Talk:Brushaber v. Union Pacific Railroad

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[edit] Italics

Is there a standard on namings of court cases involving italics? -- Zoe

Well, yes. e.g. Eldred v. Ashcroft. Koyaanis Qatsi
Thanks, KQ. I thought there was. -- Zoe
Not a problem. I should add that to Ortolan's wikipedia:Manual of style. Koyaanis Qatsi

[edit] Direct vs. Indirect (Apportionment and Uniformity)

[The title of 'Tax Protestor Rhetoric' is inflammatory and violates the "neutral point-of-view" guideline that serves as the second of Wikipedia's "Five Pillars", so I changed it to something neutral --Flytrapper 00:07, 9 May 2006 (UTC)]

The article states that the 16th amendment removes the requirement of apportionment for income taxes. This is wrong. It never was removed. [Editor's note: False. See below. Famspear 21:38, 23 December 2005 (UTC) ]How do I know this? Stanton vs Baltic Mining ( http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=240&invol=103 ) This Surpreme court case is oddly missing from the court case index in this site. When read with this one, it settles this dispute. Both the Brushaber and Standon cases were decided the same day by the Same court. Stanton came second, making numerous references to the Brushaber decision.

We should get the Stanton page up and re-evaluate the claims made by this article.

From Stanton vs Baltic Mining: "by [Brushaber] it was settled that the provisions of the 16th 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 [240 U.S. 103, 1"13] in the category of direct taxation subject to apportionment by a consideration of the sources from which the income was derived.

The Brushaber case is quite specific that an income tax MUST be an indirect, more specifically, an excise tax. [Editor's Note: False. See below. Famspear 21:38, 23 December 2005 (UTC)] The an excise tax can't be imposed by the federal government arbitrarily and willy-nilly. Indeed, it cannot be imposed upon anything but either the exercise of federally-engendered PRIVILEGE *or* federally-SOURCED income. [Editor's note: False. See below. Famspear 21:38, 23 December 2005 (UTC)] What CANNOT be federally-excise-taxed is any activity to which (or stemming from which) a citizen has a Constitutionally-recognized and -protected RIGHT--such as the right to sell his labor for remuneration in the private sector. Remuneration for private-sector work simply is not federally excise taxable. [Editor's Note: False. See below. Famspear 21:38, 23 December 2005 (UTC) ] It can only be taxed directly, and thus would be subject to the rule of apportionment. [Ed. note: False after the 16th Am. See below. Famspear 21:38, 23 December 2005 (UTC)] Direct taxation under constitutional constraints has always been too cumbersome for DC. Hence ALL FEDERAL TAXES ARE, AND HAVE BEEN FOR SOME TIME, INDIRECT (MOSTLY EXCISE) TAXES. [Ed. note: False. See below. Famspear 21:38, 23 December 2005 (UTC)] But remuneration from private-sector work is not federally excise-taxable. This is the law, and it is actually how the Internal Revenue Code (IRC) and U.S. Title 26 are written. Yet private-sector companies continue to issue erroneous W-2's (committing perjury in the process) and workers continue to fail to rebut these erroneous filings, and thus are presumed to have actually received federally-privileged income--which, indeed, is excise taxable by the federal government.

As we can see it is obvious by this quote that income taxation is indirect (and not in deed of apportionment), and notby direct taxation in need of apportionment. Also no third class of taxation was created - the direct but not apportioneded income tax. ***But see above***: Federal excise taxation of private-sector remuneration-for-labor is not constitutional.

Comment from Famspear:
The statement: "The Brushaber case is quite specific that an income tax MUST be an indirect, more specifically, an excise tax" is quite incorrect. [Editor's note: the preceding statement is "quite incorrect" - assuming incorrectness is not a binary concept, that is - see note below --Flytrapper 00:07, 9 May 2006 (UTC)] The Brushaber Court indicated that income taxes on income from property, under Pollock, began to be treated as direct taxes, but that taxes on income from vocations, employment, etc., were -- both before and after Pollock -- excises (i.e., indirect taxes). The Court also indicated that income taxes on income from employment, etc., as indirect taxes, had never been subject to the apportionment requirement either before or after Pollock, and that such taxes on income from employment, etc., were and had always been constitutional. With regard to income taxes that were direct taxes (e.g., taxes on income from property) -- these taxes were also constitutional even prior to the 16th Amendment as long as they were apportioned among the states according to population. The Court in Brushaber ruled that the Sixteenth Amendment simply removed the requirement that "direct" income taxes (such as taxes on income from property) be apportioned.
The statements: "The article states that the 16th amendment removes the requirement of apportionment for income taxes. This is wrong. It never was removed." are also quite incorrect. The Court in Brushaber was very specific on the point that the Amendment did remove the requirement of apportionment (i.e., for income taxes deemed to be direct taxes).
The Stanton verbiage ("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") is what some legal scholars refer to as a "circumlocutory expression," and older court decisions are full of this kind of archaic language. This language means that the Sixteenth Amendment "prohibited" Congressional power (to tax INCOMES) from being limited by the "direct versus indirect" argument.
Nothing in the Sixteenth Amendment (or in Brushaber or Stanton) specifically and literally converted an indirect tax into a direct tax, or a direct tax into an indirect tax. What the Amendment did was to change the treatment of the "direct versus indirect" argument. What the Amendment did was make the distinction -- with respect to INCOME taxes -- constitutionally irrelevant. If you want to look at it another way, the Amendment forced us to treat direct taxes on income (taxes on income from property) the same way we treat indirect taxes on income (such as taxes on income from labor). Since the effective date of the Constitution in the late 1780s, we have always treated indirect taxes on income as NOT required to be "apportioned" among the states according to any "census or enumeration." After the Amendment, all income taxes are treated that way, whether direct or indirect.
In effect, the phrase "being placed in the category of direct taxation" means "being placed in the category of being treated as direct taxation subject to the requirement of apportionment as that requirement applied prior to being eliminated (with respect to income taxes) by the Sixteenth Amendment."
Before the Amendment (and even after Pollock) the Congress had the power under the Constitution to tax all incomes from whatever source, whether the tax was deemed direct or indirect. The source of the income determines whether the related tax is a direct tax or an excise (an indirect tax). The main limitation prior to the Amendment was that if the income tax was direct (e.g., a tax on income from property), the tax had to be apportioned. After the Sixteenth Amendment, direct taxes on income no longer have to be apportioned. That is part of the teaching of Brushaber and Stanton. Direct income taxes are still direct -- they just don't have to be apportioned any more. They're treated the same as indirect taxes.
Statements like "remuneration from private-sector work is not federally excise-taxable. This is the law, and it is actually how the Internal Revenue Code (IRC) and U.S. Title 26 are written." are both nonsensical and legally frivolous. The same is true for the statement "it cannot be imposed upon anything but either the exercise of federally-engendered PRIVILEGE *or* federally-SOURCED income." The verbiage "federally-engendered privilege" and "federally-sourced income" have no legal significance with respect to the power of Congress to impose income taxes. Similarly, the statement "Federal excise taxation of private-sector remuneration-for-labor is not constitutional" is false. Neither the Constitution (before or after the Sixteenth Amendment) nor any statute nor any case law has ever prohibited or limited the power of Congress to tax income from "private-sector remuneration-for-labor." Famspear 20:42, 23 December 2005 (UTC)
Comment from Flytrapper:
I would strongly encourage those interested in the truth regarding this landmark case to simply read it, and would also suggest that those who post comments about the case refrain from supposition and editorialization. The matter is quite clearly stated by the Court: "...the contention that the Amendment treats a tax on income as a direct tax although it is relieved from apportionment and is necessarily therefore not subject to the rule of uniformity as such rule only applies to taxes which are not direct, thus destroying the two great classifications which have been recognized and enforced from the beginning, is also wholly without foundation..."
This is not opinion. This is not a translation. These are the Court's own words. The contention that the Amendment treats a tax on income as a direct tax...is also wholly without foundation.
Brushaber undeniably holds that the Sixteenth Amendment is subject to the rule of uniformity.--Flytrapper 00:09, 9 May 2006 (UTC)

[edit] Misunderstandings

The wording seems to imply that a direct non apportioned tax is implemented. On a second reading it could be read as only describing excise taxes. It should be asserted that income taxes are indirect, that is why they need not be apportioned. See the !6th Amendment wiki for more on this.

New Misunderstanding Sighting: Recently, I've found some tax protesters pointing to this decision as the basis for a different reading on the law. In particular, the claim is that this decision permitted the US to tax nonresidents alien. Supposedly, Treasury Decision 2313 contained the following comments (I can find no reliable online sources for this however): "To collectors of internal revenue: Under the decision of the Supreme Court of the United States in the case of Brushaber v. Union Pacific Railway [sic] Co., decided January 24, 1916, it is hereby held that income accruing to nonresident aliens in the form of interest from the bonds and dividends on the stock of domestic corporations is subject to the income tax imposed by the act of October 3, 1913." The claim here is that Brushaber listed his residence as New York with his business in Manhattan; he was a citizen of New York and was not consequently a citizen of the United States. He was therefore a nonresident alien. Since the Brushaber decision does not refute these claims, the court treated him as a nonresident alien but he was subject to the right of taxation nonetheless and this reading is reinforced by TD2313. The trick, then, for these tax protesters is to prove that their sources of income derive from places not inside the United States (similar logic claims this, too) and since they are nonresident aliens of the U.S., they are not subject to taxation. The only way to be taxed, they say, is to work and live either in D.C, Puerto Rico or on federal grounds. 00:47, 14 April 2006 (UTC)

Dear fellow editors: Yes this reading is definitely full of misunderstandings. It's the usual tax protester nonsense.
First, nothing in the Brushaher decision granted, to the United States, the power to tax nonresidents aliens -- for the simple reason that the United States government would have already had that power prior to Brushaher and for the second reason that the power to tax nonresident aliens simply was not at issue in the case. From a legal standpoint, it matters not whether Mr. Brushaber was a citizen or a resident alien or a nonresident alien or an alien from Mars. He didn't raise the issue before the Supreme Court, the Supreme Court did not consider the issue, and the Supreme Court did not decide the issue. End of story.
Second, even assuming that the quote from Treasury Decision 2313 is accurate, nothing in that Treasury Decision would have granted, to the government, the power to tax non-resident aliens (for the same reason).
Third, the argument that if someone is a "citizen" of New York he or she "consequently" is not a "citizen" of the United States is completely nonsensical under U.S. law. Forget about tax law. You literally cannot be "citizen" of New York or any other state without being a United States citizen. Indeed, the law works completely the opposite: All persons born or naturalized in the United States and subject to the jurisdiction thereof ARE citizens of the United States, AND of the state wherein they reside. Period. Without getting into technicalities, if you were born here, you ARE a U.S. citizen unless you came under the cloak of some sort of diplomatic immunity (e.g., foreign diplomats). Same thing if you are a foreigner and you later become a naturalized U.S. citizen. Saying that you are "a citizen of New York but not a citizen of the United States" is literally "nonsensical" from the standpoint of American law.
Fourth, related to the point that there is no mention in the U.S. Supreme Court’s decision of Mr. Brushaber having raised these issues regarding citizenship in the case: The phrase "[s]ince the Brushaber decision does not refute these claims" would also be nonsensical - literally meaningless. It would be like saying that the court in the O.J. Simpson case did not refute the claim that the moon is made of green cheese, when the issue of whether the moon is made of green cheese was not raised in the Simpson case.
Fifth, there is absolutely no legal support for the patently ridiculous argument that the only way to be taxed, for Federal income tax purposes, is to live in the District of Columbia or Puerto Rico. What a laugh. Regards to all, Famspear 02:36, 14 April 2006 (UTC)

[edit] Unsigned comment moved from article.

I don't know who is responsible for providing the information within this article, but apparently they haven't read the Brushaber case, if they had, they would have noticed the following language:

"We are of opinion, however, [240 U.S. 1, 11] 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. . ."

Notice the Court's language of "erroneous"? Furthermore the "direct tax," unapportioned, was with respect to the source derived. A specific tax with general application. Read the case that you have hyperlinked on your own site.

[edit] Comments -- by Famspear -- on 10 May 2006 edits by Famspear

From Famspear To Flytrapper and all editors

Dear Flytrapper

In your recent edits you don't state what you feel is incorrect about the article as written. I have found no errors in the language that you deleted. I also argue that some of your edits are incorrect, as explained below.

You indicated that the Brushaber case is constantly misunderstood by "those who refer to constitutional adherents as tax protesters." I argue that your statement is incorrect.

First, tax protesters, to the extent they make arguments about the constitutionality of the tax, are generally arguing that the tax is unconstitutional. By definition, tax protester arguments on constitutionality are not only without legal merit, the arguments are also legally frivolous. This is not merely my position or conclusion. The courts have so ruled without exception for the past 30 years. Indeed, the frivolousness of the arguments is what makes them "tax protester arguments."

This is an astonishing record. Since 1975, when the term "tax protester" was first used in reported decisions in the way we're using it, I have not found and, to the best of my knowledge, no one else has ever found, a reported Federal court decision in which a tax protester argument was ever ruled to be correct. Every single time I have seen a passage in tax protester literature that says that the tax protesters won some particular tax protester argument, the claim has turned out to be false.

Second, the supposed "misunderstanding" you believe exist stems, you say, from the erroneous belief that the Brushaber decision relieves taxes on incomes from the rule of uniformity.

I agree that such a belief would certainly be erroneous -- there's just one problem with your statement. I have never heard anybody make the argument that the Brushaber court ruled that way! Not even the tax protesters make that kind of argument! You seem to be attributing the "misunderstanding" not to the tax protesters, but to those who disagree with the tax protesters (i.e., legal scholars, lawyers, CPAs, the courts, etc.)!

More specifically, the uniformity rule is the rule that excises (i.e., indirect taxes, such as income taxes other than taxes on income from property) must be imposed with geographical uniformity.

Obviously, the Brushaber court never ruled that excises do not have to be geographically uniform. Indeed, that was not even one of the issues presented to the court in the case.

The court did refer to the uniformity rule -- because Mr. Brushaber had talked about it in one of his arguments. But neither Mr. Brushaber nor the railroad company nor the government were really disagreeing about the point that the uniformity rule applies to excises.

It may not be obvious to you, but I assure you it's unlikely anybody (tax lawyer or tax protester) would argue that Brushaber stands for the proposition that excises do not have to be imposed with geographical uniformity. Again, I've never even heard a tax protester make that argument. (I'm not saying it's never happened -- it's just I can't remember ever seeing it, and more importantly it wouldn't make sense for tax protester or anyone else to argue that Brushaber stands for the proposition that Congress could impose an income tax in, say, only New York and Montana -- and not impose the same tax in all the other states.)

Bottom line: If legal scholars were to misunderstand Brushaber as ruling that excises did not have to be uniform, legal scholars would in effect be saying Brushaber stands for the proposition that Congress could validity enact an excise that was imposed only in some states but not others! I have studied the Federal income tax laws for 29 years and I cannot remember ever seeing anyone make such an argument, especially not a tax lawyer, CPA, law professor, or IRS employee. If someone has ever made such an argument, they would be in a very, very small minority.

Next, your comments in the talk page to the effect that the term "tax protester" shouldn't be used are, I argue, off base. "Tax protester" is a term that has negative connotations, and some people undoubtedly become very angry when the term is used to describe them. Congress in 1998 passed a law forbidding IRS employees from using the term in IRS documents.

However, using the term in Wikipedia does not violate the rule against non-neutral point of view. Indeed, "tax protester" is still a technical legal term used constantly by the courts to describe arguments against the Federal income tax that are not only legally meritless, but which have been repeatedly ruled meritless. When courts or others use the term "meritless" or "without merit" or "frivolous" to describe the tax protesters' arguments, that probably makes the protesters very angry as well. However, these are formal legal terms. In Wikipedia, we do not censor ourselves with respect to the use of legal terminology merely because the use of that terminology offends people. Sorry. (I note that you did not actually delete the term "tax protester" from the article itself, and I commend you on that.)

Regarding your statement that the Court's decisions repeatedly assert that income taxation inherently belongs in the category of indirect tax -- yes, this is very close to be correct. In Brushaber the court used terminology very close to that. However, the Court also said that it was not overturning the Pollock ruling that tax on income from one particular source -- namely, income from property -- was a direct tax. What the Brushaber court essentially said was that the Sixteenth Amendment made the dichotomy legally irrelevant. If you want, I can quote the exact wording from the decision.

I am currently working on the history of the Brushaber case and I may actually be making further edits on this article. You are correct that this decision is "misunderstood" -- however, I argue that your edits muddied the water a bit more, rather than clarifying.

Any comments? Yours, Famspear 20:30, 10 May 2006 (UTC)

Post-script from Famspear: I'd like to point out that many tax protesters have been unhappy with my edits here in Wikipedia. If I were simply trying to refute tax protester arguments, and if I wanted to support any argument that opposed tax protester arguments, it would have been easy for me not to question your statement that income taxation inherently belongs in the category of indirect tax. Indeed, the Brushaber court stated almost exactly that very thing. That statement would tend to support the assertion that an income tax law (after the 16th Amendment) is not subject to the rule of apportionment -- a rule of law which I know to be correct. Had I been dishonest, I could have simply let that statement stand in the article. But what the court was saying -- if you read the entire case -- was that the 16th Amendment did not change the Pollock ruling that income taxes on income from property were treated as direct taxes. The court was essentially saying that AS A GENERAL RULE ("generically" I think was the word the court used) an income tax is an excise, but that income taxes on income from property were still direct taxes -- because of Pollock. The Brushaber case, to be very specific, means in this context that IT NO LONGER MATTERS. The plain language of the Amendment says income taxes on income FROM WHATEVER SOURCE DERIVED (meaning income from property, income from labor, etc.,) may be imposed without apportionment, etc. Neither the amendment nor the court in Brushaber stated that income taxes on income from property were specifically re-denominated as indirect taxes in the way they were denominated prior to the Pollock decision.

Brushaber is a difficult case to read. It contains archaic language and periphrasis, or circumlocutory expression. It contains language that can certainly result in confusion. But I assure you that the meaning of Brushaber can be distilled if we study it long enough.

By the way, there is some argument that the Pollock decision -- that income taxes on income from property were direct taxes -- was essentially eviscerated by a decision rendered AFTER Brushaber. That is a separate point. In other words, you might make the argument that TODAY all income taxes are considered indirect taxes (I don't really care right now). I'm just saying that the Brushaber court did not make that specific ruling. Yours, Famspear 23:01, 10 May 2006 (UTC)


[edit] Comments -- by Flytrapper

Hey there, Famspear, thanks much for taking the time to state your case so clearly. Ironically, that is ultimately the problem I have with the article. Namely, that it is *your* case, and nowhere relies on specific cites from the Brushaber decision. While you do make convincing arguments in support of your interpretation, it is, nevertheless, an interpretation. I would think something striving to be an encyclopedia would be free from motivation and judgement, and rely specifically on that which is factually indisputable such as the text of the Court's decision.

You asked for specifics regarding the corrections I made to the article, and I do apologize for not having done so. I will attempt to rectify that here. In the first paragraph you state:

"and thus eliminated the need to determine whether the income tax was a direct tax or, alternatively, an excise (an indirect tax)."

This is completely false. Not only is there nothing anywhere in the Brushaber decision to support this belief, there is a clear an unequivocal refutation of such an interpretation:

"the contention that the Amendment treats a tax on income as a direct tax although it is relieved from apportionment and is necessarily therefore not subject to the rule of uniformity as such rule only applies to taxes which are not direct, thus destroying the two great classifications which have been recognized and enforced from the beginning, is also wholly without foundation"

The Brushaber decision in no way, shape or form relieves Congress from having to distinguish between direct and indirect taxes. The contention that the Amendment treats income tax as a direct tax is wholly without foundation. Brushaber, through the text of the Court's own writing, clearly supports that the ditinction between direct and indirect remains relevant.

This citation from the Court's ruling also completely contradicts the "Holding" section of the article, so that has been changed as well.

If you disagree with this reading, I would appreciate it if you would provide a citation from the Brushaber decision that I may have overlooked.

As for the term "tax protester", if you do mean to use it in the legal sense, then cite at least one case by directly quoting a Court decision that referred to a plaintiff as a "tax protester". Or, alternatively, if the IRS has such a legal classification, clarifying it as an IRS term would be helpful.

For what it's worth, you and I probably agree that the overwhelming majority (if not all) of those who have challenged the federal income tax in the courts have based their challenges on misguided interpretations of Brushaber and Stanton. The popular misinterpretation I have seen throughout these court cases is that Brushaber deemed the income tax to be an excise tax. This is not true, and those who argue it in court invariably lose. The income tax is an indirect tax. And an excise tax is an indirect tax. But it does not follow that income taxes are excise taxes. It would be like saying all beagles are dogs; all poodles are dogs; therefore all beagles are poodles. And perhaps *that* misunderstanding belongs in the article.

However, I still maintain that there is still an important legal distinction between direct and indirect, and that the Brushaber decision explicitly recognizes that distinction.

--68.230.194.50 18:05, 11 May 2006 (UTC)

If you seek court cases defining people as tax protesters [Flytrapper: I was not seeking them for my own edification - I was aware of the existence of the term. What I sought was inclusion of cites in the article. Thanks!!], this I can supply in abundance:
It is readily apparent that Hattman's appeal and "petitions" in this Court, as well as his petition for redetermination filed in the Tax Court, are nothing other than the thinly veiled arguments of a tax protester. These types of tax protester arguments have been rejected as patently frivolous, and require no additional analysis here.
Hattman v. Commissioner, NO. 05-1376 (3d Cir. 2005)
Some people believe with great fervor preposterous things that just happen to coincide with their self-interest. Tax protesters have convinced themselves that wages are not income, that only gold is money, that the Sixteenth Amendment is unconstitutional, and so on. These beliefs all lead--so tax protesters think--to the elimination of their obligation to pay taxes."
Coleman v. Commissioner, 791 F.2d 68, 69 (7th Cir. 1986).
Thomas is a tax protester, and one of his arguments is that he did not need to file tax returns because the sixteenth amendment is not part of the constitution.
United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986), cert. den. 107 S.Ct. 187 (1986):
See also United States v. Scott, 521 F.2d 1188 (9th Cir. 1975) (first case to describe persons who refuse to pay taxes based on flawed constitutional arguments as tax protesters).
Cheers! BD2412 T 18:38, 11 May 2006 (UTC)

Dear Flytrapper: Thanks for your comments. No offense, but we just aren't buying it. At any rate, as I previously said I am going to be working on some revision to the article, so I'll just let it rest for now (although I am contending that your verbiage is simply incorrect and mine is correct).

For now, you might want to be thinking about the following in connection with the article: You are contending that the language "and thus eliminated the need to determine whether the income tax was a direct tax or, alternatively, an excise (an indirect tax)" is completely false. Without getting back into what the court in Brushaber said at this point (we'll deal with it later, though), you might want to think about the implications of what you are saying. If there were still a need, in enacting Federal income tax legislation, to determine whether a particular income tax was "direct" or "indirect," why isn't this being done?

You say that the Brushaber decision "in no way, shape or form relieves Congress from having to distinguish between direct and indirect taxes. The contention that the Amendment treats income tax as a direct tax is wholly without foundation." If that were correct, why hasn't Congress been doing any "distinguishing" since 1913?

Since 1913, for example, income taxes on rental income, interest income, and dividend income have not been apportioned among the states according to population. Those are the classic examples of "income from property" that were ruled to be "direct taxes" in Pollock. How do you explain the fact that after the Sixteenth Amendment, we're not apportioning those taxes? We also don't apportion income taxes on income from wages. So, with respect to the lack of the need for apportionment, all those kinds of taxes are being treated the same. So, how is is that we are treating those kinds of income taxes the same as the income tax on wages, salaries, etc.? How do you explain that? If there were still a constitutional "need" to determine whether a particular kind of income tax is direct or indirect, how is it that the source of the income (whether from property or from labor) has not been considered in any tax legislation since 1913?

And how is it that every time a tax protester raises arguments about the Sixteenth Amendment, the tax protester loses? If you were correct, why wouldn't someone have won a case on your argument? Why is it that you don't see Congressman or the staff people that write the tax statutes saying "Oh, gee, we need to apportion interest income among the states according to population"?

You say you "still maintain that there is still an important legal distinction between direct and indirect, and that the Brushaber decision explicitly recognizes that distinction." If that were correct, why is it that 99.9999% of all the tax lawyers, the CPAs, the law professors, the Congressman, etc., have not recognized that "important legal distinction"? Do you really believe that there is a gigantic conspiracy? Do you really believe that the tax protesters, without formal legal or tax training, have figured it all out, and that 99.9999% of all tax lawyers, CPAs, law professors, etc. -- literally hundreds of thousands of people since 1913 -- are somehow "wrong" because they can't figure it out, or are somehow in some sort of conspiracy to protect their economic interests? What's your theory?

You say that the "popular misinterpretation I have seen throughout these court cases is that Brushaber deemed the income tax to be an excise tax." Again, it appears you're getting hung up on the periphrasis found in the case -- which, admittedly can be massively confusing. (I think I am going to address the problem of understanding circumlocutory expression in the text of the case as I work on the rewrite for the article.)

Regarding your request that, for the term "tax protester," I cite to at least one case by directly quoting a Court decision that referred to a plaintiff as a "tax protester" -- you've got to be kidding! Do you have any idea how easy it was for BD2412 to find those quotes? Are you serious?

Look, I recently found a Wikipedia edit by a tax protester who stated flatly (obviously without having done the slightest bit of homework) that the "Internal Revenue Code" contained no reference to the agency known as the Internal Revenue Service. In short order, I was able to come up with over seventy specific references to "Internal Revenue Service" in the Internal Revenue Code (at last count, I had eventually found over 90 such references, plus numerous references to the agency in other titles of the United States Code).

I'm sorry, but I just can't resist this one. Look if you still want more even after BD2412's reply, I can provide you with a list of cases where the courts have specifically either referred to the taxpayer (whether plaintiff, petitioner, defendant, or whatever), as a "tax protester" or referred to the arguments he/she made as "tax protester" arguments. It's gonna be a pretty long list. It averages 50 to 70 or so Federal cases a year in the last few years. Sorry, but "tax protester" is a very commonly used term in the texts of court decisions -- and it's used in connection with what the courts have ruled are legally frivolous arguments. Let me know if you really want the list!

Regarding the IRS let me know if you really want to see the provision from the 1998 statute that prohibited IRS employees from using the term "tax protester."

I assume from your comments that you really didn't realize that the term "tax protester" was a specific legal term in the United States. Does this mean that you don't have access to the case law, or that you haven't had a chance to read it? Even if you're not a lawyer or CPA, you should at least have access to U.S. Supreme Court decisions. They're available on www.findlaw.com. You can find at least one "tax protester" case there yourself, because the Supreme Court uses the term!

Regarding the case law, I am just curious. I assume you have actually read the entire Brushaber decision, since you do quote from it, and it's available for free on the internet. Why do you think you have not been able to find single a case after 1913 where a court ruled that a Federal income tax was unconstitutional because it wasn't apportioned? Do you think you'll ever find such a case after the Sixteenth Amendment?

Revision of the article is just one of my projects, so it will take awhile. Again, thanks for your input. Yours, Famspear 23:35, 11 May 2006 (UTC)

PS: Dear Flytrapper. I'd also like to address more of your comments. Let's read some of your statements again (I have added some bolding to some of your comments):
Brushaber decision in no way, shape or form relieves Congress from having to distinguish between direct and indirect taxes. The contention that the Amendment treats income tax as a direct tax is wholly without foundation. Brushaber, through the text of the Court's own writing, clearly supports that the ditinction [sic] between direct and indirect remains relevant.
Later on, you say:
The income tax is an indirect tax. And an excise tax is an indirect tax. But it does not follow that income taxes are excise taxes. It would be like saying all beagles are dogs; all poodles are dogs; therefore all beagles are poodles.
I sort of agree with your statement that the Amendment -- the Amendment itself -- does not treat income tax as a direct tax, if that's what you're really saying. I am not arguing that the Sixteenth Amendment itself "treats" an income tax as a direct tax, or that the Amendment expressly treats an income tax as an indirect tax either (although you can argue that the effect of the Amendment is to treat all income taxes as though they were indirect and therefore not required to be apportioned). The key is that it's the Pollock decision that treated certain income taxes as direct taxes (and therefore subject to the apportionment rule).
The Sixteenth Amendment simply changed the legal effect of Pollock -- by making the apportionment requirement irrelevant and inapplicable to any and all income taxes, regardless of the source of the income, and regardless of whether any particular income tax is a "direct" tax or not. The Amendment basically says that Congress may impose taxes on incomes from whatever source derived without having to apportion the total dollar amount collected from the taxpayers of each state according to that state's pro-rata share of population as determined by the "census or enumeration" mentioned in the Constitution.
The Amendment does not say Congress shall have power to imposes taxes on incomes as long as we first figure out whether those taxes are direct taxes, or indirect taxes, or upside down taxes, or left taxes, or right taxes or any other kind of taxes. The Amendment does not say that it covers "just income taxes that are direct taxes," or "just income taxes that are indirect taxes." For income taxes, the "direct versus indirect" distinction is legally irrelevant under the plain language of the Sixteenth Amendment. [Famspear notation: Actually, this statement of mine is too broad; I should have said "For income taxes, the direct versus indirect distinction is legally irrelevant under the plain language of the Sixteenth Amendment with respect to what the Sixteenth Amendment is about -- which is the apportionment rule, not the uniformity rule. Yours, Famspear 22:11, 14 June 2006 (UTC)]
The key is that you're saying that the income tax is an indirect tax. Are you saying that all income taxes are treated as indirect taxes? Because if you are, then that also blows away your argument that after the Sixteenth Amendment, the dichotomy between direct and indirect taxes is somehow still relevant or important for income taxes. [Flytrapper: my argument was that the dichotomy is still relevant for ALL taxes - indirect taxes must be uniform; direct taxes must be apportioned - and this is all I have ever really argued - and Brushaber supports it.] [Famspear reply: Dear Flytrapper, you are correct that indirect taxes must be uniform. That has always been correct, both before and after the ratification of the Sixteenth Amendment. After the Amendment, however, the apportionment rule applies only to "direct taxes that do not happen to be income taxes." The apportionment rule, after the Sixteenth Amendment, no longer applies to any income taxes. Yours, Famspear 22:11, 14 June 2006 (UTC)]
Remember, indirect taxes are subject to the rule of geographical uniformity, not to the rule of apportionment. If all income taxes are (or are treated as) indirect taxes, then the apportionment rule no longer applies to any income taxes at all. "Apportionment among the states according to population" is a requirement only for direct taxes. Certainly, I agree that the current U.S. constitutional law is that the apportionment rule no longer applies to any kind of income taxes at all!
The problem for tax protesters is that if your statement that "the income tax is an indirect tax" is correct, then how are tax protesters going to claim that the income tax violates the constitution? They can't argue that an indirect tax has to be apportioned. The apportionment rule applies only to direct taxes.
To maintain credibility, the tax protesters can argue only that an indirect tax must be geographically uniform. How would they credibly argue that the income tax is not geographically uniform (i.e., that it is not being imposed all over the country)? Has anyone ever argued that any tax statute was applicable ONLY IN NEW YORK AND MONTANA, for example? Or ONLY IN STATES EAST OF THE MISSISSIPPI? Has anyone ever found any such language in a tax statute? Has anyone ever discovered a single state in the United States of America where the government says the Federal income tax does not apply? If anything, some tax protesters argue that the income tax is invalid because it IS being imposed all over the country -- not that it ISN'T! Whether you believe the income tax is being imposed validly or correctly or not, I suspect that almost no one (tax protester or otherwise) has tried to argue that it's not currently being imposed everywhere in the United States of America!
Of course, since all income taxes either are indirect taxes or are treated as indirect taxes (since all income taxes are subject to the geographical uniformity rule, and no income taxes have to be apportioned), then the tax protesters are stuck!
If there is such a thing as "an income tax that is a direct tax," it's still an income tax. If there is such a thing as "an income tax that is an indirect tax," it is still an income tax. The Sixteenth Amendment does not say that the Amendment applies "only to income taxes that happen to be direct taxes." The Sixteenth Amendment does not say "only income taxes that happen to be indirect taxes." The Sixteenth Amendment does not say "only income taxes on income that happens to be from certain sources." The Sixteenth Amendment does not say "only income taxes on income from property." The Sixteenth Amendment does not say "only income taxes on income from wages." The Sixteenth Amendment does not say "only income taxes that happen to be excises." The Sixteenth amendment does not say "only income taxes that are not excises." Go back and read the text of the Sixteenth Amendment. If it's an income tax, then the Sixteenth Amendment applies. This is not rocket science.
No Federal income tax statute (before, during, or after 1913) has ever apportioned income taxes among the states according to each state's population. So, ask yourself why you have not been able to find even one court decision since 1913 where, because of a lack of apportionment, a taxpayer was able to get a Federal income tax ruled unconstitutional. If you really believe that "Brushaber, through the text of the Court's own writing, clearly supports that the ditinction [sic] between direct and indirect remains relevant", ask yourself why you have not been able to find even a single court decision since 1913 where a taxpayer was successful in getting a tax statute ruled unconstitutional based on such a "distinction." Yours, Famspear 21:48, 12 May 2006 (UTC)


Hey there, Famspear! Yowza!! Looks like we might be talking past each other, because I certainly ain't selling what you claim not to be buying! :^)

In one case, the confusion is clearly my fault - when I brought up the point about citing cases or the IRS regarding the term "tax protester", I did not mean to challenge its existence, though I can see how it would read that way. My point was that it might be helpful to include those cites in the article. Otherwise the term "tax protester" comes across as a generalization. My apologies for not being clear, there.

On to your other comments. Most of what you say early in your recent comments seems to support the notion that popularity necessitates legality, but then you get to a much clearer point in the PS section. And I think we reach agreement there. But to quickly address this "99.999% endorse it so it is legal/constitutional" argument - what majority of people endorsing that which is factually incorrect is necessary to make a false thing true? Was the world once flat? Does Congress truly have the power to cede its War Declaration powers to the President? The point of these questions is NOT to shed any light on the validity or uselessness of my claims pertaining to the Brushaber case, but rather to suggest that our disagreement might be better served by sticking to what you and I can or cannot demonstrate by appealing to evidence, rather than what might be bogus interpretations of other people, whether they are lawyers, CPAs, or tax protesters.

Anyway, enough of that. :^) Back to OUR discussion. It seems to me that you think I think the Sixteenth Amendment is unconstitutional. I do not think that. Nor do I believe that any federal income tax on wages is unconstitutional. I get the sense that you do think I believe otherwise. If I have misread you, I apologize, but if true, I think this is the danger of throwing around terms like "tax protester" because while I might "protest" the current application of the federal income tax, the term "tax protester" has been applied by the Courts and the IRS largely in a pejorative manner to dismiss all such "protests" as "frivolous".

I have the *same* question you do: why has there not yet been a case brought challenging the uniformity of the federal income tax? Does "uniform" only mean "the same for all states"? Does a uniform lack of uniformity constitute uniformity? :^) That is, if the federal income tax were simplified to be "13% for anyone under 6 feet in height and 42% for anyone over 6 feet in height" and uniformly applied to all states, would that satisfy the uniformity requirement? I am not saying one way or the other. It might. Certainly there would be an Equal Protection problem, but what is truly meant by "Uniformity" in the context of indirect taxes?

In any case, this is all rather tangential to Brushaber. My original problem with the article was what I saw as a clear bias toward the belief that Brushaber establishes that any and all application of the federal income tax is constitutional, without any regard to uniformity, and that anyone who does not interpret Brushaber as you do is a frivolous "tax protester". It seems to me that Wikipedia articles should be bias-free, and your original article does more than just report the facts about Brushaber. I will admit that my reaction to that was not as clear-headed as it should have been, and my edits are also not without bias. Ideally, if you have any interest in doing so, we could collaborate on a re-write that tries to achieve impartiality. Or we can agree to disagree and keep reverting the article every couple of days. :^)

Thanks for your time and contribution. It has made me investigate this issue more thoroughly, and I appreciate that. --128.239.105.60 14:28, 18 May 2006 (UTC)


Dear Flytrapper: Just a note -- I haven't forgotten about our Brushaber discussion. "Real life" has pulled me away from Wikipedia a lot lately. Eventually, however, I do want to do a complete analysis of all the holdings in Brushaber. It's just gonna take a while to get to it. As an aside, since you have been interested in the concept of the uniformity clause, we might want to do something on that as well. If you want to take a stab at analyzing the case law on uniformity, be my guest. Maybe any "article-quality" discussion we come up with on uniformity should go in a separate article - I'm not sure. Anyway, stay tuned. I have just made some provisional edits to the Brushaber article to try to at least get the article to something we can both agree on for the time being. Please check it out and see what you think.
I put in a separate section on your point about uniformity.
I also changed the sections on the holding(s). In this case, as in many court cases, there are actually multiple holdings, so this will be greatly modified later. As you may know, a mere quote from a court decision does not constitute a statement of a "holding" or ruling in the case.
On another point, the verbiage implying that "tax protesters" are "constitutional adherents" simply does not belong in an encyclopedia article. By definition, tax protester arguments are not only incorrect from a legal standpoint, the arguments are often ruled legally "frivolous." Many tax protesters of course in effect argue that they are following the constitution, but what the constitution means is a matter of law. As a matter of law, under the U.S. legal system only the courts are authoritative on what the constitution means when a case is actually litigated.
Further, the reference to those who refer to "constitutional adherents" as "tax protesters" as somehow "misunderstanding" Brushaber as standing for the proposition that indirect taxes don't have to be uniform is simply incorrect. As far as I know, no reputable legal scholar has ever tried to make that argument. The arguments between legal scholars and tax protesters (with respect to 16th Amnd & Brushaber) are almost always about apportionment -- not uniformity.
Also, I understand your point about direct taxes and indirect taxes and constitutional relevancy. In a few places, I had made the blanket statement that the dichotomy was no longer relevant, and that was theoretically incorrect. What I meant was that the dichotomy was no longer relevant in the context of the apportionment rule -- which is what the big battle was about in Pollock, resulting in the Sixteenth Amendment and cases like Brushaber. For example, I agree that the direct-indirect dichotomy could theoretically be relevant if the Congress were to try to impose an indirect tax that was not geographically uniform (to use the example I had used, an indirect tax imposed only in New York and Montana). I should have been more precise about what I was saying. Yours, Famspear 20:35, 14 June 2006 (UTC)

Dear Flytrapper, regarding your coments where you say that early some of my comments, I seem to be supporting "the notion that popularity necessitates legality" - well, no, what I am saying is that the courts have uniformly ruled a certain way. Tax protesters, as a group, contend that the courts are somehow "wrong." Under the U.S. legal system, the law is what the courts say the law is, not what I say the law is, not what the tax protesters say the law is. Tax protesters as a group repeatedly say that 99.99999% of legal experts are wrong. I am reporting that this is a very common tax protester position, so it's not me saying that popularity of a particular view of the law necessitates the legality of that position. Again, the law is what the courts rule that the law is.

Regarding the following commentary:

[...] why has there not yet been a case brought challenging the uniformity of the federal income tax? Does "uniform" only mean "the same for all states"? Does a uniform lack of uniformity constitute uniformity? :^) That is, if the federal income tax were simplified to be "13% for anyone under 6 feet in height and 42% for anyone over 6 feet in height" and uniformly applied to all states, would that satisfy the uniformity requirement? I am not saying one way or the other. It might. Certainly there would be an Equal Protection problem, but what is truly meant by "Uniformity" in the context of indirect taxes?

Actually, there have been some cases where people challenged the Federal income tax, arguing that it is not "uniform." In every case, the courts rejected the arguments. What I am saying is that I know of no case where anyone actually argued that the tax was not imposed with geographical uniformity, which is what the courts have ruled the uniformity clause requires. There might be such a case out there -- I'm saying I haven't researched the details of every case yet. I kinda think very few sane people would try to argue that the Federal income tax isn't at least being imposed everywhere in the fifty states and the District of Columbia, but maybe someone somewhere has tried to make such an argument. I'm saying that regardless of what theory anyone has ever used, to my knowledge no Federal court has ever ruled that any Federal income tax violates the uniformity clause.

Regarding your last question in the quoted material, the courts have (as far as I know) always ruled that "uniformity" means "geographical" uniformity and not "intrinsic" uniformity, to use the courts' terms. The "13% for anyone under 6 feet" etc., hypothetical that you gave might not be a violation of uniformity -- but maybe you might want to study all the leading Federal cases on the uniformity clause for a more definite answer, if there is one.

Yours, Famspear 22:11, 14 June 2006 (UTC)

Footnote: Also, I have added a description of the Court's holding on the the validity of the income tax law under the uniformity clause. The court in Brushaber did not rule that the Sixteenth Amendment is "subject to" the uniformity clause. What the court ruled was that the tax statute in question did not violate the uniformity clause. The Court in Brushaber did not rule that the uniformity clause no longer applies to indirect taxes (excises), and I know of no other case where a court has made any such ruling. Yours, Famspear 22:34, 14 June 2006 (UTC)

[edit] Backround material moved to separate article

Dear fellow editors: I have moved a large chunk of this article to the article on the Sixteenth Amendment to the United States Constitution. The bulk of the discussion that I moved really relates to the genesis of the Sixteenth Amendment, and not to the Brushaber case in particular. Yours, Famspear 21:42, 25 July 2006 (UTC)

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