by Kedar R. Cohen

Contrary to popular opinion The United States of America does not have an income tax. What we have by virtue of the 16 Amendment is a tax on income and in some of the states taxation of income. In the law every word is significant. People v. Long, 220 Cal. Rptr. 312 (1986). The words on and of mean in reference to or respect to or relating to. So tax on income means a tax in reference to, respect to or relating to income.

According to the constitution there are only four types of taxes and they are: Taxes, Duties, Imposts and Excises. Taxes being direct taxes. Duties and Imposts relate to Imports into the country and specifically taxed in the statutes. Excises are on privileged revenue taxable activities. The subject of direct taxes are people and property. The subjects of duties, imposts and excises are happenings or activities. Income however defined under the constitution can never be the subject of any constitutional tax. The American income tax has always be considered to be an excise tax as reflected by Pollock v. Farmers' Loan and Trust Co., 158 U.S. 601 (1895), Brushaber v. Union Pacific Railroad Co., 240 U.S. 1 (1916).

The Revenue Tax Act of 1916 attempted to tax cash and stock dividends as income, thereby attempting to define income. Eisner v. MaComber, 252 U.S. 189, 206 (1920) said:  

"Congress cannot by any definition it may adopt conclude the matter, since it cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised."  

This decision said cash dividends are income and can be taxed as income but rejected the notion that stock dividends are not income but did classify stock dividends as property which is not the subject of an income tax. This decision also defined income as on page 207: 

"Doyle v. Mitchell Bros. Co., 247 U.S. 179, 185)--"Income may be defined as the gain derived from capital, from labor, or from both combined;" provided it be understood to include profit gained through a sale or conversion of capital assets, to which it was applied in the Doyle Case (pp.183, 185).

Brief as it is, it indicates the characteristic and distinguishing attribute of income essential for a correct solution of the present controversy. The Government, although basing it's argument upon the definition as quoted, placed chief emphasis' upon the word "gain," which was extended to include a variety of meanings; while the significance of the next three words was either overlooked or misconceived. ''Derived--from--Capital"; "the gain--derived--from--capital," etc. Here we have the essential. matter: not a gain accruing to capital, not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested or employed, and Coming in, being "derived" that is, received or drawn by the recipient (the taxpayer) for his separate use, benefit and disposal;--that is income derived from property. Nothing else answers the description.

Income is gain or profit separated from capital. Since this case is about a corporation, cash dividends or stock dividends, we can further define income as corporate gain or profit separated from capital. There is no other definition of income, period."

[Bolded, Italized and underlined statements are not part of of the opinion.KRC]

Now on Dauberger, Appeals of Fred R. , et al. v. State Board of Equalization of California 117, (March 31, 1982) they cite Lonsdale v. Commissioner 661 F.2d 71 (5th Cir. 1981) as saying since compensation in whatever form, including wages for services, constitutes taxable income. They actually used Lonsdale to overrule Eisner. Notice by the citations, Eisner is a supreme court case and Lonsdale is a Circuit Court case. Have you ever heard of a lower court opinion overruling a higher court opinion? Don't ever let any judge tell you a lower court opinion can overrule a higher court opinion such as Lonsdale overruling Eisner. Dauberger is considered a tax protestor tax case but there is one good thing that came from that case on page 122 where it says: 

"the California income tax is not a tax on property, but rather, a tax on income and merely uses dollars to measure the amount of income."

Proceeding from the proposition that property is not the subject of the income tax, 

"This right of a citizen to pursue any ca1ling, business, or profession he may choose is a property right to be guarded by equity as zealously as any other form of property. (See Dent v. West Virginia, 129 U. S. 114, [32 L.Ed. 623, 9 Sup. Ct. Rep. 2311.) "Labor is property. The laborer has the same right to sell his labor, and to contract with reference thereto, as any other property owner," New Method Laundry Co. v. MacCann, 174 Cal. 26, 31 (1916).

 This opinion also echoes another supreme court case 

"Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that, 'The property which every man has is his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of the most sacred property." Butcher' Union Co. v. Crescent City Co., 111 U.S. 746, 756-757.

Another important case upholding property rights as an unalienable right is The People v. Noel Davenport, 30 C.A.2d 292 (1937). This case declared a regulatory law unconstitutional that required him to request permission to sell stock which he owned and to have a brokers license to buy stock and later sell it at a profit which he also owned. This case recognized Davenport had the unalienable right to acquire and possess property which also includes the right to dispose of the same property. It recognized this right to property is not only recognized by most state constitutions Article 1, Section 1 which in California says: 

"all men are by nature free and independent, and have certain inalienable rights, amongst which are those of enjoying and defending life and liberty, acquiring possession, protecting property, and pursuing and obtaining safety and happiness." 

This court also upheld the right to property as a natural right where it said: 

"These rights are in fact inherent in every natural person and do not depend on constitutional grant or guaranty."

If labor is a right and not a privilege, then what are privileges? Privileges are those activities subject to the police power of the state. In Ex Parte Charles F. Drexel, on Habeas Corpus 147 Cal 763, 764-765 (1905) it says:

  "(Citing many cases.) And the court further declare that a statute prohibiting, regulating, or interfering with private business can be upheld only under the police power, and that the police power can be rightfully exercised only when the statute in question is for the protection of the public safety, the public health, or the public morals. Its language on this subject is as follows:

"It has been repeatedly held that the only authority which a state or municipality has for enacting legislation of this [765] character grows out of what is known as its 'police power.' This has been generally defined to be that power which a state or municipality has to enact laws or ordinances which pertain to the public safety, the public health, or the public morals. The proposition above stated is so universally recognized that it does not require the citation of authorities. It follow; therefore, that, unless the statute in question is one which in some way provides for the public safety, pertains to the public health, or concerns the public morals, it is not a valid exercise of the police power." (Citing many cases.)

It is from this idea of the police power as understood above that certain activities are declared to be privileges, get licensed and occasionally recognized in revenue laws as revenue taxable activities. Some of these revenue taxable activities are Corporate gains or profits legally called "income", alcohol, tobacco, firearms, wagering, lotteries, insurance, air transportation, refined petroleum products, etc. Notice that all of these activities do inherently violate public safety, public health or public morals. Insurance for example is really nothing more than legalized regulated and licensed wagering. With insurance you are betting that if some particular calamity befalls you, you will be compensated and if the calamity does not happen, you just paid good money for nothing. Tell me that is not wagering. Most common occupations never violate public safety, public health or public morals and therefore must be innocent and harmless activities and therefore cannot be regulated or taxed. The exercise of a right can never be taxed. Excises only tax privileges.

If labor is property and property is not the subject of the income tax, why are wages subjected to withholding taxes? You the worker have actually volunteered to the withholding tax. When you were employed, your boss requested from you your tax identifying number most commonly called the social security number and you also signed under penalty of perjury a W4 form where you again filled in your social security number. When you gave that number and form, you told your employer under penalty of perjury that you were subject to the public salary tax act of 1939 and that you are an employee as defined in 26 USC 3401(a) and that you were to be paid wages 26 USC 3401(c). You also told your employer that you were a taxpayer as defined in 26 USC 1313(b) and 26 USC 7701(a)(14). And that your compensation was to be considered Gross Income as defined in 26 USC 61.

At this point you may object that you volunteered to give your number and a W4, you might say the boss insisted on it and told you it was the law, do it or not be hired. Your boss acted out of fear of the IRS. The Internal Revenue Code though has no section in it that actually requires your social security number or other tax identification number. If your boss or prospective boss refuses to hire or employ you for refusing to give your number, he does so under his own authority and no legal authority whatsoever and can be held legally accountable if you decide to sue for damages. To fully inform your boss of the law and your right to 100% payment of work performed, you can submit to him my HIRE OR EMPLOYMENT KIT. If you want a work contract for 100% payment of work performed, and no W2 or 1099, you can also get my HIRE CONTRACT. This contract does not require your boss to not file a W2 or 1099 but simply informs him that payments for work performed are property and excludable from gross income and that filing W2s and 1099 are used only to report payments included in Gross Income. If he chooses to report his payments for work you performed as Gross Income, he is committing perjury, fraud and constructive fraud and can be held legally accountable for reporting this.

When you do not give your Tax ID number such as your social security number and decline to give a W4 or W9 taxpayer form, your boss has no legal authority to declare you a person subject to or liable for any revenue tax or statutory taxpayer and if he proceeds to treat you as such, he does so with no authority at law. It is my hope that the HIRE KIT AND HIRE CONTRACT are used to educate both the worker and employer. The information is legally accurate and it is up to workers and employers to make it work. Some of the court cases cited in this article are also available from me.

In conclusion, working for a living is not a revenue taxable activity because work that does not endanger public safety, public health or public morals is by definition innocent and harmless and therefore not subject to any excise tax. The United States of America does not have an income tax which would be unconstitutional because income is never and can never be the subject of any direct or indirect tax. What we have in this country is a tax on income which is constitutional because it is a duty, impost and excise tax. Gross Income can only come from three sources:

  1. Corporate gain or profit separated from capital
  2. or from a foreign source outside the United States by an Act of Congress with or without a tax treaty with another country
  3. or derived from some revenue taxable activity (receipt of income by a citizen, by the way, is not a revenue taxable activity and does not fall under the classification of either an "indirect tax" OR an "excise tax").  

Don't let any corrupt judge who is bribed by your federal tax dollars tell you otherwise!  Remember, all judges were lawyers at one time or another.  Who trusts lawyers?

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Copyright Kedar Cohen, Used with Permission

Last revision: August 14, 2009 08:07 AM
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