In the last week or so, a dozen people have called to ask me what I thought about your "blockbuster" news respecting the failure-to-file-a-return is not a crime "conspiracy" allegedly revealed during oral argument in the recent Craft U.S. Supreme Court case.

My pet peeve in the entire 12 years I have been in the Freedom Movement has been individuals therein who, although seemingly well-intentioned, come up with false arguments and theories, and then spread those false arguments and theories amongst the unwary in the Freedom Movement.

I presume that you have read the Craft transcript which you have posted on your own website. If you did, then it is unconscionable for you to reproduce the brief excerpt from it that you have as "proof" that the Supreme Court is engaged in a "conspiracy" to hide the fact that "failure to file is not a crime."

For your easier reference, I will herein reproduce the excerpts from the Craft oral argument transcript which your website contains, and what now hundreds of e-mails and postings that have copied you contain. Immediately thereafter, I will reproduce the excerpts from the Craft oral argument transcript which prove that your allegation is utterly false and totally misleading.

At the bottom of page six of the attached transcript of the oral arguments at the Supreme court in the case of US v. Sandra L. Craft (case # 00-1831), Chief Justice Rehnquist and the United States attorney (Kent Jones) discuss that there is no statute that makes it a crime for "failure to file" an income tax return:

"I'm not familiar with a statute that makes that a crime by itself" ..."but the fact that you didn't file...frankly...it's my impression that that would not by itself be a crime".

"We'd better not let the word get out" ..."We'll keep it just among ourselves"...

...and they have the nerve to laugh about it! The attorney then defers all Title 18 (??) questions to Justice Kennedy. The case was found for the government, an example of courts creating (changing, in this case) law.

Now, Family Guardian Website, here is what the relevant part of the Craft oral argument transcript actually stated, with emphasis added in the appropriate places:

QUESTION: Mr. Jones, as part of the background, how did it come about that it's only the taxpayer who has the liability? Did she file separate returns, or was she an innocent spouse?

MR. JONES: In this case, the taxpayer is the husband. The husband was an attorney, and he filed no return, and when -- there's two ways for this issue to come up. Either spouse may file either no return, or file only a separate return. It's only when they file a joint return that they are jointly and severally liable for the tax obligation, so if, as in this case, the taxpayer simply files no return at all, then the obligation is exclusively that -- the tax obligation is that of the nonfiler, in this case the husband. 

Indeed, Judge Ryan pointed out in his separate opinion that the decision of this Court, of the court of appeals is very amenable to abuse, because on this theory both spouses can earn income, neither of them can file a return, or they can both file a separate return, and then they can put all of their real and personal property in a tenancy by the entirety, including stocks and bonds in States like Michigan and Maryland, and claim a complete exemption of all of their property from Federal tax obligations.

MR. JONES: There are some penalties, but the penalties, like taxes, have to be enforced against the property of the taxpayer, and if the taxpayer is allowed to exempt all of its property in this fashion, then there's literally no way that the taxes can be enforced through civil procedures.

QUESTION: What about criminal procedures? Are there any criminal procedures for --

QUESTION: -- failure, continued failure to file -- 

MR. JONES: Of course, if you file a return, then you're not exposing yourself to any criminal obligations, and if you don't file a return, it would be -- I'm not familiar with a statute that makes that a crime by itself. Now, it may be that it's a crime in connection with some intent to conceal, but just the fact that you didn't file -- I'm not -- frankly, I'm not -- even though I come before the Court on tax cases, I'm not an expert on criminal tax matters, but it's my impression that that would not by itself be a crime.

QUESTION: We'd better not let the word get out. I thought that it was a crime, but I'll check.

QUESTION: Do we know as a matter of fact what her situation was? Did she not file also? Did she file a separate return?

MR. JONES: I don't know whether she had any income of her own. I don't know whether she was required to, whether she did file a return -- this case does not involve this -- the wife's taxes. It involves the half-million dollars of taxes of the husband.

Your commentary, and its resulting conclusion, Family Guardian Website, is flawed for the following reasons:

1. Chief Justice Rehnquist is obviously NOT the one who is engaging in the dialogue with Mr. Jones, for the reason explained below. You presumed that, because Rehnquist's name is the only Justice mentioned as speaking (at the very start of the proceedings), that he is the only Justice asking a "QUESTION."

You apparently did not know that Supreme Court custom is that no Justice is specifically linked with a particular comment or question by the court reporter. The Chief Justice opens oral arguments and begins the proceedings on the record. After that, and until the close of the proceeding, any Justice could be the one asking a "QUESTION." On some news reports, you may hear or read of a particular Justice making a comment or asking a question, but that is because that information is coming from someone in the media who personally observed the proceedings.

2. Mr. Jones, although admittedly not a expert on criminal tax matters, is actually correct--and anyone who has been in the Freedom Movement more than 48 hours knows why he is correct. In order to be convicted for a I.R.C. section 7203 charge, the government must prove THREE elements beyond a reasonable doubt:

The Supreme Court itself has said one is "willful" if he commits "an intentional violation of a known legal duty." In other words, the government must prove you believed you were required to file, and yet you consciously and deliberately did not do so.

If the government can prove only element number one, that no return was filed, then it will not have met its burden of proof, and the defense can move for a directed verdict of acquittal. So, given the foregoing, why do you claim it is a "conspiracy," or even newsworthy, that mere failure to file a return is NOT a crime?

3. It was actually Justice Kennedy, not Chief Justice Rehnquist, who was asking the relevant questions of Mr. Jones. Mr. Jones jestingly says he will "refer all questions on Title 18 to Justice Kennedy." Title 18 of the United States Code is the Criminal Code, as you must know. This comment does show Mr. Jones's lack of criminal tax expertise, as the willful failure to file crime is contained in Title 26, section 7203. Mr. Jones obviously will "refer" criminal tax questions to Justice Kennedy because it can reasonably be inferred that it was Justice Kennedy who was the one who "thought it (not filing a return) was a crime, but I'll check." If and when Justice Kennedy checks, he will see Mr. Jones was actually correct, for the reasons I stated in the previous paragraph.

4. Put into the proper context, as I have done here, you can see that the "conspiracy" comments of "we'd better not let the word get out" and "we'll keep it just among ourselves," were nothing more than a few lawyers (some in robes and some not) having a few chuckles at "the bar" of the Supreme Court.

Your website comments on the Craft "conspiracy" have misled quite a few people. I have no doubt that some will now attempt to use this "conspiracy" as their "proof" to show the IRS how they are not required to file.

As an individual visible in the Freedom Movement, one who has a number of followers, you have an obligation to yourself, and to others visible in the Freedom Movement, to not knowingly disseminate false information and theories. Please do the right thing and let people know that you jumped the gun in error.

Ed Bruning

Copyright Family Guardian Fellowship