An Open Letter To My Congressman, Dave Trott

Complimentary Story
Dear Mr. Trott:
It has come to my attention that the executive branch's Internal Revenue Service (IRS) is deliberately presenting false and very harmful disinformation on its website, and likely in other types of publications as well.

Specifically, on the page at https://www.irs.gov/businesses/small-businesses-self-employed/anti-tax-law-evasion-schemes-law-and-arguments-section-iv, the IRS has the following posted:

Contention: The Sixteenth Amendment does not authorize a direct non-apportioned federal income tax on United States citizens.
Some assert that the Sixteenth Amendment does not authorize a direct non-apportioned income tax and thus, U.S. citizens and residents are not subject to federal income tax laws.

The Law:
The courts have both implicitly and explicitly recognized that the Sixteenth Amendment authorizes a non-apportioned direct income tax on United States citizens and that the federal tax laws as applied are valid. In United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990), cert. denied, 500 U.S. 920 (1991), the court cited Brushaber v. Union Pac. R.R., 240 U.S. 1, 12-19 (1916), and noted that the U.S. Supreme Court has recognized that the "Sixteenth Amendment authorizes a direct nonapportioned tax upon United States citizens throughout the nation."
However, the Brushaber court says no such thing.

In fact, that unanimous Supreme Court ruling says exactly the opposite of what is said by the IRS through its quote of the 10th circuit.
Contra the Collins court, the Brushaber court unambiguously holds that non-apportioned direct taxes are Constitutionally prohibited and remain so after the 16th Amendment, and that the income tax is an indirect excise tax only able to lawfully be administered in accordance with that specific legal character.

"We are of opinion, however, that the confusion is not inherent, but rather arises from the conclusion that the 16th Amendment provides for a hitherto unknown power of taxation; that is, a power to levy an income tax which, although direct, should not be subject to the regulation of apportionment applicable to all other direct taxes. And the far-reaching effect of this erroneous assumption will be made clear by generalizing the many contentions advanced in argument to support it..."

Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916) (emphasis added).

The Brushaber court goes on to point out that the very suggestion of a non-apportioned direct tax is completely incoherent, because that would cause:

"...one provision of the Constitution [to] destroy another; that is, [it] would result in bringing the provisions of the Amendment [supposedly] exempting a direct tax from apportionment into irreconcilable conflict with the general requirement that all direct taxes be apportioned."
Ibid.

...and re-iterates its repeated pre-16th Amendment holdings that:

"[T]axation on income [is] in its nature an excise, entitled to be enforced as such..."
Ibid.

Less than one month later, the same court reiterates, with yet greater clarity, what it says in Brushaber:
"[B]y the [Brushaber] ruling, it was settled that the provisions of the Sixteenth Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged, and being placed in the category of direct taxation subject to apportionment by a consideration of the sources from which the income was derived -- that is, by testing the tax not by what it was, a tax on income, but by a mistaken theory deduced from the origin or source of the income taxed."

Stanton v. Baltic Mining Co., 240 U.S. 103 (1916) (emphasis added).

Contemporary expert analysis of the Brushaber ruling reports the same thing:

"The Sixteenth Amendment does not permit a new class of a direct tax... The Amendment, the [Supreme] court said, judged by the purpose for which it was passed, does not treat income taxes as direct taxes but simply removed the ground which led to their being considered as such in the Pollock case, namely, the source of the income. Therefore, they are again to be classified in the class of indirect taxes to which they by nature belong."

Cornell Law Quarterly, 1 Cornell L. Q. pp. 298, 301 (1915-16) (emphasis added).

"In Brushaber v. Union Pacific Railroad Co., Mr. C. J. White, upholding the income tax imposed by the Tariff Act of 1913, construed the Amendment as a declaration that an income tax is "indirect," rather than ... an exception to the rule that direct taxes must be apportioned."

Harvard Law Review, 29 Harv. L. Rev, p. 536, (1915-1916) (emphasis added).

Subsequent Supreme Court rulings as well as executive and legislative department experts continue to make the same accurate declarations over the ensuing decades:

"If [a] tax is a direct one, it shall be apportioned according to the census or enumeration. If it is a duty, impost, or excise, it shall be uniform throughout the United States. Together, these classes include every form of tax appropriate to sovereignty. Cf. Burnet v. Brooks, 288 U. S. 378, 288 U. S. 403, 288 U. S. 405; Brushaber v. Union Pacific R. Co., 240 U. S. 1, 240 U. S. 12."

Steward Machine Co. v. Collector of Internal Revenue, 301 U.S. 548 (1937) (emphasis added).

"The income tax … is an excise tax with respect to certain activities and privileges which is measured by reference to the income which they produce. The income is not the subject of the tax; it is the basis for determining the amount of tax.” ... "[T]he amendment made it possible to bring investment income within the scope of the general income-tax law, but did not change the character of the tax. It is still fundamentally an excise or duty..."

House Congressional Record, March 27, 1943, p. 2580, testimony of Former Treasury Department legislative draftsman F. Morse Hubbard, (emphasis added).

"The Supreme Court, in a decision written by Chief Justice White, first noted that the Sixteenth Amendment did not authorize any new type of tax, nor did it repeal or revoke the tax clauses of Article I of the Constitution, quoted above. Direct taxes were, notwithstanding the advent of the Sixteenth Amendment, still subject to the rule of apportionment…"

Report No. 80-19A, 'Some Constitutional Questions Regarding the Federal Income Tax Laws' by Howard M. Zaritsky, Legislative Attorney of the American Law Division of the Library of Congress (1979) (emphasis added).

"[T]he sole purpose of the Sixteenth Amendment was to remove the apportionment requirement for whichever incomes were otherwise taxable. 45 Cong. Rec. 2245-2246 (1910); id. at 2539; see also Brushaber v. Union Pacific R. Co., 240 U. S. 1, 240 U. S. 17-18 (1916)"
South Carolina v. Baker, 485 U.S. 505 (1988), fn 13 (emphasis added).

In short, every single authority, and every branch of government-- legislative, executive and judicial-- knows perfectly well, and has stated unequivocally and repeatedly over all the decades since the unanimous Brushaber ruling, that the Supreme Court therein declares the income tax to NOT be a direct non-apportioned tax and that such a tax is Constitutionally prohibited and remains so after the 16th Amendment.
Further, every single authority, and every branch of government-- legislative, executive and judicial-- knows perfectly well, and has stated unequivocally and repeatedly over all the decades since the unanimous Brushaber ruling, that the Supreme Court therein declares that the income tax, both before and after the 16th Amendment, is an indirect excise tax, only lawfully able to be laid and administered in accordance with that legal character.

So, when the IRS says on its website that the 10th Circuit "cited Brushaber v. Union Pac. R.R., 240 U.S. 1, 12-19 (1916), and noted that the U.S. Supreme Court has recognized that the 'Sixteenth Amendment authorizes a direct non-apportioned tax upon United States citizens throughout the nation,'" it is correct about the circuit court having said this, but knows perfectly well that the circuit court was wrong, either innocently (as hard as that is to believe) or corruptly.

The IRS, therefore, is deliberately citing to a bogus "authority" that makes an incorrect statement about the law. Clearly, the object of this falsehood is to mislead American citizens about the agency's own scope of authority and the proper and lawful application of the income tax.
I'm sure you will agree with me that this subterfuge by the IRS is completely unacceptable and that little can be of broader or deeper personal interest to each and every American than the proper and lawful administration of the income tax. (For your own interest, a very brief but comprehensive presentation on the actual nature of the income excise can be found at http://losthorizons.com/A/TheNatureOfTheTax.pdf.)

***

In light of the foregoing, and out of the deep respect for the rule of law which I am sure you share with me, I therefore ask you to exercise the power of your office to command the Treasury Department to remove all false assertions about the law and the tax, such as the one I have used as an example above.

I further respectfully suggest that judicial officers who have promulgated or acted in accordance with false doctrines about the income tax in the conduct of their offices, particularly that it is, or can lawfully be administered as, a nonapportioned direct tax, have violated their oaths of office and deliberately acted against both the sovereign will and the critical interests of The People.

Such judicial officers-- and all executive officials who have condoned, cooperated with, or exploited such false and wrong statements or behavior-- should be deemed unfit for office. These oath-breakers should be duly impeached and removed from office, or fired, and each and every one should be prosecuted for any criminal acts their conduct has involved, which would include civil rights violations and possibly others.
I look forward to saluting you in person should the opportunity arise, and at the ballot box, for your prompt and diligent attention to this extremely important matter.

Thank you very much, and please consider me.

Most Respectfully Yours,
Peter E. Hendrickson
 

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