spouse, a
tax….
Sec. 1(b) There is hereby imposed on the taxable income of
every individual who is the head of a household… a tax….
116
Sec. 1(c): There is hereby imposed on the taxable income of
every married individual who does not make a single return
jointly… a tax….
Again, as you can see, the tax imposed in each of the above sections
is on “taxable income” a technical, legal term and not specifically on any
individual. No specific section can be found that specifies who is liable
for each of these income tax sections. But it is obvious that there are quite
a number of individuals that are liable to file returns for various taxes in
the code. These individuals are known as “taxpayers.” This term has a
special and technical definition in the Code:
Sec. 1313(b) defines “taxpayer” this way: “Notwithstanding Sec.
7701(a)(14), the term ‘taxpayer’ means any person subject to a tax under
the applicable revenue law.” Sec. 7701(a)(14) says “the term ‘taxpayer’
means any person subject to any internal revenue tax.”
Essentially, in order for an individual to be a “taxpayer,” he would
have had to become liable (pursuant to 6001 and 6011) from some section
of the Code other than Section 1. But there are no such sections.
What I am saying here is that an individual becomes a “taxpayer”
(subject to the tax laws) the instant he becomes “liable” to file the return.
Until that point in time, the individual remains “exempt from taxation.”
As the Supreme Court said, the language of the taxing statutes must be
clear and cannot be enlarged by implication:
Keeping in mind the well settled rule that the citizen is ex‐
empt from taxation unless the same is imposed by clear and
unequivocable language, and that where the construction of a
tax law is doubtful, the doubt is to be resolved in favor of those
upon whom the tax is sought to be laid…. Spreckles Sugar Re‐
fining Co. v. McClain, 192 U.S. 397 at 416; 24 S.Ct. at 382 (1904);
48 L. Ed. 496.
and
In the interpretation of statutes levying taxes it is the estab‐
lished rule not to extend their provisions, by implication, be‐
yond the clear import of the language used, are to enlarge their
operations so as to embrace matters not specifically pointed
117
out. In case of doubt they are construed most strongly against
the Government and in favor of the citizen. —Gould v. Gould,
245 U.S. 151, 153 (1917); 38 S.Ct. 53; 62 L.Ed. 211.
As you might agree, the taxing statutes given us by the IRS in its
Privacy Act Notice are as “clear as mud” to the average layperson read‐
ing it for the first time, not knowing how to analyze and focus on the es‐
sential aspects. But with my step‐by‐step analysis thus far, we have ac‐
complished “major surgery” in cutting through the IRS maze of confu‐
sion with respect to whether or not individuals are “liable” or “responsi‐
ble” to make tax returns.
It has become obvious that for most individuals, Code Section 6012
is not relevant. It is merely a “red herring”—a distraction—that the IRS
threw in to heighten the maze of confusion which it constructed. The IRS
threw in section 6012 in October, 1986, and for all the years prior to 1986,
its Privacy Act Notice only consisted of section 6001 and 6011 which re‐
fers, of course, to the primary issue of whether one is “liable” to make
the return.
You can see the importance of understanding the meaning of the
term “liable,” and how it is a critical element in the IRS’ taxing proce‐
dure. You can see how it is a false premise to believe that one automati‐
cally becomes “liable” because he made income. To prove this fallacy, let
us look at the Gift Tax.
The donor or giver of the monetary gift is liable for the tax, not the
recipient. Section 2502(c) verifies this. In other words, it does not matter
if you made a ton of “income. You are not liable because the code does
not make you liable, therefore, you are not required to do anything. That
is, you are not required to “make returns, keep records, or make state‐
ments” to or for the IRS.
I have pointed out and explained the basic fact that you are not li‐
able by statute. There is, however, another way that you can be “made
liable” (as referred to in section 6011). You can volunteer. You can, by
your actions, consent to be liable (responsible) for both the tax return and
the tax liability. How do you volunteer to become liable? Simple: just
sign your name on a government form known as a 1040 Individual In‐
118
come tax return.
In one fell swoop of your own pen, you have just been “made li‐
able” (as it says in section 6011 of the code) and you now take on the dis‐
tinguished status and title of “taxpayer.” As a “taxpayer,” guess what
the IRS has in store for you, what with its myriad of statutory penalties
and impositions? Remember the definition of “taxpayer?” You are “sub‐
ject to”—perhaps “subjected to” would be more apropos—paying a tax.
The Appeals Court said it clearly as a principle of law:
When one files a tax return showing taxes due, he has, pre‐
sumably, assessed himself and is content to become liable for
the tax, and to pay it either when it is due according to statute,
or when he can get the money together. Lyddon & Company v.
U.S., 158 F.Supp. 951, at 953
This cite also refers to the principle of “self‐assessment,” which
simply means that you want to make the job of the IRS in collecting taxes
much easier by doing all the paperwork and calculations by yourself.
Since you now know there is no absolutely no Internal Revenue Code
Section that requires you to file a return, then filing is obviously a volun‐
tary act. The fact that filing a return is voluntary is easily verified by
reading the various statements of IRS Commissioners over the years and
the Mission statement of the IRS itself, which was entered into law (The
Federal Register) in March of 1974. Just a few of these statements follow:
Each year American taxpayers voluntarily file their tax re‐
turns and make a special effort to pay the taxes they owe.
—Johnnie M. Walters, IRS Commissioner (1971 Internal Reve‐
nue 1040 Booklet)
Our tax system is based on individual self assessment and
voluntary compliance. —Mortimer Caplin, IRS Commissioner
(1975 Internal Revenue Audit Manual)
The mission of the Service is to encourage and achieve the
highest possible degree of voluntary compliance. —Donald C.
Alexander, IRS Commissioner (Federal Register, March, 1974)
The IRS’s primary task is to collect taxes under a voluntary
119
compliance system. —Jerome Kurtz, IRS Commissioner (1980

Internal Revenue Annual Report)
We have a voluntary compliance system. —Fred Goldberg,
IRS Commissioner (Ted Koppel show, ABC news, April 13,
1990)
And, from the highest authority, the United States Supreme Court:
Our system of taxation is based upon voluntary assessment
and payment, not upon distraint. —Flora v. U.S., 362 U.S. 145,
176 (1959)
This principle of law, i.e., that our tax system is based upon volun‐
tary assessment, has been emphasized and relied upon in subsequent
appellate court cases also. The reason that the courts and the IRS advise
that it is voluntary, is that if it were mandatory, there would be a viola‐
tion of your rights under the Bill of Rights—i.e., under the First, Fourth
and Fifth Amendments.
The First Amendment involves your freedom to speak to your gov‐
ernment. It also includes your right not to speak to your government (on
a Form 1040). Forcing you to speak on a 1040 would violate your First
Amendment rights.
The Fourth Amendment is your right to privacy—your right to be
secure in your person and papers. Compelling you to produce your per‐
sonal financial information and records, etc., without a lawful court or‐
der would violate your Fourth Amendment rights.
The Fifth Amendment states that “No person… shall be compelled
in any criminal case to be a witness against himself.” This simply means
that you cannot be compelled to give information (on a Form 1040) be‐
cause that act is equivalent to being a witness against yourself. The IRS
can take any information you provide and turn around and use it against
you under any circumstances, both civilly and criminally. In an instant,
the IRS can have you under criminal investigation and potential indict‐
ment. Therefore, compelling you to give information (evidence) against
yourself would violate your Fifth Amendment rights.
Code sections 6103(h) and (j) says that tax returns and return infor‐
mation may be given to the U.S. Attorney and Justice Department for
120
criminal prosecution. In fact, even the IRS Privacy Act Notice so states:
We may give the information to the Department of Justice
and to other Federal agencies, as provided by law.
Obviously, this is a warning to you, almost like a “Miranda Warn‐
ing.” If you choose to disregard the warning and waive your right to re‐
main silent and your right to privacy, understand that it is your choice
alone.
Now you know why “our system of taxation is based on voluntary
assessment and payment.” You also know why you were never made
“liable” by the code in the first place. By making you liable, the IRS
would have created a full requirement for you to submit information on
the 1040, thereby compelling you to be a witness against yourself in di‐
rect violation of your rights.
You can see now that it is essential that you know and understand
your Constitutional rights. Integral to your own “research” on the in‐
come tax is that you obtain a copy of the United States Constitution and
study not only the entire Bill of Rights but also the relevant Articles on
taxation. In this opinion letter I have covered what I believe to be the es‐
sential elements of the requirements of the income tax system. They are
relatively simple, as you have seen, once analyzed and broken down to
the elements.
Again, we started (and ended) with the IRS Privacy Act Notice to
you whereby the IRS “tries” to comply with the requirements of the Pri‐
vacy Act Law of 1974. Its efficiency in doing so leaves a lot to be desired
as IRS Notice #609 falls short, particularly in telling you plainly whether
you are “liable” or not, i.e., whether you were required to give the re‐
quested information or not. For those who even take the time to read this
important IRS notice, it is confusing and misleading, at best. The clearest
aspect of the notice is when it tells you that the IRS can give the informa‐
tion to the Department of Justice and to other federal agencies.
I would like to again point out that on the whole, our system of tax
laws is deplorably confusing to everyone, even to the IRS. A recent poll,
whose results were nationally publicized, showed that IRS agents were
incorrect 39% of the time in answers to fairly simple questions posed by
citizens. Equally unfortunate is the fact that the professional community
121
is confounded by the code and the various tax reform acts heaped upon
them.
This problem was apparent a decade ago when the Chief Justice of
the Supreme Court of West Virginia, Richard Neely, commented on taxes
in his book How Courts Govern America. He said,
In 1978, I attended a seminar on federal estate and gift tax
sponsored by the American Law Institute, where the Internal
Revenue Service lawyers responsible for this area frankly con‐
fessed that they did not understand the Tax Reform Act of
1976... Not only did they not understand the law, they opined
that the Congress which wrote it did not understand it and that
the courts would seem to understand it only because the courts
make it up as they went along and pretend to understand it.
Also, during the Nixon Administration, Johnnie M. Walters, IRS
Commissioner at that time, made a pitch for simplicity. Walters said,
I do not care whether it is a flat tax, a value‐added tax, or a
consumption tax, the complexities and perceptions of our pre‐
sent system are causing larger numbers to wander off the res‐
ervation. We cannot afford that.
The tax laws were complicated then, as they are now. There has
never been such a thing as tax “reform!”
So what is the government’s posture today, after having admitted
that the income tax system is voluntary? The government is desperate,
based on remarks such as that from Roger M. Olsen, Assistant Attorney
General, Tax Division, Department of Justice, where he said to a group of
professionals, “We encourage voluntary compliance by scaring the heck
out of you.” Olsen, in so many words, is not only admitting that the sys‐
tem is voluntary, he is admitting that the tax system today can only
“work” if the IRS uses Gestapo tactics against the American people.
President Reagan himself spoke out in a speech in May of 1985
when he said, “The current (tax) system just doesn’t work anymore.” He
further said, “Our federal tax system is, in short, utterly impossible, ut‐
terly unjust and completely counter‐productive.” He went on to infer
that the “system itself is a cheat.”
122
IRS Commissioner Roscoe Egger (1984), also expressed this truth

when he said in Nov. of 1984,
Any tax practitioner, any tax administrator, any taxpayer
who has worked with the Internal Revenue Code knows that it
is probably the biggest ‘mishmash’ of statutes imaginable.
Congress, various Administrations and all the special interest
groups have tinkered with it over the years, and now a huge
assortment of special interest and pet economic theories have
been woven into the great hodge‐podge that is today’s Internal
Revenue Code.
Members of Congress are cheating the middle‐income citizens and
placing the tax burden upon them. The United States Supreme Court hit
the nail on the head as long ago as 1874, in the case of Loan Association
v. Topeka:
To lay with one hand the power of the government on the
property of the citizen, and with the other to bestow it on fa‐
vored individuals... is none the less robbery because it is done
under the forms of law and is called taxation.
This unfairness has reached epidemic proportions. Special interest
groups are still being catered to. Recently, a top Philadelphia newspaper
ran a feature story exposing how certain Congressmen, through their
tax‐bill writing committees, offered tens of billions of dollars in tax dollar
savings to the rich and powerful. Secret exemptions included in a “tax
shelter investment” bill resulted in a $47 million break for friends of
George Bush and George Shultz!
Briefly, the story goes like this: A 562 foot passenger liner was
bought in 1980 and was turned into a state of the art ship at a cost of $47
million. It was offered to a group of wealthy investors as a “tax shelter
investment” and operated at an artificial loss—for tax purposes—of $436
million in ‘84 and ‘85. When the tax reform act of ‘86 made major
changes (amendments) in the laws detrimental to artificial losses, this
“elite” group needed “help.” An amendment was provided and it can be
found in the 925‐page Tax Reform Act as follows:
The amendment made by section 201 shall not apply to a
123
562 foot passenger cruise ship, which was purchased in 1980
for the purpose of returning the vessel to the United States ser‐
vice, the approximate cost of refurbishment of which is ap‐
proximately $47 million.
The beneficiaries of this huge tax break are none other than the
Bechtel family, who just happens be the former employers of George
Shultz! I could go on with other detailed examples of “criminal” activity
practiced daily by our elected public servants in Congress, but I do not
want to digress too far from the primary issues in this letter.
The reason I am enlightening you with news of Congressional and
IRS scams is because you need to be aware of the “larger picture,” par‐
ticularly if all of what I have said is totally new to you. By being knowl‐
edgeable, you are in a better position to help correct some of the prob‐
lems and wrongdoing that are being perpetrated in America today. The
solutions have to do with how you exercise your God‐given rights on a
private and public basis.
I have discussed subjects that are “controversial.” Be aware that cer‐
tain ignorant bureaucrats—the IRS, for example—may not always treat
you kindly, particularly if you decide not to file tax returns or volunteer
for audits. But do not allow yourself to be intimidated by any bureaucrat
at anytime. Knowledge of the law breeds confidence, and confidently ex‐
ercising your Constitutional rights is essential to maintaining your free‐
dom and protection against bureaucrats who violate due process of law.
If you are contemplating a “non‐filer” position, please exercise “due
diligence.” Seek a number of professional opinions and continue your
research in good faith as there is always new information to strengthen
your foundation of knowledge. Be sure that the advice you receive is
sound and credible. Do not, for example, settle for verbal, off‐the‐cuff
remarks. If a professional is not willing to put his advice in writing and
substantiate it with sound, detailed legal analysis, steer clear of him.
Any advice he could give you would tend to be unreliable.
As a final point, even the IRS will not claim responsibility for its ad‐
vice to you on the Code, especially when the IRS agents are dead wrong.
President Reagan attested to this when he said in a 1984 Associated Press
(AP) release:
124
The government has the nerve to tell the people of the
country, ‘You figure out how much you owe us—and we can’t
help you because our people don’t understand it either (the
Code)—and if you make a mistake, we’ll make you pay a pen‐
alty for making the mistake.
And to further ensconce itself in its “ivory tower,” the IRS came up with
Publication 17, which states:
The publication covers some subjects on which certain
courts have taken positions more favorable to the taxpayers
than the official position of the Service. Until these interpreta‐
tions are resolved by higher court decisions, or otherwise, the
publication will continue to present the viewpoint of the Ser‐
vice.
The above is a disclaimer and it is also a tacit admission that IRS publica‐
tions do not necessarily present the law, but only the law as the IRS
wants you to understand it.
The final twist in the IRS maze comes in IRS Publication 21, where
the IRS essentially tells you that you must decide whether you are re‐
quired to file or not. Ultimately, the decision of whether to file tax re‐
turns is truly your responsibility.
In this section, as an expert in communications and interpretation of
the English language, I have given you my opinion that you are not li‐
able for the Federal Income Tax by statute and you are not required to
waive your Fifth Amendment Rights on a 1040 Return, and I have sub‐
stantiated my suggestions so that you may fully rely on it and utilize it
as a springboard to further your knowledge and research in this area.
Since I am not an attorney, but a paralegal, I must tell you to seek
legal counsel from a licensed attorney on the above issues. I must also in‐
form you that even though there is no statute that makes individuals li‐
able to pay an income tax and since a requirement to file returns would
have serious Fifth Amendment contradictions, the IRS will continue
through double‐speak and brute force to enforce the concept that indi‐
viduals are “required” to voluntarily waive their Constitutional Rights
and assesses themselves.
125
Remember also that individuals who do not file may be subject to
criminal and civil penalties in spite of the above argument if the IRS
claims that they owe substantial taxes. For this reason, I suggest that if
you are an employee, you should allow the employer to send withhold‐
ing to the IRS on your behalf and if you are an independent contractor,
working on a 1099, I suggest that you post a bond against any assess‐
ment that the IRS may make for you under 26 USC 6020B. If you wish to
contest issues with the IRS, you will then be in an offensive position in‐
stead of a defensive position.
If you find an attorney or anyone else that can prove I am wrong,
please let me know by sending an email to me at the following address:
[email protected].

126

U.S. v. Argomaniz
United States v. Argomaniz, 925 F.2d 1349, (11th Cir. 1991)
UNITED STATES of America and L. Simmons,
Revenue Officer, of Internal Revenue Service,
Plaintiffs‐Appellees,
v.
Alberto E. ARGOMANIZ,
Defendant‐Appellant.
No. 89‐5925.
United States Court of Appeals, Eleventh Circuit.
March 11, 1991.
David M. Garvin, Philip T. Weinstein, Weinstein & Garvin, Miami,
Fla., for defendant‐appellant.
Dexter W. Lehtinen, U.S. Atty., Lisa A. Hirsch, Asst. U.S. Atty., Mi‐
ami, Fla., Kevin M. Brown, Gary R. Allen, Chief, Charles E. Brookhart,
U.S. Dept. of Justice, Tax Div., Washington, D.C., for plaintiffs‐appellees.
Appeal from the United States District Court for the Southern Dis‐
trict of Florida.
Before CLARK and BIRCH, Circuit Judges, and HENDERSON, Sen‐
ior Circuit Judge.
BIRCH, Circuit Judge:
Appellant Alberto Argomaniz (Argomaniz) appeals from an order
of the United States District Court for the Southern District of Florida, di‐
recting him to comply with a summons issued by the Internal Revenue
Service (IRS). Compliance with this IRS summons could violate Argo‐
maniz’s fifth amendment privilege against self‐incrimination. According‐
ly, we REVERSE the district court’s order and REMAND for further pro‐
ceedings consistent with this opinion.
I. BACKGROUND
IRS records indicate that Argomaniz did not file income tax returns
for the years 1984 through 1987. Therefore, the IRS initiated an investiga‐
tion into Argomaniz’s tax liability for those years. As part of this investi‐
127
gation, the IRS issued an administrative summons, pursuant to 26 U.S.C.
Sec. 7602 (FN1),[1] directing Argomaniz to appear before IRS Officer
Simmons to give testimony and produce relevant records and docu‐
ments.[2] On June 20, 1988, the summons was served on Argomaniz. On
July 12, 1988 and again on October 13, 1988, Argomaniz appeared before
Simmons, in compliance with the summons, but refused to produce any
of the summonsed documents. He claimed that production of the docu‐
ments would violate his fifth amendment privilege against self‐
incrimination. Simmons then referred the matter to the United States At‐
torney for enforcement action. On February 21, 1989, the United States
filed a petition in the United States District Court for the Southern Dis‐
trict of Florida, pursuant to 26 U.S.C. Secs. 7402(b)[3] and 7604,[4] to en‐
force the summons. Attached to the petition was Simmons’ declaration,
stating that proper IRS summons procedure had been followed and that
the documents and information sought by the summons were necessary
to the IRS investigation and not otherwise available. The district court re‐
ferred the case to a magistrate, who ordered Argomaniz to show cause
why he should not be compelled to comply with the summons. On April
18, 1989, the show cause hearing was held. Argomaniz again raised his
fifth amendment privilege. After instructing Argomaniz that he could
raise his fifth amendment privilege on a question‐by‐question basis, the
magistrate entered an order directing Argomaniz to comply with the
summons. On April 28, 1989, Argomaniz appeared before Simmons and
again refused to answer any questions or produce any documents relat‐
ing to his tax liability for the years 1984 through 1987.[5] The United
States then filed a motion requesting that the magistrate enter a report
and recommendation. The magistrate complied and recommended that
the district court direct Argomaniz to respond to the summons. In an or‐
der entered on August 7, 1989, the district court adopted the magistrate’s
report and recommendation. Argomaniz was ordered to comply with the
summons within fifteen days. If he failed to do so, he would have twenty
days to show cause why he should not be held in contempt. On August
22, 1989, Argomaniz appealed to this court from the district court’s or‐
der, and filed a motion in the district court for a stay of enforcement of
the order. By order dated October 10, 1989, the district court granted Ar‐
gomaniz’s motion and stayed enforcement of the summons pending his
128
U.S. v. Argomaniz
appeal, indicating that Argomaniz had shown a reasonable fear of crimi‐
nal prosecution and that enforcement of the summons could force Ar‐
gomaniz to waive his fifth amendment privilege against self‐
incrimination.[6]
II. DISCUSSION
The fifth amendment privilege against self‐incrimination[7] “pro‐
tects a person ... against being incriminated by his own compelled testi‐
monial communications.” Fisher v. United States, 425 U.S. 391, 409, 96
S.Ct. 1569, 1580, 48 L.Ed.2d 39 (1976). It “can be asserted in any proceed‐
ing, civil or criminal, administrative or judicial, investigatory or adjudi‐
catory.” Kastigar v. United States, 406 U.S. 441, 445, 92 S.Ct. 1653, 1656,
32 L.Ed.2d 212 (1972). Accordingly, a taxpayer may invoke this privilege
in response to requests for information in an IRS investigation.
The taxpayer seeking the protection of this privilege to avoid com‐
pliance with an IRS summons “must provide more than mere specula‐
tive, generalized allegations of possible tax‐related prosecution.... [T]he
taxpayer must be faced with substantial and real hazards of self‐
incrimination.” United States v. Reis, 765 F.2d 1094, 1096 (11th Cir.1985)
(per curiam). Thus, the question before us is whether Argomaniz has
shown such a “substantial and real hazard of self‐incrimination” that the
fifth amendment will excuse his noncompliance with the IRS summons.
The answer to this question will depend on whether compliance with the
summons would provide information incriminating to Argomaniz, and,
if so, whether the privilege properly was invoked. See Grosso v. United
States, 390 U.S. 62, 65, 88 S.Ct. 709, 712, 19 L.Ed.2d 906 (1968).
A. Compliance With The IRS Summons Could Be Incriminating
“The central standard for the ... application [of the fifth amendment
privilege against self‐incrimination is] whether the claimant is con‐
fronted by substantial and ‘real’, and not merely trifling or imaginary,
hazards of incrimination.” Marchetti v. United States, 390 U.S. 39, 53, 88
S.Ct. 697, 705, 19 L.Ed.2d 889 (1968). The privilege applies only in “in‐
stances where the witness has reasonable cause to apprehend danger” of
criminal liability. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct.
814, 818, 95 L.Ed. 1118 (1951). The government claims that because the
129
IRS investigation was of a civil nature (its alleged purpose was to deter‐
mine Argomaniz’s civil tax liability for the years 1984 through 1987), Ar‐
gomaniz’s fear of self‐incrimination is remote and speculative, and,
therefore, not sufficient to invoke the fifth amendment privilege. How‐
ever, the structure of the IRS, the nature of the summons procedure, and
the facts of this case compel the conclusion that the government’s posi‐
tion is incorrect. There can exist a legitimate fear of criminal prosecution
while an IRS investigation remains in the civil stage, before formal trans‐
fer to the criminal division.[8] See United States v. Sharp, 920 F.2d 1167,
1170 (4th Cir.1990) (The privilege against self‐incrimination “may apply
in the context of an IRS investigation into civil tax liability, given the rec‐
ognized potential that such investigations have for leading to criminal
prosecutions.”).
In United States v. LaSalle Nat’l Bank, 437 U.S. 298, 98 S.Ct. 2357, 57
L.Ed.2d 221 (1978), the Supreme Court examined the nature of the IRS
investigatory system, and, relying in part on the legislative history of the
Internal Revenue Code, concluded that the system’s “criminal and civil
elements are inherently intertwined.” Id. at 309, 98 S.Ct. at 2363. The IRS
summons procedure reflects the interrelationship of these components.
The IRS summons served on Argomaniz required that he produce all
documents and records related to income he received during the years
1984 through 1987.[9] If Argomaniz did produce these documents, as‐
suming that he did possess them, then both the civil and criminal aspects
of the IRS system would be implicated. The IRS would be able to deter‐
mine Argomaniz’s civil tax liability for the years in question. However,
although “[i]t is true that a ‘routine tax investigation’ may be initiated for
the purpose of a civil action rather than criminal prosecution[,] ... tax in‐
vestigations frequently lead to criminal prosecutions.” Mathis v. United
States, 391 U.S. 1, 4, 88 S.Ct. 1503, 1505, 20 L.Ed.2d 381 (1968) (holding
that even in routine tax investigations a person in custody, regardless of
the reason for his detention, must be given the warnings required by
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).
Thus, production of these documents and records, if incriminatory (as
will be determined by the in camera inspection directed below), also
likely would cause Argomaniz to incur criminal liability for violation of
the Internal Revenue Code.
130
U.S. v. Argomaniz
Section 7203 of the Internal Revenue Code[10] makes willful failure
to file an income tax return a crime. Accordingly, production of these
documents would establish two of the essential elements of this crime—
it would prove that Argomaniz did have taxable income for the years in
question, yet failed to file income tax returns. Under these circumstances,
this civil tax “investigation has become ‘an inquiry with dominant crimi‐
nal overtones’ ... [such that Argomaniz was] entitled to raise his fifth
amendment objections.” United States v. Roundtree, 420 F.2d 845, 852
(5th Cir.1969). The criminal penalties with which Argomaniz was faced
“were scarcely ‘remote possibilities out of the ordinary course of the law’
“ and his “hazards of incrimination can only be characterized as ‘real
and appreciable.’ “ Grosso v. United States, 390 U.S. 62, 66, 67, 88 S.Ct.
709, 713, 19 L.Ed.2d 906 (1968). See also United States v. Moss, No. 88‐
2676 (D.Md. July 24, 1990) (WESTLAW, 1990 WL 169256); United States
v. Cates, 686 F.Supp. 1185 (D.Md.1988). Therefore, Argomaniz’s appre‐
hension of criminal prosecution clearly was reasonable, assuming that
the records in his possession would be incriminatory under the circum‐
stances existing at the time of production.[11]
We stress, however, that it is the role of the district court, not the
taxpayer, to evaluate the taxpayer’s claim of incrimination and deter‐
mine whether it is reasonable. “The witness is not exonerated from an‐
swering merely because he declares that in so doing he would incrimi‐
nate himself—his say‐so does not of itself establish the hazard of in‐
crimination. It is for the court to say whether his silence is justified....”
Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed.
1118 (1951). See also Sharp, 920 F.2d at 1170 (“Whether there is sufficient
hazard of incrimination is of course a question for the courts asked to en‐
force the privilege.”).
In this case, the district court did opine that Argomaniz would have
a legitimate fear of criminal indictment if he complied with the IRS
summons. In its order granting Argomaniz’s motion for a stay of en‐
forcement of the summons pending this appeal, the district court stated
that Argomaniz had “shown more than a generalized fear of criminal
prosecution” and had “good reason to believe that his answers may tend
to incriminate him....”[12] Although this finding does suggest that Ar‐
gomaniz was entitled to raise his fifth amendment privilege, it does not
131
sufficiently determine the applicability of Argomaniz’s privilege against
self‐incrimination to the summons at issue in this case. “A court must
make a particularized inquiry, deciding, in connection with each specific
area that the questioning party wishes to explore, whether or not the
privilege is well‐founded.” United States v. Melchor Moreno, 536 F.2d
1042, 1049 (5th Cir.1976). See United States v. Rue, 819 F.2d 1488 (8th
Cir.1987).
The district court must review Argomaniz’ assertions of the privi‐
lege on a question‐by‐question basis. This will best be accomplished in
an in camera proceeding wherein Argomaniz is given the opportunity to
substantiate his claims of the privilege and the district court is able to
consider the questions asked and the documents requested by the sum‐
mons. See United States v. Roundtree, 420 F.2d 845, 852 (5th Cir.1969)
(“The district court may then determine by reviewing ... [the taxpayer’s]
records and by considering each question whether, in each instance, the
claim of self‐incrimination is well‐founded.”).[13] The district court al‐
ready has determined that Argomaniz does face a real and substantial
hazard of incrimination. However, we must remand this case to the dis‐
trict court, to enable that court to conduct an in camera proceeding, on a
question‐by‐question basis, to determine the actual extent to which Ar‐
gomaniz may rely on his fifth amendment privilege to avoid compliance
with the IRS summons. Stated differently, the district court must ascer‐
tain: first, whether the taxpayer has the records sought and, second,
whether under the existing circumstances they are incriminatory.
B. The Fifth Amendment Privilege May Exist
Even though compliance could be incriminating, the government ar‐
gues that Argomaniz must comply with the IRS summons because Argo‐
maniz did not properly invoke his fifth amendment privilege. First, the
government claims that the fifth amendment is not applicable to this situa‐
tion because the contents of business records are not privileged. Second,
the government asserts that Argomaniz made an impermissible blanket
claim of self‐incrimination. Both of these arguments are without merit.
The government correctly states that the contents of voluntarily
prepared business records are not protected by the fifth amendment
privilege against self‐incrimination. See United States v. Doe, 465 U.S.
132
U.S. v. Argomaniz
605, 610‐12, 104 S.Ct. 1237, 1241‐42, 79 L.Ed.2d 552 (1984). However, Ar‐
gomaniz is not invoking his privilege as to the contents of the documents
described in the IRS summons, but as to the act of producing the docu‐
ments. The Supreme Court “has emphasized that the mere act of produc‐
ing documents whose contents were not privileged could be sufficiently
testimonial and incriminating in nature to trigger the fifth amendment
privilege.” In re Grand Jury No. 86‐3 (Will Roberts Corp.), 816 F.2d 569,
571 (11th Cir.1987) (citing United States v. Doe, 465 U.S. 605, 104 S.Ct.
1237, 79 L.Ed.2d 552 (1984) and Fisher v. United States, 425 U.S. 391, 96
S.Ct. 1569, 48 L.Ed.2d 39 (1976)). To be testimonial, a “communication
must itself, explicitly or implicitly, relate a factual assertion or disclose
information,” Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 2347,
101 L.Ed.2d 184 (1988); it must “add ... to the sum total of the govern‐
ment’s information....” Fisher v. United States, 425 U.S. 391, 411, 96 S.Ct.
1569, 1581, 48 L.Ed.2d 39 (1975).
By producing documents in compliance with the IRS summons, Ar‐
gomaniz would be establishing the existence and authenticity of the
documents listed in the summons, as well as verifying that these docu‐
ments were in his possession. Doe v. United States, 487 U.S. 201, 209, 108
S.Ct. 2341, 2347, 101 L.Ed.2d 184 (1987). He would actually be informing
the government that he had income in the years in question yet failed to
file income tax returns. This act of production would be sufficiently tes‐
timonial and incriminating to activate Argomaniz’s fifth amendment
privilege.
The government’s final argument, that there was no fifth amend‐
ment justification for Argomaniz’s blanket invocation of the privilege
against self‐incrimination, is also without merit. It is true that a blanket
refusal to produce records or to testify will not support a fifth amend‐
ment claim. United States v. Roundtree, 420 F.2d 845, 852 (5th Cir.1969).
However, Argomaniz did not refuse to comply with the summons in a
blanket manner. Instead, Argomaniz followed the general rule that a
taxpayer “must present himself with his records for questioning, and as
to each question and each record elect to raise or not to raise the de‐
fense.” Id. Argomaniz answered the non‐incriminating questions posed
by the IRS officer, and, in response to each incriminating question or
document request refused to answer and cited his privilege against self‐
133
incrimination. When the IRS officer realized that Argomaniz would raise
the privilege in response to each of her document requests and to each of
her questions concerning Argomaniz’s tax liability for the years in ques‐
tion, the IRS officer terminated the interview.[14] Argomaniz could not
respond to questions that he was not asked. Thus, the effect of the inter‐
view was as if the IRS officer had asked all relevant questions and for
each document listed in the summons, and Argomaniz had responded
by repeatedly raising his fifth amendment privilege in response. Under
the circumstances in this case, a blanket invocation of the privilege
against self‐incrimination did not occur.
III. CONCLUSION
Because compliance with the IRS summons could violate Argo‐
maniz’s fifth amendment privilege against self‐incrimination and be‐
cause the district court failed to make a particularized inquiry necessary
to determine whether Argomaniz properly refused to comply with the
summons, we REVERSE the district court’s order compelling Argomaniz
to comply with the summons. We REMAND this matter to the district
court with instructions to determine, through an in camera inspection,
the existence of Argomaniz’s fifth amendment privilege in this case.
REVERSED and REMANDED.
[1] Section 7602 of the Internal Revenue Code provides:
(a) Authority to summon, etc. For the purpose of ascertaining the
correctness of any return, making a return where none has been made,
determining the liability of any person for any internal revenue tax or
the liability at law or in equity of any transferee or fiduciary of any per‐
son in respect to any internal revenue tax, or collecting any such liability,
the Secretary is authorized—
(1) To examine any books, papers, records, or other data which may
be relevant or material to such inquiry;
(2) To summon the person liable for tax or required to perform the
act, or any officer or employee of such person, or any person having pos‐
session, custody, or care of books of account containing entries relating
to the business of the person liable for tax or required to perform the act,
or any other person the Secretary may deem proper, to appear before the
134
U.S. v. Argomaniz
Secretary at a time and place named in the summons and to produce
such books, papers, records, or other data, and to give such testimony,
under oath, as may be relevant or material to such inquiry; and
(3) To take such testimony of the person concerned, under oath, as
may be relevant or material to such inquiry.
[2] The summons required Argomaniz to produce:
All documents and records you [Argomaniz] possess or control that
reflect income you received for the year(s) 1984, 1985, 1986, [and] 1987.
These documents and records include, but are not limited to: Forms W‐2,
Wage and Tax Statement, Forms 1099 for interest or dividend income,
employee earnings statements, and records of deposits with banks or
other financial institutions. Also include any and all books, records,
documents and receipts for income from, but not limited to, the follow‐
ing sources: wages, salaries, tips, fees, commissions, interest, rents, royal‐
ties, alimony, state or local tax refunds, annuities, life insurance policies,
endowment contracts, pensions, estates, trusts, discharge of indebted‐
ness, distributive shares of partnership income, business income, gains
from dealings in property, and any other compensation for services (in‐
cluding receipt of property other than money). This includes any and all
documents and records pertaining to any income you have assigned to
any other person or entity.
[3] Section 7402(b) of the Internal Revenue Code provides:
(b) To enforce summons.—If any person is summoned under the in‐
ternal revenue laws to appear, to testify, or to produce books, papers, or
other data, the district court of the United States for the district in which
such person resides or may be found shall have jurisdiction by appropri‐
ate process to compel such attendance, testimony, or production of
books, papers, or other data.
[4] Section 7604 of the Internal Revenue Code provides:
(a) Jurisdiction of district court. If any person is summoned under
the internal revenue laws to appear, to testify, or to produce books, pa‐
pers, records or other data, the United States district court for the district
in which such person resides or is found shall have jurisdiction by ap‐
135
propriate process to compel such attendance, testimony, or production of
books, papers, records, or other data.
(b) Enforcement.—Whenever any person summoned under section
... 7602 neglects or refuses to obey such summons, or to produce books,
papers, records or other data, or to give testimony as required, the Secre‐
tary may apply to the judge of the district court or to a United States
commissioner for the district within which the person so summoned re‐
sides or is found for an attachment against him as for a contempt. It shall
be the duty of the judge or the commissioner to hear the application,
and, if satisfactory proof is made, to issue an attachment, directed to
some proper officer, for the arrest of such person, and upon his being
brought before him to proceed to a hearing of the case; and upon such
hearing the judge or the United States commissioner shall have power to
make such order as he shall deem proper, not inconsistent with the law
for the punishment of contempts, to enforce obedience to the require‐
ments of the summons and to punish such person for his default or dis‐
obedience.
[5] The transcript of this hearing reads, in pertinent part, as follows:
Q [Simmons]: State your name.
A [Argomaniz]: Al Argomaniz.
Q: Your social security number?
A: 267‐11‐1925.
Q: Your home address, your present home address?
A: 601 Vila Bella....
Q: What city?
A: Coral Gables.
Q: Zip code?
A: 33143.
Q: Do you have your W‐2 forms for the years 1984, ‘85, ‘86 and ‘87?
A: This box together with the boxes which I have brought but can‐
not carry upstairs at one time contain such as [sic] the requested docu‐
ments [that] were under my custody or control at the time of service of
the summons or at this time. However, I respectfully decline to produce,
identify or authenticate such documents based upon my Constitutional
privilege [sic] against self incrimination. In making this claim I rely upon
136
U.S. v. Argomaniz
the advice of counsel ....
Q: Do you have your deposit information or bank records and other
financial information with you for the periods ‘84, ‘85, ‘86 and ‘87?
A: Based upon my Constitutional rights, I refuse to answer that
question.
Q: ... Can you name the employees that you have had, can you give
me the names of the employees you have had over the last four years,
‘84, ‘85, ‘86 an[d] ‘87?
A: Based upon my Constitutional rights, I refuse to answer.
Q: Have you received any interest income?
A: Based upon my Constitutional rights, I refuse to answer the
question.
Q: Do you have any other income sources other than salaries, or
wages?
question.
Q: Have you made any payments to these taxes for ‘84, ‘85, ‘86 or
‘87?
question.
Q: You have the records and they apparently are sealed. Now I am
going to ask you to turn them over to me. I will give you a document re‐
ceipt—turn the sealed boxes over to me.
A: This box together with the boxes that I brought, cannot carry up‐
stairs at one time, contain such as [sic] the requested documents that
were under my custody or control at the time of service of the summons
or at this time. However, I respectfully decline to produce, identify or au‐
thenticate such documents based upon my Constitutional privilege
against self incrimination. In making this claim I rely upon the advice of
counsel....
Q: All right. Well, I see no other recourse than to adjourn the meet‐
ing and proceed with the enforcement under the summons and the court
order.
Q: This concludes the interview.
[6] In its October 10, 1989 order granting Argomaniz’s motion to
137
stay enforcement of the summons, the district court stated:
Under the U.S. Supreme Court’s holding in United States v. Doe,
465 U.S. 605 [,104 S.Ct. 1237, 79 L.Ed.2d 552] (1983) Petitioner [Argo‐
maniz] can demonstrate at least some likelihood of prevailing on his
Fifth Amendment claim on appeal. Furthermore, petitioner has shown
more than a generalized fear of criminal prosecution. He was notified
that he was to be questioned regarding his failure to file income tax re‐
turns for a three year period. Certainly petitioner [Argomaniz] has good
reason to believe that his answers may tend to incriminate him, whether
or not criminal proceedings have been instituted against petitioner [Ar‐
gomaniz]. By not staying enforcement of the summons pending appeal,
this Court would, in effect, deprive petitioner [Argomaniz] of his appeal
on his Fifth Amendment claim and would force him to waive his consti‐
tutional right against self‐incrimination. (emphasis added).
[7] The fifth amendment provides that “[n]o person ... shall be com‐
pelled in any criminal case to be a witness against himself....” U.S.
Const.Amend. V.
[8] The government relies on the following language from our deci‐
sion in United States v. Reis, 765 F.2d 1094 (11th Cir.1985) (per curiam),
to support its position that there can never be a reasonable fear of crimi‐
nal prosecution while an IRS investigation is still in the civil stages:
When the I.R.S. properly issues a summons in support of a civil in‐
vestigation to determine a taxpayer’s legal liability, the mere fact that
evidence might be used in a later criminal prosecution will not support a
blanket claim of self‐incrimination. Id. at 1096 (emphasis in original).
However, this passage does not state that the privilege may never
be invoked in a civil IRS investigation. See United States v. Cuthel, 903
F.2d 1381, 1384 (11th Cir.1990) (“A witness may properly invoke the
privilege when he ‘reasonably apprehends a risk of self‐incrimination, ...
though no criminal charges are pending against him ... and even if the
risk of prosecution is remote.’ “ (quoting In re Corrugated Container
Anti‐Trust Litigation, 620 F.2d 1086, 1091 (5th Cir.1980), cert. denied sub
nom Adams Extract Co. v. Franey, 449 U.S. 1102, 101 S.Ct. 897, 66
L.Ed.2d 827 (1981))). Instead, it stands for the proposition that a blanket
138
U.S. v. Argomaniz
claim of self‐incrimination will not be successful in a civil IRS investiga‐
tion. See United States v. Allee, 888 F.2d 208, 212 (1st Cir.1989) (citing
Reis for the proposition that a blanket fifth amendment objection to an
IRS summons is not a viable defense). To the extent that Reis could be
read otherwise, it is obiter dictum. Below we discuss the government’s
argument that Argomaniz’s fifth amendment claim was a blanket claim.
[9] See supra note 2.
[10] 26 U.S.C. Sec. 7203 reads as follows:
Sec. 7203. Willful failure to file return, supply information, or
pay tax
Any person required under this title to pay any estimated tax
or tax, or required by this title or by regulations made under author‐
ity thereof to make a return, keep any records, or supply any infor‐
mation, who willfully fails to pay such estimated tax or tax, make
such return, keep such records, or supply such information, at the
time or times required by law or regulations, shall, in addition to
other penalties provided by law, be guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than $25,000
($100,000 in the case of a corporation), or imprisoned not more than
1 year, or both, together with the costs of prosecution.
26 U.S.C. Sec. 6012 reads as follows:
Sec. 6012. Persons required to make returns of income
(a) General rule. Returns with respect to income taxes under
subtitle A shall be made by the following:
(1)(A) Every individual having for the taxable year gross in‐
come which equals or exceeds the exemption amount ...
[11] In the “Petition to Enforce Internal Revenue Summons”
Simmons filed on February 21, 1989, she stated: “The books, re‐
cords, papers, and other data sought by the summons are not al‐
ready in the possession of the Internal Revenue Service.” In the Dec‐
laration attached to this petition, Simmons declared, under penalty
of perjury, that “[t]he books, papers, records or other data sought by
the summons are not already in the possession of the Internal Reve‐
nue Service, or are not readily accessible to us.” It should be noted
139
that it would be improper for the IRS to seek enforcement of a
summons, the objects of which already were in its possession.
United States v. Powell, 379 U.S. 48, 57‐58, 85 S.Ct. 248, 255, 13
L.Ed.2d 112 (1964). Therefore, because the IRS, by its own declara‐
tion, has no other ready access to the summonsed documents, Ar‐
gomaniz’s production of these documents, assuming the district
court finds them to be in Argomaniz’s possession, very well could
be incriminatory.
[12] See supra note 6.
[13] As the Second Circuit observed in Estate of Fisher v. Commis‐
sioner of Internal Revenue, 905 F.2d 645, 650 (2d Cir.1990), similar in
camera proceedings have been repeatedly looked upon with favor by the
Supreme Court. See also In re Grand Jury Subpoena, 831 F.2d 225, 226
(11th Cir.1987) (directing the district court to conduct either a hearing or
an in camera inspection on a document‐by‐document basis to ascertain
the applicability of the attorney‐client privilege).
[14] See supra footnote 5 for the pertinent transcript of Argomaniz’s
appearance before the IRS officer.
140

U.S. v. Sharp
United States v. Sharp, 920 F.2d 1167, (4th Cir. 1990)
UNITED STATES of America; David E. Mitchell,
Revenue Office of the Internal Revenue Service,
Plaintiffs‐Appellees,
v.
Roger L. SHARP,
Defendant‐Appellant.
No. 89‐2109.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 5, 1990.
Decided Dec. 6, 1990.
As Amended Dec. 20, 1990.
Stephen Jon Cribari, Acting Federal Public Defender, argued (Fred

Warren Bennett, Federal Public Defender, Beth M. Farber, Asst. Federal
Public Defender, Baltimore, Md., on brief), for defendant‐appellant.
Doris Denise Coles, Tax Div., U.S. Dept. of Justice, Washington,
D.C., argued (Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen,
Charles E. Brookhart, Tax Div., U.S. Dept. of Justice, Washington, D.C.,
Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for plain‐
tiffs‐appellees.
Before PHILLIPS and WILKINSON, Circuit Judges, and WILSON,
United States District Judge for the Western District of Virginia, sitting
by designation.
PHILLIPS, Circuit Judge.
The fifth amendment exists, in part, to “assure that an individual is
not compelled to produce evidence which later may be used against him
as an accused in a criminal action.” Maness v. Meyers, 419 U.S. 449, 461,
95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975). This case raises the question
whether the fifth amendment provided a taxpayer with a basis for refus‐
ing to answer questions propounded by the Internal Revenue Service
(IRS) in the course of an investigation of possible civil liability. The dis‐
141
trict court held that it did not provide that protection and ordered the
taxpayer to answer or be held in contempt. We disagree and reverse.
I
The IRS initiated an investigation of Roger Sharp to determine his
tax liability for the years 1977, 1978, 1980, 1981, and 1982, after determin‐
ing that Sharp had failed to file a federal income tax return for those
years.[1]) As part of the investigation, an IRS Revenue Officer issued a
summons in December of 1987, requiring Sharp to appear for question‐
ing and to produce financial records and documents for the years in
question. Sharp failed to comply with the summons, and the govern‐
ment, pursuant to 26 U.S.C. Secs. 7402(a), (b), and 7604(a), petitioned the
district court for judicial enforcement. The district court, after a hearing,
entered an order enforcing the summons and directing Sharp to appear
and comply with the summons. Sharp did appear on the appointed day
but he refused to testify or produce any documents.
The government then petitioned for an order holding Sharp in con‐
tempt. Because he faced criminal penalties, the court appointed counsel
for Sharp, who had been unrepresented up to this point. At the show
cause hearing, Sharp provided some records to the IRS but these docu‐
ments proved useless. As a result the court ordered Sharp to answer IRS
questions concerning his employment and his assets for the years in
question. Sharp, accompanied by counsel this time, appeared for further
questioning by the IRS and was asked a series of questions designed to
elicit information on (1) his income for 1977‐1982; (2) bank records or real
estate records pertaining to any income and assets for those years; (3) his
employment; and (4) the location of the banks in which he kept income
or assets. Sharp, through his court‐appointed counsel, invoked his fifth
amendment privilege against self‐incrimination in response to each IRS
question.
The district court then ordered Sharp to answer the IRS questions.
The court rejected Sharp’s fifth amendment claim, finding that “in light
of the government’s representation (implicit, if not express) that it has no
present intention of pursuing criminal prosecution of respondent, ... re‐
spondent’s fear for self‐incrimination is merely ‘trifling or imaginary.’”
The court added that if Sharp faced criminal prosecution in the future,
142
U.S. v. Sharp
the court could then, if appropriate, either dismiss the charges or sup‐
press information obtained from the compelled testimony.
Upon Sharp’s request, the district court certified the question for in‐
terlocutory appeal under 28 U.S.C. Sec. 1292(b), and we granted leave to
appeal.
II
At the outset, we reject the government’s contention that Sharp’s
claim of privilege came too late to be considered. Specifically, the conten‐
tion is that he might have raised it earlier in resisting the court’s en‐
forcement order; that he did not; that the order was therefore a final one
from which he might have appealed but did not; and that he was there‐
fore precluded by principles of res judicata from raising it thereafter.
Such a failure may in appropriate cases operate to preclude later as‐
sertions of the privilege, see, e.g., United States v. Rylander, 460 U.S. 752,
103 S.Ct. 1548, 75 L.Ed.2d 521 (1983), but this is not such a case. Res judi‐
cata does not operate inexorably, and it should not operate here to de‐
prive a litigant of a fundamental constitutional right because of his fail‐
ure to assert it in technically proper form while unrepresented by coun‐
sel. Once represented, it was properly asserted.
III
The fifth amendment’s protection against self‐incrimination applies
in any type of proceeding whether civil, criminal, administrative, inves‐
tigatory, or adjudicatory. Maness, 419 U.S. at 464, 95 S.Ct. at 594. And it
applies not only to evidence which may directly support a criminal con‐
viction, but to “information which would furnish a link in the chain of
evidence that could lead to prosecution, as well as evidence which an in‐
dividual reasonably believes could be used against him in a criminal
prosecution.” Id. at 461, 95 S.Ct. at 592 (citing Hoffman v. United States,
341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951)).
Accordingly, it may apply in the context of an IRS investigation into
civil tax liability, given the recognized potential that such investigations
have for leading to criminal prosecutions. Mathis v. United States, 391
U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); United States v. Edgerton, 734
F.2d 913 (2d Cir.1984); Shaffer v. United States, 528 F.2d 920 (4th
143
Cir.1975); United States v. Cates, 686 F.Supp. 1185 (D.Md.1988). In par‐
ticular, the privilege may properly be invoked in this context on the basis
that the information being sought could serve as a link in the chain of
evidence in a prosecution for criminal violation of the tax laws. See, e.g.,
Edgerton, 734 F.2d at 921.
In this context, as generally, the privilege may not, however, be in‐
voked on no more than the mere assertion by one claiming the privilege
that information sought by the government may be incriminating.
Whether there is a sufficient hazard of incrimination is of course a ques‐
tion for the courts asked to enforce the privilege. Hoffman v. United
States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).
In making this determination, a court asks essentially two things.
The first is whether the information is incriminating in nature. This may
appear in either of two ways. It may be evident on its face, in light of the
question asked and the circumstances of its asking. Id. at 486‐87, 71 S.Ct.
at 818‐19. If it is so facially evident, that ends this inquiry. If it is not, the
person asserting the privilege may yet demonstrate its incriminating po‐
tential by further contextual proof. See, e.g., Rylander, 460 U.S. at 758‐59,
103 S.Ct. at 1553‐54.
If the incriminating nature of the information is established by ei‐
ther route, there remains the question whether criminal prosecution is
sufficiently a possibility, all things considered, to trigger the need for
constitutional protection. As to this, the proper test simply assesses the
objective reasonableness of the target’s claimed apprehension of prosecu‐
tion. And on the better view of things here, the reasonableness of a
claimed apprehension should simply be assumed once incriminating po‐
tential is found, unless there are genuine questions about the govern‐
ment’s legal ability to prosecute.[2]) That is to say, once incriminating
potential is found to exist, courts should not engage in raw speculation
as to whether the government will actually prosecute, see Edgerton, 734
F.2d at 921 (quoting United States v. Jones, 703 F.2d 473, 478 (10th
Cir.1983)), and should only pursue that inquiry when there are real ques‐
tions concerning the government’s ability to do so because of legal con‐
straints such as statutes of limitation, double jeopardy, or immunity. In
re Folding Carton Antitrust Litigation, 609 F.2d 867, 872 (7th Cir.1979).
Here, the incriminating nature of the information sought from
144
U.S. v. Sharp
Sharp was evident from the very questions asked under the circum‐
stances of their asking. Sharp was asked to provide information directly
relating to his income and his knowledge of it for the years in which he
was under investigation for failing to file returns. Willfulness is an essen‐
tial element of the criminal offense of failing to file income tax returns. 26
U.S.C. Sec. 7203. Hence, it is evident that the information sought would
“furnish a link in the chain of evidence that could lead to prosecution,”
and that suffices. See Hoffman, 341 U.S. at 486, 71 S.Ct. at 818.
That leads to the second inquiry, whether Sharp’s asserted appre‐
hension of criminal prosecution was a reasonable one under the circum‐
stances. It was on this point that the district court rejected his claim—on
the express basis that “in light of the government’s representation (im‐
plicit, if not express) that it has no present intention of pursuing criminal
prosecution... [Sharp’s] fear of prosecution is merely ‘trifling or imagi‐
nary.’”[3] As our statement of the proper test has indicated, the district
court erred in this conclusion.
With the incriminating nature of the information facially evident,
the reasonableness of Sharp’s apprehension of prosecution should have
been assumed, unless there were reasons (other than the government’s
express or implied representation of its present intention) to question the
government’s legal ability to prosecute. In the district court, the govern‐
ment suggested no such constraints, relying simply on its assertion of
present intention, and the district court obviously relied on no extrinsic
legal constraints on prosecution.
On this appeal, however, the government has sought to raise for the
first time the proposition that the six‐year statute of limitations applica‐
ble to willful failure to file, 26 U.S.C. Sec. 6531, has expired “with respect
to all years under investigation and for which information has been
sought.”[4] While we might be justified in declining to consider this
newly advanced alternative theory for affirmance, see Singleton v. Wulff,
428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), we believe we should
address it in view of the general seriousness of allowing invocation of
this privilege to thwart government investigations. Doing so, we find no
merit in it.
Sharp was being investigated for, inter alia, tax years 1981 and 1982.
According to the concededly thin case law on this question, see United
145
States v. Doelker, 211 F.Supp. 663, 665 (N.D. Ohio 1962); see also United
States v. Phillips, 843 F.2d 438, 443 (11th Cir.1988), the six‐year statute of
limitations began to run on April 15, 1982 (for 1981) and April 15, 1983
(for 1982). The IRS issued the summons on December 17, 1987, and peti‐
tioned for judicial enforcement on March 11, 1988. On May 16, 1988, the
court entered an order enforcing the summons. Thus, it would appear
that as of the date of the court’s order enforcing the summons (May 16,
1988), the statute of limitations had not run for at least tax year 1982.
Having reached this conclusion, we need not wrestle with the tougher
problems of tolling or the appropriate time to make the inquiry of
whether the statute of limitations had run. Since the statute may not
have run for tax year 1982, Sharp’s fear of prosecution remains suffi‐
ciently well‐founded.
IV
As indicated, the district court sought to buttress its rejection of
Sharp’s claim by observing that if prosecution did ensue, the court could
then act to protect him by either dismissing the charges or suppressing
evidence. Presumably recognizing that this cannot act as a substitute for
the constitutional protections provided by the self‐incrimination clause,
the government does not rely upon this proffer by the district court as an
alternative basis for affirmance. We nevertheless address the point
briefly in view of the district court’s apparent reliance upon it.
In brief sum, a court may not on this basis find a person’s fifth
amendment right sufficiently protectible by the court that his answers to
incriminating questions may be compelled. The appropriate device for
achieving this end is the grant of use immunity under 18 U.S.C. Secs.
6002, 6003, Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32
L.Ed.2d 212 (1972), a device that may only be used by the executive
branch acting in its prosecutorial function, and is not available to the ju‐
diciary. United States v. Doe, 465 U.S. 605, 616, 104 S.Ct. 1237, 1244, 79
L.Ed.2d 552 (1984) (provision of “constructive use immunity” by judici‐
ary would violate separation of powers); Maness, 419 U.S. at 463, 95 S.Ct.
at 593 (compulsion under promise of judicial protection would violate
self‐incrimination clause).
146
U.S. v. Sharp
V
For the foregoing reasons, we reverse the order of the district court
compelling the appellant, at peril of a contempt sanction, to answer
questions propounded by the IRS. This is of course without prejudice to
the government’s right to seek compulsion by other, valid means if so
disposed.
REVERSED
[1]Sharp’s counsel submitted at oral argument that Sharp is a “tax
protester.” That he may be is irrelevant to the fifth amendment issue he
raises.
[2]An assumption sufficiently justified, indeed compelled, by the
existence of the government’s general constitutional obligation faithfully
to execute its criminal (as other) laws, U.S. Const. Art. II, Sec. 3, princi‐
pally by prosecuting (subject of course to prosecutorial discretion) all
those whose commission of crime it has sufficient evidence to prove.
Certainly an apprehension that in a particular case that general obliga‐
tion will be carried out could not be thought unreasonable.
[3]In so holding, the district court relied on United States v. Reis,
765 F.2d 1094 (11th Cir.1985), which it seemed to read as requiring an in‐
dependent inquiry by the court into the actual likelihood of prosecution,
and a finding of probability rather than mere possibility to trigger fifth
amendment protection. See id. at 1096 (“mere fact that evidence might be
used” in criminal prosecution not sufficient) (emphasis in original). To
the extent this is a proper reading of Reis (a matter not entirely clear
from its rather cursory discussion of the point), we think the district
court’s reliance upon it was not well founded. Reliance more properly
could have been placed on a recent decision of the same district court in
United States v. Cates, 686 F.Supp. 1185 (D.Md.1988) (Black, J.), which
appears to have applied essentially the test we hold to be the proper one.
See id. at 1191 (mere fact that information sought was facially incriminat‐
ing demonstrated sufficient likelihood of prosecution to trigger constitu‐
tional protection; fact that IRS had not revealed any present intention to
prosecute irrelevant).
147
[4]There is the oddity about the government’s position that if it has
indeed understood from the outset—whether correctly or not—that it
could not prosecute, it could long since have acted decisively on that un‐
derstanding and proceeded with its civil investigation without interrup‐
tion. As Sharp notes in responding to this newly raised theory, had the
government committed itself on the matter in some binding way this ap‐
peal never would have occurred. Appellant’s Reply Br. at 3. In the end,
the government equivocates on the point even as it raises it. At one point
in its brief it suggests that “when the possibility of prosecution appears
to be remote (as when the statute of limitations has run) rejection of a
claim of privilege is proper.” Appellee’s Br. at 10‐11 (emphasis added).
At another, it asserts even more disarmingly that “since the applicable
statutes of limitations have expired, we cannot fathom how taxpayer
could possibly be incriminated....” Id. at 11. What the government has
not yet done is formally to relieve the target’s apprehension—as obvi‐
ously it could by either of several available means—that prosecution re‐
mains a possibility. So long as the government thus attempts to keep this
anchor to windward while this appeal is pending, Sharp’s apprehension
is not relieved.
148

U.S. v. Robbins
NOT FOR CITATION
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
UNITED STATES OF AMERICA, et. al. Case #: C‐04‐4097‐JH

Petitioners, ORDER GRANTING
RESPONDENT’S MOTION
v. TO DISMISS

PAUL ROBBINS, [Doc. No. 11]

Respondent
Respondent Paul Robbins moves to dismiss Petitioners’ request to

enforce a summons issued by the Internal Revenue Service (“IRS”)
summons, asserting that compliance with the summons would violate
his Fifth Amendment privilege against self‐incrimination. The Court has
considered the moving and responding papers, oral argument presented
at the hearing on December 17, 2004, and the documents provided to the
Court by Respondent for incamera review. For the reasons set forth be‐
low, the motion to dismiss will be granted.
I. BACKGROUND
On May 4, 2004, Petitioners summoned Respondent to appear be‐
fore the Internal Revenue Service to give testimony and provide docu‐
mentation pertaining to his federal income tax liability for the years 2000,
2001 and 2002.
On June 7, 2004, Robbins appeared before the IRS but refused to
provide testimony or documentation pursuant to the summons. N Sep‐
149
tember 20, 2004, Petitioners filed a verified petition to enforce the sum‐
mons. On October 29, 2004, the Court ordered the Respondent to appear
befor eit on December 10, 2004, to show cause why he should not be
compelled to provide the testimony and documents required by the
summons. The hearing date was continued until December 17, 2004. On
November 24, 2004, Robbins appeared before the IRS for a second time
and again refused to provide testimony or documentation, asserting his
Fifth Amendment privilege against self‐incrimination.
On December 2, 2004, Respondent moved to dismiss the instant pe‐
tition. On December 13, 2004, Petitioners filed opposition to the motion
on the ground that Respondent has failed to comply with the summons
and requested that the Court conduct an in camera review of any finan‐
cial documentation that Respondent may possess that pertains to the
summons. On December 17, 2004, Respondent appeared before the
Court, presented a reply to Petitioners’ opposition, and was ordered to
provide the documents requested in the summons to the Court for in
camera review. On Match 18, 2005, Respondent filed a written response,
stating that he possesses no additional documents.
II. DISCUSSION
The Court has reviewed the documents provided by Respondent in
camera in order to determined (1) whether the documents would “sup‐
port a conviction under a federal criminal statute” or “furnish a link in
the chain of evidence needed to prosecute the claimant for a federal
crime,” United States v. Rendahl, 746 F,2d 553m 555 (9th Cir. 1983), and (2)
whether Respondent faces “substantial hazards of self‐incrimination”
that are “real and appreciable,” id. The Court has made an “examination
of the questions [set forth in the summons], their setting, and the peculi‐
arities of the case,” id., and has determined that the documents provided
by Respondent are subject to Respondent’s Fifth Amendment privilege
against self‐incrimination under the standard articulated in Rendahl. Peti‐
tioners have declined to offer Respondent use immunity. United States v.
Doe, 465 U.S. 605, 617 (1984); 18 U.S.C. §§ 6002‐04. Accordingly, Court
will grant Respondent’s motion to dismiss.
150
U.S. v. Robbins
III. ORDER
Good cause therefore appearing, IT IS HEREBY ORDERED that the
motion to dismiss is GRANTED. The clerk shall close the file.

DATED: 04‐27‐05

(x) signed
Jeremy Fogel
United States District Judge

151
About the Author
W
illiam Conklin is a native of
Colorado. He has a BA in Span‐
ish an MA in Communications
from the University of Colorado. Mr.
Conklin was a school teacher for 15 years
at the elementary, high school and college
levels. He began his battle against the IRS
in 1976.
In 1981, Mr. Conklin quit his teaching
job and devoted full time to his fight with
the IRS. Within a few years, Mr. Conklin had six published wins and he
began to research the issues relating to the Income Tax and the Fifth
Amendment. He now has 25 years of experience on the front lines in the
battle with the Internal Revenue Service and the Federal Income Tax.
Mr. Conklin’s contact information is as follows:
William Conklin
3296 Raleigh Street
Denver, CO 80212‐1708
tel: 303‐455‐0837
fax: 303‐480‐1799
URL: http://www.billconklin.com or http://anti‐irs.com
email: [email protected] or [email protected]
To schedule a speaking engagement in regards to Why No One is Re‐
quired to File Tax Returns, please contact the author or Davidson Press at
[email protected].
152

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were two potential career opportunities that fascinated me—one was a

also have to disallow the exemptions, exclusions, credits, de‐

sanctioned approximately $6,000 plus double costs. The Dis‐

untarily giving up a constitutionally protected right—your right to pri‐

witness against himself, within the meaning of the fifth

Third Circuit has protected private books and records from

because the request to produce certain documentary evidence would

Element Definition or Comment

Element Definition or Comment

Element Definition or Comment

Element Definition or Comment

Element Definition or Comment

Element Definition or Comment

Element Definition or Comment

Element Definition or Comment

Element Definition or Comment

Element Definition or Comment

Element Definition or Comment

Section 61 (a) GENERAL DEFINITION.—Except as

compliance system. —Jerome Kurtz, IRS Commissioner (1980

IRS Commissioner Roscoe Egger (1984), also expressed this truth

Stephen Jon Cribari, Acting Federal Public Defender, argued (Fred

Respondent Paul Robbins moves to dismiss Petitioners’ request to

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