CITES BY TOPIC: public office

Methods of Locating Proof that You are Illegally Impersonating a Public Officer in Violation of 18 U.S.C. §912 by PRETENDING to be a STATUTORY "person", "citizen", "resident", or "taxpayer"

  1. 4 U.S.C. §72 and 5 U.S.C. §3103 forbid the exercise of public offices outside the District of Columbia unless Congress has EXPRESSLY authorized such exercise in the specific geographical place in question. We'll give you a hint: They never authorized statutory "citizen", "resident", "person", or "taxpayer" offices in states of the Union. See:
    Challenge to Income Tax Enforcement Authority Within Constitutional States of the Union, form #05.052
  2. The definition of a public officer is someone who owes ANY KIND of duty to the public, INCLUDING a civil statutory obligation. Ricker's Petition, 66 N.H. 207 (1890)
  3. A public officer is legally defined as someone "Where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time as de- notes duration and continuance, with Independent power to control the property of the public", Black's Law Dictionary, Sixth Edition, p. 1235. If you control property of the government, you are deemed to be a public officer. Statutory civil rights are PROPERTY within the meaning this definition, by the way.
  4. The income tax is an excise tax upon "the functions of a public office", which is called a "trade or business" in 26 U.S.C. §7701(a)(26).
  5. One cannot exercise "the FUNCTIONS of a public office" WITHOUT BEING a "public office".
  6. One may act as a "non-officer employee" under 5 U.S.C. §2105 and even be CALLED an "officer" in that statute but STILL not be an "officer" under the Appointments Clause of the Constitution, Article 2, Section 2, Clause 2. See Tucker v. Comm'r, 135 T.C. 114 (2010) (see below).
  7. The State Action Doctrine of the U.S. Supreme Court dictates that those who may be the lawful target of any kind of government enforcement action are, by definition, public officers. See Proof That There is a "Straw Man", Form #05.042, Section 17.1
  8. Government cannot pay public funds to private people. That is an abuse of the taxing power. Thus, you must be a public officer, agent, or contractor to receive government payments or funds or "benefits". This is codified in 5 U.S.C. §553(a)(2) and 44 U.S.C. §1505(a)(1) and also mentioned in Loan Assoc. v. Topeka, 87 U.S. 655, 20 Wall 655 (1874):

    “The power to tax is, therefore, the strongest, the most pervading of all powers of government, reaching directly or indirectly to all classes of the people.  It was said by Chief Justice Marshall, in the case of McCulloch v. Md., 4 Wheat. 431, that the power to tax is the power to destroy.  A striking instance of the truth of the proposition is seen in the fact that the existing tax of ten per cent, imposed by the United States on the circulation of all other banks than the National Banks, drove out of existence every *state bank of circulation within a year or two after its passage.  This power can be readily employed against one class of individuals and in favor of another, so as to ruin the one class and give unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exercised.

    To lay, with one hand, the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation.  This is not legislation.  It is a decree under legislative forms.

    Nor is it taxation.  ‘A tax,’ says Webster’s Dictionary, ‘is a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or State.’  ‘Taxes are burdens or charges imposed by the Legislature upon persons or property to raise money for public purposes.’  Cooley, Const. Lim., 479.

    Coulter, J., in Northern Liberties v. St. John’s Church, 13 Pa. St., 104 says, very forcibly, ‘I think the common mind has everywhere taken in the understanding that taxes are a public imposition, levied by authority of the government for the purposes of carrying on the government in all its machinery and operations—that they are imposed for a public purpose.’  See, also Pray v. Northern Liberties, 31 Pa.St., 69; Matter of Mayor of N.Y., 11 Johns., 77; Camden v. Allen, 2 Dutch., 398; Sharpless v. Mayor, supra; Hanson v. Vernon, 27 Ia., 47; Whiting v. Fond du Lac, supra.”

    [Loan Association v. Topeka, 87 U.S. 655, 20 Wall. 655 (1874)]

PDF Proof That There Is a "Straw Man", Form #05.042-SEDM

Tax Withholding for Government Workers (OFFSITE LINK) -IRS


5 U.S.C. 3111: Acceptance of Volunteer Service-"taxpayers" are VOLUNTEERS!

[EDITORIAL: For proof that "taxpayers" are volunteers, see:

  1. Why Domicile and Becoming a "Taxpayer" Require Your Consent, Form #05.002
  2. How State Nationals VOLUNTEER to Pay Income Tax, Form #08.024-proves that "citizens" and "residents" in the Internal Revenue Code are an office under the Secretary of Treasury in the Treasury Department. They are NOT the "citizen" mentioned in 8 U.S.C. §1401, BTW.

Further, STATUTORY "taxpayers", "persons", "citizens", "residents", "employees" (under 26 U.S.C. §3401(c) using a W-4) are NOT authorized to act as VOLUNTEERs under this provision and DO NOT serve in the Capital as required by 5 U.S.C. §3103 in most cases, and therefore must be REMOVED from service per this provision, and thus NOT be treated as such.]

5 U.S.C.S. §912, Section 6


6. Who is officer or employee of United States

[. . .]

False personation of officers or employees of government-owned corporation, such as Tennessee Valley Authority, is not within predecessor to 18 USCS § 912, making it offense to falsely assume or pretend, with intent to defraud, to be officer or employee acting under authority of United States, or any Department, or any officer of government thereof. Pierce v. United States, 314 U.S. 306, 62 S. Ct. 237, 86 L. Ed. 226, 1941 U.S. LEXIS 1142 (1941).

[5 U.S.C.S. 912, Section 6]

[EDITORIAL: The IRS is a government owned federal corporation, so 18 U.S.C. §912 doesn't apply to people pretending to be officers within that corporation, but it DOES apply to people who are officers within the Department of the Treasury working under the Secretary of the Treasury as required by 5 U.S.C. §301]

PDF Why Your Government is Either a Thief or You are a Public Officer for Income Tax Purposes, Form #05.008-SEDM

Words and Phrases, Volume 35: Public Officers

United States Constitution: Analysis and Interpretation, U.S. Government Printing Office, 2004, p. 392

"Indeed, there can be no such thing in this country as [PRIVATE] property in office, although the common law sustained a different view sometimes reflected in early cases. 1974 "



1974 Butler v. Pennsylvania, 51 U.S. (10 How.) 402 (1850). Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803); Hoke v. Henderson, 154 N.C. (4 Dev.) 1 (1833). See also United States v. Fisher, 109 U.S. 143 (1883); United States v. Mitchell, 109 U.S. 146 (1883); Crenshaw v. United States, 134 U.S. 99 (1890)

[United States Constitution: Analysis and Interpretation, U.S. Government Printing Office, 2004, p. 392;]

[Editorial: By "property interest" they mean:

  1. A private property interest under the Fifth Amendment or even the common law.
  2. Ownership or control over the office or property attached to the office is not shared with the government and is absolute, unqualified, and exclusive.

Government therefore has an ABSOLUTE and EXCLUSIVE ownership and control and need not consult you for anything in connection with the office, and you do not SHARE ownership of any part of the office with them. So once you volunteer for the office or attach otherwise PRIVATE property to the office, you have no say over your own body or its fruits and you need their legislative permission to do anything and everything with the office or property attached to the office using the de facto license, the SSN, because you have no right to exclude them from using or benefitting from the office.]

Lucia v. SEC, 138 S.Ct. 2044, 2051 (2018)

(a) This Court's decisions in United States v. Germaine, 99 U.S. 508, 25 L.Ed. 482, and Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, set out the basic framework for distinguishing between officers and employees. To qualify as an officer, rather than an employee, an individual must

[1] occupy a "continuing" position established by law, Germaine, 99 U.S., at 511, and

[2] must "exercis[e] significant authority pursuant to the laws of the United States," Buckley, 424 U.S., at 126, 96 S.Ct. 612.

In Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764, the Court applied this framework to "special trial judges" (STJs) of the United States Tax Court. STJs could issue the final decision of the Tax Court in "comparatively narrow and minor matters." Id., at 873, 111 S.Ct. 2631. In more major matters, they could preside over the hearing but could not issue a final decision. Instead, they were to "prepare proposed findings and an opinion" for a regular Tax Court judge to consider. Ibid. The proceeding challenged in Freytag was a major one. The losing parties argued on appeal that the STJ who presided over their hearing was not constitutionally appointed.

This Court held that STJs are officers. Citing Germaine, the Freytag Court first found that STJs hold a continuing office established by law. See 501 U.S., at 881, 111 S.Ct. 2631. The Court then considered, as Buckley demands, the "significance" of the "authority" STJs wield. 501 U.S., at 881, 111 S.Ct. 2631. The Government had argued that STJs are employees in all cases in which they could not enter a final decision. But the Court thought that the Government's focus on finality "ignore[d] the significance of the duties and discretion that [STJs] possess." Ibid. Describing the responsibilities involved in presiding over adversarial hearings, the Court said: STJs "take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders." Id., at 881-882, 111 S.Ct. 2631. And the Court observed that "[i]n the course of carrying out these important functions," STJs "exercise significant discretion." Id., at 882, 111 S.Ct. 2631.

Freytag's analysis decides this case. The Commission's ALJs, like the Tax Court's STJs, hold a continuing office established by law. SEC ALJs "receive[ ] a career appointment," 5 C.F.R. § 930.204(a), to a position created by statute, see 5 U.S.C. §§ 556-557, 5372, 3105. And they exercise the same "significant discretion" when carrying out the same 2048*2048 "important functions" as STJs do. Freytag, 501 U.S., at 878, 111 S.Ct. 2631. Both sets of officials have all the authority needed to ensure fair and orderly adversarial hearings—indeed, nearly all the tools of federal trial judges. The Commission's ALJs, like the Tax Court's STJs, "take testimony," "conduct trials," "rule on the admissibility of evidence," and "have the power to enforce compliance with discovery orders." Id., at 881-882, 111 S.Ct. 2631. So point for point from Freytag's list, SEC ALJs have equivalent duties and powers as STJs in conducting adversarial inquiries.

[Lucia v. SEC, 138 S.Ct. 2044, 2051 (2018)]

Black’s Law Dictionary, Fourth Edition, p. 1235:

Public office. The right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government for the benefit of the public. Walker v. Rich, 79 Cal.App. 139, 249 P. 56, 58. An agency for the state, the duties of which involve in their performance the exercise of some portion of the sovereign power, either great or small. Yaselli v. Goff, C.C.A., 12 F.2d. 396, 403, 56 A.L.R. 1239; Lacey v. State, 13 Ala.App. 212, 68 So. 706, 710; Curtin v. State, 61 Cal.App. 377, 214 P. 1030, 1035; Shelmadine v. City of Elkhart, 75 Ind.App. 493, 129 N.E. 878. State ex rel. Colorado River Commission v. Frohmiller, 46 Ariz. 413, 52 P.2d. 483, 486. Where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time as de- notes duration and continuance, with Independent power to control the property of the public, or with public functions to be exercised in the supposed interest of the people, the service to be compensated by a stated yearly salary, and the occupant having a designation or title, the position so created is a public office. State v. Brennan, 49 Ohio.St. 33, 29 N.E. 593.
[Black’s Law Dictionary, Fourth Edition, p. 1235]

Black’s Law Dictionary, Fourth Edition, p. 1417:

Quo warranto. In old English practice. A writ, in the nature of a writ of right for the king, against him who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim, in order to determine the right. It lay also in case of non-user, or long neglect of a franchise, or misuser or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise, having never had any grant of it, or having for feited it by neglect or abuse. 3 B1.Comm. 262.

In England, and quite generally throughout the United States, this writ has given place to an "information in the nature of a quo warranto," which, though in form a criminal proceeding, is in effect a civil remedy similar to the old writ, and is the method now usually employed for trying the title to a corporate or other franchise, or to a public or corporate office. Ames v. Kansas, 111 U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482; People v. Londoner, 13 Colo. 303, 22 P. 764, 6 L.R.A. 444; An extraordinary proceeding, prerogative in nature, addressed to preventing a continued exercise of authority unlawfully asserted. Johnson v. Manhattan Ry. Co., N.Y., 53 S.Ct. 721, 289 U.S. 479, 77 L.Ed. 1331.

It is intended to prevent exercise of powers that are not conferred by law, and is not ordinarily available to regulate the manner of exercising such powers. State ex rel. Johnson v. Conservative Savings & Loan Ass'n, 143 Neb. 805, 11 N.W.2d 89, 92, 93.

[Black’s Law Dictionary, Fourth Edition, p. 1417]

Black’s Law Dictionary, Fourth Edition, p. 1230:

Public Office

“Essential characteristics of a ‘public office’ are:

(1) Authority conferred by law,

(2) Fixed tenure of office, and

(3) Power to exercise some of the sovereign functions of government.

(4) Key element of such test is that “officer is carrying out a sovereign function’.

(5) Essential elements to establish public position as ‘public office’ are:

    (a) Position must be created by Constitution, legislature, or through authority   conferred by legislature.

    (b)Portion of sovereign power of government must be delegated to position,

    (c)Duties and powers must be defined, directly or implied, by legislature or through legislative authority.

    (d)Duties must be performed independently without control of superior power other than law, and

    (e)Position must have some permanency.”

[Black’s Law Dictionary, Abridged 6th Edition, p. 1230]

Quo Warranto, LII Wex

63C Am.Jur.2d, Public Officers and Employees, §247

“As expressed otherwise, the powers delegated to a public officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officer. [1]  Furthermore, the view has been expressed that all public officers, within whatever branch and whatever level of government, and whatever be their private vocations, are trustees of the people, and accordingly labor under every disability and prohibition imposed by law upon trustees relative to the making of personal financial gain from a discharge of their trusts. [2]   That is, a public officer occupies a fiduciary relationship to the political entity on whose behalf he or she serves. [3]  and owes a fiduciary duty to the public. [4]   It has been said that the fiduciary responsibilities of a public officer cannot be less than those of a private individual. [5]   Furthermore, it has been stated that any enterprise undertaken by the public official which tends to weaken public confidence and undermine the sense of security for individual rights is against public policy.[6]

[63C Am.Jur.2d, Public Officers and Employees, §247]



[1] State ex rel. Nagle v Sullivan, 98 Mont 425, 40 P.2d. 995, 99 A.L.R. 321; Jersey City v Hague, 18 N.J. 584, 115 A.2d. 8.

[2] Georgia Dep't of Human Resources v. Sistrunk, 249 Ga. 543, 291 S.E.2d. 524. A public official is held in public trust.  Madlener v. Finley (1st Dist) 161 Ill.App.3d. 796, 113 Ill Dec 712, 515 N.E.2d. 697, app gr 117 Ill Dec 226, 520 N.E.2d. 387 and revd on other grounds 128 Ill.2d. 147, 131 Ill.Dec. 145, 538 N.E.2d. 520.

[3]Chicago Park Dist. V. Kenroy, Inc., 78 Ill.2d. 555, 37 Ill.Dec. 291, 402 N.E.2d. 181, appeal after remand (1st Dist) 107 Ill.App.3d. 222, 63 Ill.Dec.134, 437 N.E.2d. 783.

[4] United States v. Holzer (CA7 Ill) 816 F.2d. 304 and vacated, remanded on other grounds 484 U.S. 807, 98 L.Ed.2d. 18, 108 S.Ct. 53, on remand (CA7 Ill) 840 F.2d. 1343, cert den 486 U.S. 1035, 100 L.Ed.2d. 608, 108 S.Ct. 2022 and (criticized on other grounds by United States v. Osser (CA3 Pa) 864 F.2d. 1056) and (superseded by statute on other grounds as stated in United States v Little (CA5 Miss) 889 F.2d. 1367) and (among conflicting authorities on other grounds noted in United States v. Boylan (CA1 Mass) 898 F.2d. 230, 29 Fed.Rules.Evid.Serv. 1223).

[5] Chicago ex rel. Cohen v Keane, 64 Ill.2d. 559, 2 Ill.Dec. 285, 357 N.E.2d. 452, later proceeding (1st Dist) 105 Ill.App.3d. 298, 61 Ill.Dec. 172, 434 N.E.2d. 325.

[6]Indiana State Ethics Comm'n v. Nelson (Ind App) 656 N.E.2d. 1172, reh gr (Ind App) 659 N.E.2d. 260, reh den (Jan 24, 1996) and transfer den (May 28, 1996).

The "Trade or Business" Scam-nearly all "taxpayers" under I.R.C. Subtitle A are "public officers" of the United States Government

HTML version


PDF Officers of the United States Within the Meaning of the Appointments Clause, U.S. Attorney Memorandum Opinion

PDFA Treatise on the Law of Agency in Contract and Tort-George Reinhard, 1902.  Google Books

Treatise on Public Offices and Public Officers-Floyd Mechem, 1890.  Google Books

IRS: Government Official

A government official may be a disqualified person for the tax on self-dealing. However, the tax will be imposed only if the government official knows that the act is an act of self-dealing.

The term government official means an indi­vidual who at the time of the act of self-dealing holds any of the following offices or positions:

  1. An elective public office in the executive or legislative branch of the United States Government,
  2. An office in the executive or judicial branch of the U.S. Government, appointment to which was made by the President,
  3. A position in the executive, legislative or judicial branch of the U.S. Government—
  4. a.  Which is listed in Schedule C of Rule VI of the Civil Service Rules, or
  5. b.  The compensation for which is at least equal to the lowest rate prescribed for GS-16 of the General Schedule under 5 U.S.C. 5332,
  6. A position under either the U.S. House of Representatives or the U.S. Senate, held by an individual who receives gross annual pay of at least $15,000 (including expense allowances for which no accounting need be made),
  7. An elective or appointive public office in any branch of the government of any state, possession of the United States, or any subdivision of the foregoing, or the District of Columbia, held by an individual who re­ceives gross annual pay of at least $20,000, or
  8. A position as personal or executive assis­tant or secretary to any individual already described.

Public office.  For the purpose of (5), a holder of public office must be distinguished from a public employee. Although the determination depends on the facts and circumstances of each case, the es­sential element is whether a significant part of the activities of the individual is the independent performance of policymaking functions. Factors to be considered include that the office is created by the Congress, a state constitution, or state legislature, or by a municipality or other governmental body under powers created in it, and the duties to be discharged by the office are defined either directly or indirectly by the body that created it or through legislative authority.

Examples. The following illustrate positions of public employment that do not in­volve policymaking functions and are not a pub­lic office:

  1. The chancellor, president, provost, dean and other officers of a state university who are appointed, elected or otherwise hired by a State Board of Regents or equivalent public body and who are subject to the direction and supervision of that body,
  2. The superintendent of public schools and other public school officials who are ap­pointed, elected or otherwise hired by a Board of Education or equivalent public body and who are subject to the direction and supervision of that body, or
  3. Members of police and fire departments, except for department heads who, under the facts and circumstances of the case, independently perform policymaking func­tions as a significant part of their activities.
[Private Foundations: Government Official, Internal Revenue Service, 8/21/2020]

PDF 18 U.S.C.S. §912: Officer or employee of the United States

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

(June 25, 1948, ch. 645, 62 Stat. 742Pub. L. 103–322, title XXXIII, § 330016(1)(H)Sept. 13, 1994108 Stat. 2147.)

5 U.S.C. §2104: Officer

5 U.S. Code § 2104.Officer

(a)For the purpose of this title, “officer”, except as otherwise provided by this section or when specifically modified, means a justice or judge of the United States and an individual who is—
(1)required by law to be appointed in the civil service by one of the following acting in an official capacity—
(A) the President;
(B) a court of the United States;
(C) the head of an Executive agency; or
(D) the Secretary of a military department;
(2) engaged in the performance of a Federal function under authority of law or an Executive act; and
(3) subject to the supervision of an authority named by paragraph (1) of this section, or the Judicial Conference of the United States, while engaged in the performance of the duties of his office.
(b) Except as otherwise provided by law, an officer of the United States Postal Service or of the Postal Regulatory Commission is deemed not an officer for purposes of this title.

Blacks Law Dictionary, Fourth Edition, p. 1234: Office

OFFICE. Right to exercise public or private employment, and to take the fees and emoluments thereunto belonging, whether public, as those of magistrates, or private, as of bailiffs, receivers, or the like. 2 B1.Comm. 36. Blair v. Marye, 80 Va. 495; Worthy v. Barrett, 63 N.C. 202; Shelf. Mortm. 797; Cruise, Dig. Index; Com. v. Sutherland, 3 S. & R., Pa., 149. A right, and correspondent duty, to exercise a public trust. Whitehead v. Clark, 146 Tenn. 660, 244 S.W. 479, 482. A public charge or employment; U. S. v. Maurice, 2 Brock. 102, Fed. Cas. No. 15,747, per Marshall, C. J.; Lamar V. Splain, 42 App.D.C. 300, 305. An employment on behalf of the government in any station or public trust, not merely transient, occasional, or incidental.
See Eason v. Majors, 111 Neb. 288, 196 N.W. 133,134,30 A.L.R. 1419.

An "assigned duty" or "function." Synonyms are"post", "appointment", "situation", "place", "position", and "of8ce" commonly suggests a posltlon of (especially publlc) trust or authority. Also rlght to exercise a publlc function or employment, and to take the fees and emoluments belonging to it. Frazler v. Elmore, 180 Tenn. 232, 173 S.W.2d. 563, 565. A publlc charge or employn~ent, and he who performs the dutles of the omce is an offlcer. Although an o5ce is an employment, it does not follow that every employment is an office. A man may be employed
under a contract, express or implied, to do an act, or to perform a servlce, without becoming an omcer. But, if the duty be a contlnulng one, which Is deflned by rule prescribed by the government, whlch an individual is appofnted by the government to perform, who enters upon the dutles appertaining to his status, without any contract deflning them, it seems very dimcult to dlstlnguish such a charge or employment from an office, or the person who performs the duty from an officer. Lacy v. State, 13 Ala. App. 212, 68 So. 706, 710. In the constitutional sense, the term implies an authority to exercise some portlon of the soverelgn power, elther in making, executing, or adminlster ln the laws. State v. Christmas, 126 Mlss. 358, 88 So. 881, 882.

The most frequent occasions to use the word arise with reference to a duty and power conferred on an individual by the government; and, when this is the connection, "public ofice" is a usual and more discriminating expression. But a power and duty may exist without immediate grant from government, and may be properly called an "office;" as the office of executor, the office of steward. Here the individual acts towards legatees or towards tenants in performance of a duty, and in exercise of a power not derived from their consent, but devolved on him by an authority which quoad hoc is superior. Abbott.

A place for the regular transaction of business. Bradley v. Certigue Mining & Dredging Co., 157 N.Y.S. 275,276.93 Misc. 519. For the word "office" as used of a place for transacting public business, see Com. v. White, 6 Cush., Mass., 181."Oface" is frequently used in the old books as an abbreviation for "inquest of office," (q. v.).

As to various particular ofaces, see Land Office, Petty Bag OfEce, Post Office, etc.

[Black's Law Dictionary, Fourth Edition, p. 1234]

26 C.F.R. §1.1402(c)-1: Trade or business

§ 1.1402(c)-1 Trade or business.

In order for an individual to have net earnings from self-employment, he must carry on a trade or business, either as an individual or as a member of a partnership. Except for the exclusions discussed in §§ 1.1402(c)-2 to 1.1402(c)-7, inclusive, the term “trade or business”, for the purpose of the tax on self-employment income, shall have the same meaning as when used in section 162. An individual engaged in one of the excluded activities specified in such sections of the regulations may also be engaged in carrying on activities which constitute a trade or business for purposes of the tax on self-employment income. Whether or not he is also engaged in carrying on a trade or business will be dependent upon all of the facts and circumstances in the particular case. An individual who is a crew leader, as defined in section 3121(o) (see such section and the regulations thereunder in part 31 of this chapter (Employment Tax Regulations)), is considered to be engaged in carrying on a trade or business with respect to services performed by him after 1956 in furnishing individuals to perform agricultural labor for another person or services performed by him after 1956 as a member of the crew.

[T.D. 6978, 33 FR 15937, Oct. 30, 1968]

26 C.F.R. §1.1402(c)-2: Public Office

Title 26: Internal Revenue

§ 1.1402(c)-2   Public office.

(a) In general

(1) General rule. 

Except as otherwise provided in subparagraph (2) of this paragraph, the performance of the functions of a public office does not constitute a trade or business.

(2) Fee basis public officials

(i) In general. 

If an individual receives fees after 1967 for the performance of the functions of a public office of a State or a political subdivision thereof for which he is compensated solely on a fee basis, and if the service performed in such office is eligible for (but is not made the subject of) an agreement between the State and the Secretary of Health, Education, and Welfare pursuant to section 218 of the Social Security Act to extend social security coverage thereto, the service for which such fees are received constitutes a trade or business within the meaning of section 1402(c) and §1.1402(c)–1. If an individual performs service for a State or a political subdivision thereof in any period in more than one position, each position is treated separately for purposes of the preceding sentence. See also paragraph (f) of §1.1402(c)–3 relating to the performance of service by an individual as an employee of a State or a political subdivision thereof in a position compensated solely on a fee basis.

(ii) Election with respect to fees received in 1968. 

(A) Any individual who in 1968 receives fees for service performed by him with respect to the functions of a public office of a State or a political subdivision thereof in any period in which the functions are performed in a position compensated solely on a fee basis may elect, if the performance of the service for which such fees are received constitutes a trade or business pursuant to the provisions of subdivision (i) of this subparagraph, to have such performance of service treated as excluded from the term “trade or business” for the purpose of the tax on self-employment income, pursuant to the provisions of section 122(c)(2) of the Social Security Amendments of 1967 (as quoted in §1.1402(c)). Such election shall not be limited to service to which the fees received in 1968 are attributable but must also be applicable to service (if any) in subsequent years which, except for the election, would constitute a trade or business pursuant to the provisions of subdivision (i) of this subparagraph. An election made pursuant to the provisions of this subparagraph is irrevocable.

(B) The election referred to in subdivision (ii)(A) of this subparagraph shall be made by filing a certificate of election of exemption (Form 4415) on or before the due date of the income tax return (see section 6072), including any extension thereof (see section 6081), for the taxable year of the individual making the election which begins in 1968. The certificate of election of exemption shall be filed with an internal revenue office in accordance with the instructions on the certificate.

(b) Meaning of public office. 

The term “public office” includes any elective or appointive office of the United States or any possession thereof, of the District of Columbia, of a State or its political subdivisions, or a wholly-owned instrumentality of any one or more of the foregoing. For example, the President, the Vice President, a governor, a mayor, the Secretary of State, a member of Congress, a State representative, a county commissioner, a judge, a justice of the peace, a county or city attorney, a marshal, a sheriff, a constable, a registrar of deeds, or a notary public performs the functions of a public office. (However, the service of a notary public could not be made the subject of a section 218 agreement under the Social Security Act because notaries are not “employees” within the meaning of that section. Accordingly, such service does not constitute a trade or business.)

[T.D. 7333, 39 FR 44448, Dec. 24, 1974, as amended by T.D. 7372, 40 FR 30945, July 24, 1975]

26 C.F.R. §1.864-7: Definition of office or other fixed place of business

PART 1_INCOME TAXES--Table of Contents
Sec.  1.864-7  Definition of office or other fixed place of business.

    (a) In general.

     (1) This section applies for purposes of determining whether a nonresident alien individual or a foreign corporation that is engaged in a trade or business in the United States at some time during a taxable year beginning after December 31, 1966, has an office or other fixed place of business in the United States for purposes of applying section 864(c)(4)(B) and Sec.  1. 864-6 to income, gain, or loss specified in paragraph (b) of Sec.  1.864-5 from sources without the United States or has an office or other fixed place of business outside the United States for purposes of applying section 864(c)(4)(B)(iii) and paragraph (b)(3)(i) of Sec.  1.864-6 to sales of goods or merchandise for use, consumption, or disposition outside the United States.
    (2) In making a determination under this section due regard shall be given to the facts and circumstances of each case, particularly to the nature of the taxpayer's trade or business and the physical facilities actually required by the taxpayer in the ordinary course of the conduct of his trade or business.
    (3) The law of a foreign country shall not be controlling in determining whether a nonresident alien individual or a foreign corporation has an office or other fixed place of business.
    (b) Fixed facilities--

    (1) In general. As a general rule, an office or other fixed place of business is a fixed facility, that is, a place, site, structure, or other similar facility, through which a nonresident alien individual or a foreign corporation engages in a trade or business. For this purpose an office or other fixed place of business shall include, but shall not be limited to, a factory; a store or other sales outlet; a workshop; or a mine, quarry, or other place of extraction of natural resources. A fixed facility may be considered an office or other fixed place of business whether or not the facility is continuously used by a nonresident alien individual or foreign corporation.
    (2) Use of another person's office or other fixed place of business. A nonresident alien individual or a foreign corporation shall not be considered to have an office or other fixed place of business merely because such alien individual or foreign corporation uses another person's office or other fixed place of business, whether or not the office or place of business of a related person, through which to transact a trade or business, if the trade or business activities of the alien individual or foreign corporation in that office or other fixed place of business are relatively sporadic or infrequent, taking into account the overall needs and conduct of that trade or business.

[NOTE:  You can't have a "public office" until you have an "office", and you don't have one of these either!]

18 U.S.C. §201 Bribery of public officials and witnesses

TITLE 18 > PART I > CHAPTER 11 > § 201

§ 201. Bribery of public officials and witnesses

(a) For the purpose of this section—

(1) the term “public official” means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror

Ward v. United States, 1 Cl. Ct. 46 (1982)

The second clause of Article II, Section 2 of the Constitution provides:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of Law, or in the Heads of Departments.

The effect of the above language is that unless a person in the service of the Government occupies his position by virtue of an appointment by the President, or one of the courts of justice or heads of Departments authorized by law enacted by Congress to make such an appointment, he is not, strictly speaking, an officer of the United States. United States v. Mouat, 124 U.S. 303, 307 (1888).

HN5 In those instances where the Court has deemed a military [**28]  enlisted man an "officer" within the popular meaning of that term as used by Congress in a statute, it has emphasized that such a person "is not, in the constitutional sense of the word, an officer of the United States." United States v. Hendee, 124 U.S. 309, 313 (1888). No statute is involved in claimant's situation. It is solely the constitutional restraint of Article I that is said to require the withholding of retirement benefits that occurred. That restraint necessarily operates only against one who is an "officer of the United States" in the constitutional sense. It is nowhere suggested in the present record, nor does it otherwise appear, that as a chief petty officer in the Coast Guard the claimant was appointed by the President, a Court of Law, or the Head of a Department, within the contemplation of Article II, Section 2 of the Constitution, supra. If he was not so appointed, claimant is an employee, not an officer of the United States, Raims v. United States, 160 Ct. Cl. 535, 538-40 (1963), and the constitutional restraint of Article I does not, as a matter of law, apply to him.

While opinions may differ as to how far short of legal enforceability a claim may fall and [**29]  still constitute an "equitable claim" within the meaning of 28 U.S.C. § 25094Link to the text of the note there can be no doubt that every legal claim necessarily presents, as lesser included, an "equitable claim" in its most compelling form. Accordingly, the strong indications that the withholding of claimant's retirement benefits was unlawful as a matter of constitutional law serve to reinforce the conclusion that his present demand is an "equitable claim" in the fullest sense of the term and redress of it would in no event amount to a gratuity.

The defendant contends that to the degree that the instant claim may be deemed meritorious it should nonetheless be foreclosed by the bar of both limitations and laches. Neither contention [**30]  is well-founded on the facts presented.

[Ward v. United States, 1 Cl. Ct. 46 (1982)]

[EDITORIAL: If you weren't appointed by the president, a judge, or a head of a department of the U.S. government, you are deemed to be a STATUTORY "employee" but not an "officer of the United States" from a constitutional perspective. Thus, you cannot possibly be engaged in "the functions of a public office" or be taxable because of that, since the income tax is an excise tax upon the "trade or business", "public office" franchise. See The "Trade or Business" Scam, Form #05.001. The question then becomes, is the "public office" mentioned in 26 U.S.C. §7701(a)(26) as the SUBJECT of the income tax the SAME as an office within the meaning of the constitution? If not, then exactly what branch of government is it IN? It has to be in the Treasury Department because the liability first appears in 26 C.F.R. §1.1-1(a), which is a regulation written by the Secretary of the Treasury. The Treasury Department is in the Executive Branch, so the "taxpayer" and person liabie must therefore be ONLY an "employee" under 5 U.S.C. §2105 within the Department of the Treasury. That is the conclusion in How State Nationals VOLUNTEER to Pay Income Tax, Form #08.024]

Guedes v. BATFE, 356 F. Supp. 3d 109 (2019)

For  Appointments   Clause  purposes, federal officials fall into three categories:

(1) "principal officers," who must be appointed by the President with the advice and consent of the Senate;

(2) " inferior  officers ," who, by default, must be appointed by the President with the advice and consent of the Senate, but whose appointment Congress may choose to vest solely in the President, department heads, or courts; and

(3) "employees," who can be hired without any particular process mandated by the  Appointments   Clause See Lucia v. SEC, 138 S. Ct. 2044, 2051, 201 L. Ed. 2d 464 & n.3 (2018).

[Guedes v. BATFE, 356 F. Supp. 3d 109 (2019)]

Lucia v. SEC, 138 S. Ct. 2044 (2018)


The sole question here is whether the Commission’s ALJs are “Officers of the United States” or simply employees of the Federal Government. HN2 The  Appointments   Clause  prescribes the exclusive means of appointing “Officers.” Only the President, a court of law, or a head of department can do so. See Art. II, §2, cl. 2. 3Link to the text of the note And as all parties agree, none of those actors appointed Judge Elliot before he heard Lucia’s case; instead, SEC staff members gave him an ALJ slot. See Brief for Petitioners 15; Brief for United States 38; Brief for Court-Appointed Amicus Curiae 21. So if the Commission’s ALJs are constitutional officers, Lucia raises a valid  Appointments   Clause  claim. The only way to defeat his position is to show that those ALJs are not officers at all, but instead non-officer employees—part of the broad swath of “lesser functionaries” in the Government’s workforce. Buckley v. Valeo, 424 U. S. 1, 126, n. 162, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam). For if that is true, the  Appointments   Clause  cares not a whit about who named them. See United States v. Germaine, 99 U. S. 508, 510, 25 L. Ed. 482 (1879).

Two decisions set out this Court’s basic framework [***12]  for distinguishing between officers and employees. Germaine held that “civil surgeons” (doctors hired to perform various physical exams) were mere employees because their duties were “occasional or temporary” rather than “continuing and permanent.” Id., at 511-512, 25 L. Ed. 2d 482Stressing “ideas of tenure [and] duration,” the Court there made clear that HN4 an individual must occupy a “continuing” position established by law to qualify as an officer. Id., at 511, 25 L. Ed. 2d 482Buckley then set out another requirement, central to this case. It determined that HN5 members of a federal commission were officers only after finding that they “exercis[ed] significant authority pursuant to the  laws of the  United States .” 424 U. S., at 126, 96 S. Ct. 612, 46 L. Ed. 2d 659The inquiry thus focused on the extent of power an individual wields in carrying out his assigned functions.

Both the amicus and the Government urge us to elaborate on Buckley’s “significant authority” test, but another of our precedents makes that project unnecessary. The standard is no doubt framed in general terms, tempting advocates to add whatever glosses best suit their arguments. See Brief for Amicus Curiae 14  [*2052]  (contending  [**472]  that an individual wields “significant authority” when he has “(i) the power to bind the government or private [***13]  parties (ii) in her own name rather than in the name of a superior officer”); Reply Brief for United States 2 (countering that an individual wields that authority when he has “the power to bind the government or third parties on significant matters” or to undertake other “important and distinctively sovereign functions”). And maybe one day we will see a need to refine or enhance the test Buckley set out so concisely. But that day is not this one, because in Freytag v. Commissioner, 501 U. S. 868, 111 S. Ct. 2631, 115 L. Ed. 2d 764 (1991), we applied the unadorned “significant authority” test to adjudicative officials who are near-carbon copies of the Commission’s ALJs. As we now explain, our analysis there (sans any more detailed legal criteria) necessarily decides this case.

The officials at issue in Freytag were the “special trial judges” (STJs) of the United States Tax Court. The authority of those judges depended on the significance of the tax dispute before them. In “comparatively narrow and minor matters,” they could both hear and definitively resolve a case for the Tax Court. Id., at 873, 111 S. Ct. 2631, 115 L. Ed. 2d 764In more major matters, they could preside over the hearing, but could not issue the final decision; instead, they were to “prepare proposed findings and an opinion” for a regular Tax [***14]  Court judge to consider. Ibid. The proceeding challenged in Freytag was a major one, involving $1.5 billion in alleged tax deficiencies. See id., at 871, n. 1, 111 S. Ct. 2631, 115 L. Ed. 2d 764After conducting a 14-week trial, the STJ drafted a proposed decision in favor of the Government. A regular judge then adopted the STJ’s work as the opinion of the Tax Court. See id., at 872, 111 S. Ct. 2631, 115 L. Ed. 2d 764The losing parties argued on appeal that the STJ was not constitutionally appointed.

This Court held that the Tax Court’s STJs are officers, not mere employees. Citing Germaine, the Court first found that STJs hold a continuing office established by law. See 501 U. S., at 881, 111 S. Ct. 2631, 115 L. Ed. 2d 764They serve on an ongoing, rather than a “temporary [or] episodic[,] basis”; and their “duties, salary, and means of appointment” are all specified in the Tax Code. Ibid. The Court then considered, as Buckley demands, the “significance” of the “authority” STJs wield. 501 U. S., at 881, 111 S. Ct. 2631, 115 L. Ed. 2d 764In addressing that issue, the Government had argued that STJs are employees, rather than officers, in all cases (like the one at issue) in which they could not “enter a final decision.” Ibid. But the Court thought the Government’s focus on finality “ignore[d] the significance of the duties and discretion that [STJs] possess.” Ibid. Describing the [***15]  responsibilities involved in presiding over adversarial hearings, the Court said: STJs “take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders.” Id., at 881-882, 111 S. Ct. 2631, 115 L. Ed. 2d 764And the Court observed that “[i]n the course of carrying out these important functions, the [STJs] exercise significant discretion.” Id., at 882, 111 S. Ct. 2631, 115 L. Ed. 2d 764That fact meant they  [**473]  were officers, even when their decisions were not final. 4Link to the text of the note

 [*2053]  Freytag says everything necessary to decide this case. To begin, the Commission’s ALJs, like the Tax Court’s STJs, hold a continuing office established by law. See id., at 881, 111 S. Ct. 2631, 115 L. Ed. 2d 764. Indeed, everyone here—Lucia, the Government, and the amicus—agrees on that point. See Brief for Petitioners 21; Brief for United States 17-18, n. 3; Brief for Amicus Curiae 22, n. 7. Far from serving temporarily or episodically, SEC ALJs “receive[ ] a career appointment.” 5 CFR §930.204(a) (2018). And that appointment is to a position created by statute, down to its “duties, salary, and means of appointment.” Freytag, 501 U. S., at 881, 111 S. Ct. 2631, 115 L. Ed. 2d 764; see 5 U. S. C. §§556-55753723105.

Still more, the Commission’s ALJs exercise the same “significant discretion” when carrying out the same “important functions” as STJs do. Freytag, 501 U. S., at 882, 111 S. Ct. 2631, 115 L. Ed. 2d 764. [***16]  Both sets of officials have all the authority needed to ensure fair and orderly adversarial hearings—indeed, nearly all the tools of federal trial judges. See Butz, 438 U. S., at 513, 98 S. Ct. 2894, 57 L. Ed. 2d 895supra, at 2Consider in order the four specific (if overlapping) powers Freytag mentioned. First, the Commission’s ALJs (like the Tax Court’s STJs) “take testimony.” 501 U. S., at 881, 111 S. Ct. 2631, 115 L. Ed. 2d 764More precisely, they “[r]eceiv[e] evidence” and “[e]xamine witnesses” at hearings, and may also take pre-hearing depositions. 17 CFR §§201.111(c)200.14(a)(4); see 5 U. S. C. §556(c)(4)Second, the ALJs (like STJs) “conduct trials.” 501 U. S., at 882, 111 S. Ct. 2631, 115 L. Ed. 2d 764As detailed earlier, they administer oaths, rule on motions, and generally “regulat[e] the course of” a hearing, as well as the conduct of parties and counsel. §201.111; see §§200.14(a)(1)(a)(7)supra, at 2Third, the ALJs (like STJs) “rule on the admissibility of evidence.” 501 U. S., at 882, 111 S. Ct. 2631, 115 L. Ed. 2d 764; see §201.111(c)They thus critically shape the administrative record (as they also do when issuing document subpoenas). See §201.111(b). And fourth, the ALJs (like STJs) “have the power to enforce compliance with discovery orders.” 501 U. S., at 882, 111 S. Ct. 2631, 115 L. Ed. 2d 764In particular, they may punish all “[c]ontemptuous conduct,” including violations of those orders, by means as severe as excluding the offender from the hearing. See §201.180(a)(1). So  [**474]  point for point—straight from Freytag’s list—the Commission’s ALJs have [***17]  equivalent duties and powers as STJs in conducting adversarial inquiries.

And at the close of those proceedings, ALJs issue decisions much like that in Freytag—except with potentially more independent effect. As the Freytag Court recounted, STJs “prepare proposed findings and an opinion” adjudicating charges and assessing tax liabilities. 501 U. S., at 873, 111 S. Ct. 2631, 115 L. Ed. 2d 764; see supra, at 7. Similarly, the Commission’s ALJs issue decisions containing factual findings, legal conclusions, and appropriate remedies. See §201.360(b)supra, at 2And what happens next reveals that the ALJ can play the more autonomous role. In a major case like Freytag, a regular Tax Court judge must always review an  [*2054]  STJ’s opinion. And that opinion counts for nothing unless the regular judge adopts it as his own. See 501 U. S., at 873, 111 S. Ct. 2631, 115 L. Ed. 2d 764By contrast, the SEC can decide against reviewing an ALJ decision at all. And when the SEC declines review (and issues an order saying so), the ALJ’s decision itself “becomes final” and is “deemed the action of the Commission.” §201.360(d)(2)15 U. S. C. §78d-1(c); see supra, at 2That last-word capacity makes this an a fortiori case: If the Tax Court’s STJs are officers, as Freytag held, then the Commission’s ALJs must be too.

The amicus offers up two distinctions to support the opposite conclusion. [***18]  His main argument relates to “the power to enforce compliance with discovery orders”—the fourth of Freytag’s listed functions. 501 U. S., at 882, 111 S. Ct. 2631, 115 L. Ed. 2d 764. The Tax Court’s STJs, he states, had that power “because they had authority to punish contempt” (including discovery violations) through fines or imprisonment. Brief for Amicus Curiae 37; see id., at 37, n. 10 (citing 26 U. S. C. §7456(c)). By contrast, he observes, the Commission’s ALJs have less capacious power to sanction misconduct. The amicus’s secondary distinction involves how the Tax Court and Commission, respectively, review the factfinding of STJs and ALJs. The Tax Court’s rules state that an STJ’s findings of fact “shall be presumed” correct. Tax Court Rule 183(d). In comparison, the amicus notes, the SEC’s regulations include no such deferential standard. See Brief for Amicus Curiae 10, 38, n. 11.

But those distinctions make no difference for officer status. To start with the amicus’s primary point, Freytag referenced only the general “power to enforce compliance with discovery orders,” not any particular method of doing so. 501 U. S., at 882, 111 S. Ct. 2631, 115 L. Ed. 2d 764. True enough, the power to toss malefactors in jail is an especially muscular means of enforcement—the nuclear option of compliance tools. But just as armies can often enforce their [***19]  will through conventional weapons, so too can administrative judges. As noted earlier, the Commission’s ALJs can respond to discovery violations and other contemptuous conduct by excluding the wrongdoer (whether party or lawyer) from the proceedings—a powerful disincentive to resist a court order. See §201.180(a)(1)(i)supra, at 9Similarly, if the offender is an attorney, the ALJ can [**475]  “[s]ummarily suspend” him from representing his client—not something the typical lawyer wants to invite. §201.180(a)(1)(ii). And finally, a judge who will, in the end, issue an opinion complete with factual findings, legal conclusions, and sanctions has substantial informal power to ensure the parties stay in line. Contrary to the amicus’s view, all that is enough to satisfy Freytag’s fourth item (even supposing, which we do not decide, that each of those items is necessary for someone conducting adversarial hearings to count as an officer).

And the amicus’s standard-of-review distinction fares just as badly. The Freytag Court never suggested that the deference given to STJs’ factual findings mattered to its  Appointments   Clause  analysis. Indeed, the relevant part of Freytag did not so much as mention the subject (even though it came up at oral argument, see Tr. of [***20]  Oral Arg. 33-41). And anyway, the Commission often accords a similar deference to its ALJs, even if not by regulation. The Commission has repeatedly stated, as it did below, that its ALJs are in the “best position to make findings of fact” and “resolve any conflicts in the evidence.” App. to Pet. for Cert. 241a (quoting In re Nasdaq Stock Market, LLC, SEC Release No. 57741, 2008 SEC LEXIS 957 (Apr. 30, 2008)). (That was why the SEC insisted that Judge Elliot make factual  [*2055]  findings on all four allegations of Lucia’s deception. See supra, at 3.) And when factfinding derives from credibility judgments, as it frequently does, acceptance is near-automatic. Recognizing ALJs’ “personal experience with the witnesses,” the Commission adopts their “credibility finding[s] absent overwhelming evidence to the contrary.” App. to Pet. for Cert. 241a; In re Clawson, SEC Release No. 48143, 56 S.E.C. 584, 2003 SEC LEXIS 1598 (July 9, 2003). That practice erases the constitutional line the amicus proposes to draw.

The only issue left is remedial. For all the reasons we have given, and all those Freytag gave before,HN6 the Commission’s ALJs are “Officers of the United States,” subject to the  Appointments   Clause . And as noted earlier, Judge Elliot heard and decided Lucia’s case without the kind [***21]  of appointment the Clause requires. See supra, at 5. This Court has held that HN7 “one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case” is entitled to relief. Ryder v. United States, 515 U. S. 177, 182-183, 115 S. Ct. 2031, 132 L. Ed. 2d 136 (1995)Lucia made just such a timely challenge: He contested the validity of Judge Elliot’s appointment before the Commission, and continued pressing that claim in the Court of Appeals and this Court. So what relief follows? This Court has also held that HN8 the “appropriate” remedy for an adjudication tainted with an appointments violation is a new “hearing before a properly appointed” official. Id., at 183, 188, 115 S. Ct. 2031, 132 L. Ed. 2d 136And we add today one thing more. That official cannot be Judge Elliot, even if he has by now received (or receives sometime in the future) a constitutional appointment. Judge Elliot has already both heard Lucia’s case and issued an initial decision on the merits. He cannot be expected to consider the matter as though he had  [**476]  not adjudicated it before. 5Link to the text of the note To cure the constitutional error, another ALJ (or the Commission itself) must hold the new hearing to which Lucia is entitled. 6Link to the text of the note

 [*2056]  We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings [***22]  consistent with this opinion.

It is so ordered.

[Lucia v. SEC, 138 S. Ct. 2044 (2018)]

Osborn v. Bank of U.S., 22 U.S. 738 (1824)

All the powers of the government must be carried into operation by individual agency, either through the medium of public officers, or contracts made with individuals.  Can any public office be created,  or does one exist, the performance of which may, with propriety, be assigned to this association [or trust], when incorporated? If such office exist, or can be created, then the company may be incorporated, that they may be appointed to execute such office. Is there any portion of the public business performed by individuals upon contracts, that this association could be employed to perform, with greater advantage and more safety to the public, than an individual contractor? If there be an employment of this nature, then may this company be incorporated to undertake it.

There is an employment of this nature. Nothing can be more essential to the fiscal concerns of the nation, than an agent of undoubted integrity and established credit, with whom the public moneys can, at all times, be safely deposited. Nothing can be of more importance to a government, than that there should be some capitalist in the country, who possesses the means of making advances of money to the government upon any exigency, and who is under a legal obligation to make such advances. For these purposes the association would be an agent peculiarly suitable and appropriate. [. . .]

The mere creation of a corporation, does not confer political power or political character. So this Court decided in Dartmouth College v. Woodward, already referred to. If I may be allowed to paraphrase the language of the Chief Justice, I would say, a bank incorporated, is no more a State instrument, than a natural person performing the same business would be. If, then, a natural person, engaged in the trade of banking, should contract with the government to receive the public money upon deposit, to transmit it from place to place, without charging for commission or difference of exchange, and to perform, when called upon, the duties of commissioner of loans, would not thereby become a public officer, how is it that this artificial being, created by law for the purpose of being employed by the government for the same purposes, should become a part of the civil government of the country? Is it because its existence, its capacities, its powers, are given by law? because the government has given it power to take and hold property in a particular form, and to employ that property for particular purposes, and in the disposition of it to use a particular name? because the government has sold it a privilege [22 U.S. 738, 774]   for a large sum of money, and has bargained with it to do certain things; is it, therefore, a part of the very government with which the contract is made?

If the Bank be constituted a public office, by the connexion between it and the government, it cannot be the mere legal franchise in which the office is vested; the individual stockholders must be the officers. Their character is not merged in the charter. This is the strong point of the Mayor and Commonalty v. Wood, upon which this Court ground their decision in the Bank v. Deveaux, and from which they say, that cause could not be distinguished. Thus, aliens may become public officers, and public duties are confided to those who owe no allegiance to the government, and who are even beyond its territorial limits.

With the privileges and perquisites of office, all individuals holding offices, ought to be subject to the disabilities of office. But if the Bank be a public office, and the individual stockholders public officers, this principle does not have a fair and just operation. The disabilities of office do not attach to the stockholders; for we find them every where holding public offices, even in the national Legislature, from which, if they be public officers, they are excluded by the constitution in express terms.

If the Bank be a public institution of such character as to be justly assimilated to the mint and the post office, then its charter may be amended, altered, or even abolished, at the discretion of the National Legislature. All public offices are created [22 U.S. 738, 775]   purely for public purposes, and may, at any time, be modified in such manner as the public interest may require. Public corporations partake of the same character. So it is distinctly adjudged in Dartmouth College v. Woodward. In this point, each Judge who delivered an opinion concurred. By one of the Judges it is said, that 'public corporations are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes and counties; and in many respects they are so, although they involve some private interests; but, strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interest belongs also to the government. If, therefore, the foundation be private, though under the charter of the government, the corporation is private, however extensive the uses may be to which it is devoted, either by the bounty of the founder, or the nature and objects of the institution. For instance, a bank, created by the government for its own uses, whose stock is exclusively owned by the government, is, in the strictest sense, a public corporation. So, a hospital created and endowed by the government for general charity. But a bank, whose stock is owned by private persons, is a private corporation, although it is erected by the government, and its objects and operations partake of a public nature. The same doctrine may be affirmed of insurance, canal, bridge, and turnpike companies. In all these cases, the uses may, in a certain sense, be called public, but the corporations are private; as much [22 U.S. 738, 776]   so, indeed, as if the franchises were vested in a single person.[. . .]

In what sense is it an instrument of the government? and in what character is it employed as such? Do the government employ the faculty, the legal franchise, or do they employ the individuals upon whom it is conferred? and what is the nature of that employment? does it resemble the post office, or the mint, or the custom house, or the process of the federal Courts?

The post office is established by the general government. It is a public institution. The persons who perform its duties are public officers. No individual has, or can acquire, any property in it. For all the services performed, a compensation is paid out of the national treasury; and all the money received upon account of its operations, is public property. Surely there is no similitude between this institution, and an association who trade upon their own capital, for their own profit, and who have paid the government a million and a half of dollars for a legal character and name, in which to conduct their trade.

Again: the business conducted through the agency of the post office, is not in its nature a private business. It is of a public character, and the [22 U.S. 738, 786]   charge of it is expressly conferred upon Congress by the constitution. The business is created by law, and is annihilated when the law is repealed. But the trade of banking is strictly a private concern. It exists and can be carried on without the aid of the national Legislature. Nay, it is only under very special circumstances, that the national Legislature can so far interfere with it, as to facilitate its operations.

The post office executes the various duties assigned to it, by means of subordinate agents. The mails are opened and closed by persons invested with the character of public officers. But they are transported by individuals employed for that purpose, in their individual character, which employment is created by and founded in contract. To such contractors no official character is attached. These contractors supply horses, carriages, and whatever else is necessary for the transportation of the mails, upon their own account. The whole is engaged in the public service. The contractor, his horses, his carriage, his driver, are all in public employ. But this does not change their character. All that was private property before the contract was made, and before they were engaged in public employ, remain private property still. The horses and the carriages are liable to be taxed as other property, for every purpose for which property of the same character is taxed in the place where they are employed. The reason is plain: the contractor is employing his own means to promote his own private profit, and the tax collected is from the individual, though assessed upon the [22 U.S. 738, 787]   means he uses to perform the public service. To tax the transportation of the mails, as such, would be taxing the operations of the government, which could not be allowed. But to tax the means by which this transportation is effected, so far as those means are private property, is allowable; because it abstracts nothing from the government; and because, the fact that an individual employs his private means in the service of the government, attaches to them no immunity whatever.”

[Osborn v. Bank of U.S., 22 U.S. 738 (1824)]

Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)

“One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law. [500 U.S. 614, 620]  

To implement these principles, courts must consider from time to time where the governmental sphere [e.g. “public purpose” and “public office”] ends and the private sphere begins. Although the conduct of private parties lies beyond the Constitution's scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints. This is the jurisprudence of state action, which explores the "essential dichotomy" between the private sphere and the public sphere, with all its attendant constitutional obligations. Moose Lodge, supra, at 172. “

[. . .]

Given that the statutory authorization for the challenges exercised in this case is clear, the remainder of our state action analysis centers around the second part of the Lugar test, whether a private litigant, in all fairness, must be deemed a government actor in the use of peremptory challenges. Although we have recognized that this aspect of the analysis is often a fact-bound inquiry, see Lugar, supra, 457 U.S. at 939, our cases disclose certain principles of general application. Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits, see Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); whether the the actor is performing a traditional governmental function, see Terry v. Adams, 345 U.S. 461 (1953); Marsh v. Alabama, 326 U.S. 501 (1946); cf. San Francisco Arts & Athletics, Inc. v. United States Olympic [500 U.S. 614, 622]   Committee, 483 U.S. 522, 544 -545 (1987); and whether the injury caused is aggravated in a unique way by the incidents of governmental authority, see Shelley v. Kraemer, 334 U.S. 1 (1948). Based on our application of these three principles to the circumstances here, we hold that the exercise of peremptory challenges by the defendant in the District Court was pursuant to a course of state action.

[Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)]

Ricker's Petition, 66 N.H. 207 (1890)

"The term office' has no legal or technical meaning attached to it, distinct from its ordinary acceptations. An office is a public charge or employment; but, as every employment is not an office, it is sometimes difficult to distinguish between employments which are and those which are not offices…. A public officer is one who has some duty to perform concerning the public; and he is not the less a public officer when his duty is confined to narrow limits, because it is the duty, and the nature of that duty, which makes him a public officer, and not the extent of his authority.' 7 Bac. Abr. 280; Carth. 479…. Where an employment or duty is a continuing [***65] one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office, and the person who performs it is an officer…. The powers vested in the government of the state of Mississippi are either legislative, judicial, or executive; and these respective branches of power have been committed to separate bodies of magistracy…. Whether an office has been created by the constitution itself, or by statute,… the incumbent, as a component member of one of the bodies of the magistracy, is vested with a portion of the power of the government…. The words civil office under the state'… import an office in which is reposed some portion of the sovereign power of the state, and of necessity having some connection with the legislative, judicial, or executive departments of the government…. The local and limited power and duties of the levee commissioner can have no effect in determining the question whether his office is not an office under the state. A member of the board of county police, or a justice of the peace, is as much an officer under the state as the executive, the heads of department, or a member of the judiciary. The powers attached [***66] to the office of levee commissioner evidently pertain to the executive branch of the government. Clothed with a portion of the power vested in that department, the commissioner, in the discharge of his proper functions, exercises as clearly sovereign power as the governor or a sheriff." Shelby v. Alcorn, 36 Miss. 273, 288-290, 292. The constitution provided that "no senator [*233] or representative" should, during his term, "be appointed to any civil office of profit under this state," which had been created during his legislative term. The object of the clause was manifest, and the office of levee commissioner was held to be within the mischief which the prohibition was intended to prevent.

"By the constitution of 1846 (art. 6, s. 8), the judges of the court of appeals and justices of the supreme court were prohibited from exercising any power of appointment to public office.'… The term office' has a very general signification, and is defined to be that function by virtue whereof a person has some employment in the affairs of another; and it may be public, or private, or quasi public, as exercised under public authority, but yet affecting only the affairs [***67] of particular individuals. The presidency of a bank is spoken of as an office, and a trustee of a private trust is, in ordinary parlance, said to hold the office of trustee; and the term office is applied to an executor or guardian, etc. A referee, for the trial and decision of actions, is an officer exercising judicial powers under public authority. So, receivers appointed by the courts, and commissioners for the appraisal of damages for lands taken for public use, are officers, and strictly and technically exercise the functions of an office. But they are not public officers, within the inhibition of the constitution…. They are not called upon to take the constitutional oath of office." Opinion of the majority in Matter of Hathaway, 71 N.Y. 238, 242, 243. "The power of courts of law and equity to appoint referees and receivers… was a part of their acknowledged authority and jurisdiction prior to and at the time of the adoption of the constitution. They were said to be officers of the court…. The power of the courts to act through official agencies of their own appointment… was incident to their jurisdiction, and passed to the supreme court as a part of the general jurisdiction [***68] of law and equity, conferred by s. 3, art. 6 of the constitution…. Assuming, therefore, that receivers and referees are public officers (a point which we do not determine), the power of appointment… was continued in the new supreme court by the… constitution." Opinion of the minority in the same case, pp. 252, 253.

"An attorney at law is an officer of the court. The terms of the oaths exacted of him at his admission to the bar prove him to be so; you shall behave yourself in your office of attorney within the court, with all due fidelity as well to the court as the client."' Austin's Case, 5 Rawle 191, 203. "Attorneys who have been admitted to practice as such are officers of the court, of whom the court will take judicial notice, and generally will not require them to show their authority to appear; and if questioned, the declaration of the attorney that he has such authority will ordinarily be sufficient." Stevens [**573] v. Fuller, 55 N.H. 443; Thomas v. Steele, 22 Wis. 207, 209. "The agreement was signed by the attorneys of [*234] record. They were officers of the court; and their signatures were judicially known to the court." Strippelmann [***69] v. Clark, 11 Tex. 296, 298. "The office of an attorney is quasi public, and his conduct semi official." Ex parte Walls, 73 Ind. 95, 106.

[Ricker's Petition, 66 N.H. 207 (1890)]

[EDITORIAL:  So the existence of a DUTY or OBLIGATION owed to "the public" is the criteria for determining whether a PUBLIC OFFICE exists. By "public" they mean BOTH the "government" or some OTHER civil statutory entity such as "person", "citizen", "resident", etc. who are ALSO acting as "agents" or officers of the government.   The duty and the corresponding rights of the party that the duty is owed to are "property" within a legal context.  If there is an obligation not produced by a contract, which appears in the civil statutory law and is of a continuing nature, then there is AUTOMATICALLY also a PUBLIC office. And since involuntary servitude is prohibited, then no one can compel you to occupy any office or status to which obligation\s attach, INCLUDING "person" or "taxpayer" or "citizen".In this scenario, a LOSS of a remedy is an obligation, such as a LOSS of the right to appeal to a district court as a "taxpayer" going into Tax Court.  LOSS of constitutional rights or remedies are CIVIL obligations.  Likewise, if you can lawfully become the target of a civil statutory enforcement action and may not invoke constitutional protections to STOP the enfrocement, then you are PRESUMED to have EXACTLY the obligation they speak of.  It's not an "obligation" as legally defined UNLESS it is enforceable either administratively or in court, in fact.

California Civil Code - CIV   (Heading of Division 3 amended by Stats.   1988, Ch. 160, Sec. 14. )rt 1 enacted 1872. )
TITLE 1. DEFINITION OF OBLIGATIONS [1427 - [1428.]] ( Title 1 enacted 1872.)

1427.  An obligation is a legal duty, by which a person is bound to do or not to do a certain thing.
           (Enacted 1872.)

[California Civil Code, Section 1427]


Tucker v. Comm'r, 135 T.C. 114 (2010)

B. The distinctions in the  Appointments   Clause : "Officers", "inferior Officers", and non-officer employees

1. "Principal" officers vs. "inferior" officers

HN2 The rules of the  Appointments   Clause  apply to "all other Officers of the United States" (emphasis added), i.e., to officers other than those whose appointment is provided elsewhere in the Constitution. As a result, "all persons who can be said to hold an office  [**15] * * * were intended to be included within one or the other of these modes of appointment". United States v. Germaine, 99 U.S. 508, 510, 25 L. Ed. 482 (1879) (emphasis added). As a general rule, then, all "officers" must be nominated by the President and confirmed by the Senate.

The  Appointments   Clause  makes an explicit distinction of, and includes an exception for, "inferior Officers". The case law applying this exception distinguishes these "inferior officers" from "principal officers". The term "principal officer" is not in the  Appointments   Clause  but is borrowed from the immediately preceding clause (i.e., U.S. Const. art. II, sec. 2, cl. 1), which provides that "The President * * * may require the Opinion in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices". The Constitution thus conceives of "principal officers", who must in every case be nominated by the President and confirmed by the Senate, and "inferior Officers", for whom an exception is allowed. In the case of these inferior officers, "Congress may by Law vest" their appointment, "as they [in Congress] think proper, in the President alone, in the  [**16] Courts of Law, or in the Heads of Departments." Id. cl. 2 (emphasis added).

"The line between 'inferior' and 'principal' officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn." Morrison v. Olson, 487 U.S. 654, 671, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988). But in this case Mr. Tucker contends only that appeals officers are inferior officers, not that they are principal officers, so that the principal-inferior distinction is not at issue.

 [*123]  2. "Officers" vs. non-officer employees

HN3 A distinction implicit in the  Appointments   Clause  is between "Officers", to whom the clause applies, and those employees who are not officers, to whom it does not apply. "The line between 'mere' employees and inferior officers is anything but bright", Landry v. FDIC, 204 F.3d 1125, 1132, 340 U.S. App. D.C. 237 (D.C. Cir. 2000), 5 but it is the line that must be drawn in this case. The Supreme Court has broadly defined the term "Officer of the United States" as "any appointee exercising significant authority pursuant to the laws of the United States", Buckley v. Valeo, 424 U.S. 1, 126, 96 S. Ct. 612, 46 L.Ed.2d. 659 (1976), and "all appointed officials exercising responsibility under the public laws of the Nation", id. at 131. The Court has explained,  [**17] however, that the term "does not include all employees of the United States * * *. Employees are lesser functionaries subordinate to officers of the United States". Id. at 126 n.162. 6

Mr. Tucker  [**19] does not dispute the existence of this sub-officer category of "lesser functionaries"; he does not argue that all Federal employees are officers who must be appointed. However, lest it be thought that the lack of explicit warrant in the Constitution suggests that non-officer employees cannot properly exist in the Executive Branch, or that they cannot be numerous, it should be noted that the  [*124]  same question could arise with respect to the other two branches of Government. The Constitution has no explicit provision whatever that authorizes Senators, Representatives, or congressional committees to hire employees of any sort, whether officers, inferior officers, or lesser functionaries, but it would be absurd to interpret the constitutional silence on this matter as a bar to the legislature's hiring personnel necessary for its constitutionally mandated functions. 7 For many years congressional employees were few in number—but there were always at least a few: By 1792 the list of personnel for the House included the clerk of the House of Representatives, a principal clerk, two engrossing clerks, a chaplain, a sergeant-at-arms, a door-keeper, and an assistant door-keeper, and the list for  [**20] the Senate included the secretary of the Senate, two clerks, a door-keeper, and an assistant door-keeper 8—a total of thirteen, none of whom were explicitly authorized in the Constitution. Currently, the total employment of the Senate and House numbers in the thousands. 9

For the judicial branch the Constitution does include an explicit provision for subordinate personnel, in that the  Appointments   Clause  itself provides that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in * * * the Courts of Law". That is, it is explicit that "the Courts of Law" may appoint "inferior Officers". The Judiciary Act of 1789, enacted by the first Congress, provided for clerks of court and marshals, 10 and the  [*125]  1792 Roll, at 59-60, does show such personnel on the list. However, the courts  [**22] had to maintain courthouses, keep records, and collect fees, 11 functions for which additional employees beyond "inferior Officers" would seem to be inevitable, if not initially then at least eventually. Currently the Judicial Branch employs thousands of non-officers. 12

In any event, the courts have acknowledged the practical necessity for and the propriety of non-officer employees in all three branches, including the executive. Therefore, in this case we do not decide whether such employees are constitutionally possible (they are), but whether CDP "officer[s] or employee[s]" are properly among their number.

C. Modes of appointment under the  Appointments   Clause

HN5 The  Appointments   Clause  provides three modes of appointment for executive officers—i.e., by Presidential nomination and Senate confirmation, by the President alone, or by the Head of a Department. 13 However, as we noted above in part I.B.1, while the  Appointments   Clause   [**23] does allow an exception for inferior officers to be appointed by the President alone or by the Secretary, the terms of that exception are that "Congress may by Law vest the Appointment" in the President alone or the Head of a Department. Where Congress has not made any such exception "by Law", then  [*126]  the default rule applies. 14 Section 7804(a) authorizes the Commissioner to appoint IRS personnel "[u]nless otherwise prescribed by the Secretary". We assume that, by that statutory phrase, Congress has, for purposes of the  Appointments   Clause , "vest[ed]" in the Secretary the power to appoint IRS personnel if he chooses to so "prescribe". Therefore, if a given IRS position (such as a CDP hearing officer) were found to constitute an "inferior Office[" requiring constitutional appointment, then the Secretary could presumably prescribe that the Secretary would appoint personnel to fill that office, and the requirements of the  Appointments   Clause  would be fulfilled. However, respondent does not contend that the Secretary has made any such prescription or has appointed any personnel in the Office of Appeals. Consequently, their hiring does not conform to the  Appointments   Clause .

D. Appointment of revenue personnel in the late 18th century

To apply the  Appointments   Clause  to internal revenue personnel who are affected by the 1998 CDP provisions, we take instruction from the manner in which internal revenue personnel were appointed and hired in the years immediately after the Constitution was ratified.  [**26] Of course, the earliest Congresses and executive administrations were not infallible in their adherence to the Constitution, and their example cannot be followed uncritically; but we do properly note "the early practice of Congress", Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.       , 130 S. Ct. 3138, 177 L. Ed. 2d 706, 734 (2010), particularly where it concerns revenue personnel, who were by no means an outlying example of early Federal employment. On the contrary, in that era revenue collection was a significant and conspicuous Federal effort—both quantitatively and qualitatively. 15 Nonetheless,  [*127]  very few internal revenue personnel were appointed under the  Appointments   Clause .

1. The Department of the Treasury

The Act that established the Department  [**27] of the Treasury on September 2, 1789, created only six offices—the Secretary, an Assistant to the Secretary, a Comptroller, an Auditor, a Treasurer, and a Register. 16 Nine days later Congress authorized the Secretary to "appoint such clerks * * * as * * * [he] shall find necessary". 17 The organizing Act charged the Secretary "to superintend the collection of the revenue", 18 a function that would obviously require a numerous staff. However, in 1792 the entire staff of the Treasury Department—from Secretary down to "messenger and office-keeper"—consisted of 110 persons.

The personnel actually employed in the collection of revenue were much more numerous and fell into two categories, external and internal. The manner of appointment used in these two categories was notably distinct.

2. External  [**29] revenue collection

Before establishing the Treasury Department, Congress had already provided five weeks earlier, in July 1789, for some of the personnel necessary for collection of "external revenue", i.e., duties on imports. 19 Congress had provided that for each port "a naval officer, collector 20 and surveyor  [*128]  shall be appointed", presumably by the President. 21 It was the duty of the collector "to employ proper persons as weighers, gaugers, measurers and inspectors * * *, together with such persons as shall be necessary to serve in the boats * * * with the approbation of the principal officer of the treasury department". 22

The next year, 1790, Congress provided that, for the collection of import duties, "there shall be established and appointed, districts, ports and officers", with one or more districts in every State. 23 The Presidentially appointed posts of "collector, naval officer and surveyor" were retained in this regime, and once again they were to employ "weighers, gaugers, measurers and inspectors", id. sec. 6, 1 Stat. 154, presumably with the approval of the Secretary as the previous year's statute had required. 24

In 1799 Congress authorized the President to build as many as ten ships called "revenue cutters", each to be manned by "one captain or master, and not more than three lieutenants or mates, first, second, and third, and not more  [*129]  than seventy men, including non-commissioned officers, gunners and mariners." 25 (Emphasis added.) The statute provided that the President appointed the "officers" of the revenue cutters, such as the captains or masters, but did not appoint the numerous others, such as the non-commissioned officers. 26 The same statute authorized the local collectors to "provide and employ such small open row and sail boats, in each district, together with the number of persons to serve in them, as shall be necessary for the use of the surveyors and inspectors in going on board of ships or vessels and otherwise, for the better detection of frauds", but to do so "with the approbation  [**33] of the Secretary", which we take to constitute an appointment by the Secretary. 27 Cf. supra note 24.

Thus, almost all of the persons employed for external revenue collection under the early statutes either were appointed by the President or the Secretary, or else were temporary (i.e., the deputies, occasional inspectors, and persons "specially appointed"). The only permanent non-appointed positions referenced in the statutes were the "non-commissioned officers, gunners and mariners" for revenue cutters. 28

Thus the Department of the Treasury and its external revenue staff were virtually all "appointed". However, the internal revenue personnel (the predecessors of today's IRS) were treated differently, as we now show.

3. Internal revenue collection

In 1792 Congress established the office of the Commissioner of the Revenue, who was responsible for collection of internal revenue. See supra note 16. In the previous year Congress had already provided that the United States was divided into fourteen districts for the purpose of collecting Federal revenue, both internal and external, and it had  [*130]  authorized for each district "a supervisor" and "inspectors" who were to be appointed by the President with the advice and consent of the Senate. 29 However, that 1791 Act had also provided "[t]hat the supervisor of each district shall appoint proper officers to have the charge and survey of the distilleries within" the district, 30 with no requirement that the Secretary's approval be obtained.

A 1794 internal revenue statute that imposed duties on carriages provided for duties to "be levied, collected, received and accounted for, by and under the immediate direction of the supervisors and inspectors of the revenue, and other officers of inspection". 31 A similar act in 1796, also imposing duties on carriages, referred to "officers or persons employed under" the supervisors and inspectors. 32 In 1798 the supervisors were authorized to hire clerks. 33 These "proper officers" (authorized in 1791), "other officers of inspection" (authorized in 1794), "officers or persons employed under" them (referred to in 1796), and clerks (authorized in 1798) were thus not appointed by the President nor by the Head of a Department.

In July 1798 Congress imposed a direct tax of $2 million, apportioned among the states, to be assessed on "dwelling houses, lands and slaves". 34 In the same month Congress provided for the appointment of additional internal revenue personnel to perform the necessary enumerations and valuations. Act of July 9, 1798 ("An Act to provide for the valuation of Lands and Dwelling-Houses, and the enumeration of Slaves within the United States"), ch. 70, sec. 1, 1 Stat. 580. For revenue purposes Congress subdivided the States into various "divisions", id., and provided that the President would appoint a "commissioner" for each division, id. sec. 3, 1 Stat. 584.  [*131]  (Each of the commissioners was authorized to appoint a clerk, id. sec. 5; and as is noted below, each commissioner was authorized in 1800 to appoint his own "assistant".) The commissioners within the several States were authorized collectively to "divide their respective states into a suitable and convenient number of assessment districts, within each of which they shall appoint one respectable freeholder to be principal assessor, and such number of respectable freeholders to be assistant  [**37] assessors, as they shall judge necessary for carrying this act into effect". Id. sec. 7 (emphasis added). These assessors and assistant assessors (appointed not by the President or the Secretary but by the Presidentially appointed commissioners) were "to value and enumerate the said dwelling-houses, lands and slaves", id. sec. 8, 1 Stat. 585, in order to establish the tax base against which the tax would be collected. One commentator observed:

The tax on land, dwellings, and slaves (1798) * * * involved a wide area of official discretion. It required a valuation of property * * * for which Congress formulated some general rules that left the assessment largely to the judgment of local assessors—but subject to an administrative review.

Leonard White, The Federalists: A Study in Administrative History, 452 (1948).

For the collection itself, the 1798 Act provided that the supervisors (Presidentially appointed) were "authorized and required to appoint such and so many suitable persons in each assessment district within their respective districts, as may be necessary for collecting the said tax". Act of July 14, 1798, ch. 75, sec. 4, 1 Stat. 599. If a property owner did not pay the tax upon demand, then the "collector" (again, appointed not by the President or the Secretary but by the Presidentially appointed supervisors) 35 could "proceed to collect the said taxes, by distress and sale of the goods, chattels or effects of the persons delinquent". Id. sec. 9, 1 Stat. 600.

Another statute from 1798 allowed a property owner who disputed a valuation to appeal the matter to the principal assessor. Act of July 9, 1798, ch. 70, secs. 19 and 20, 1 Stat. 588. (No provision is made for a further appeal to the Presidentially appointed commissioner, but the commissioner did  [*132]  have the power "to revise, adjust and vary the valuations * * * as shall appear to be just and  [**39] equitable". Id. sec. 22, 1 Stat. 589. 36 The right of appeal from an assessor's valuation did have an exception: Where a property owner had submitted a property list that a court found to be "false and fraudulent", the assessor was authorized to make a valuation and enumeration "from which there shall be no appeal".

This 1798 Act provided for an additional official appointed neither by the President nor by the Secretary: The supervisors and inspectors (i.e., created in the 1791 and 1794 Acts) were authorized "to depute one skilful and fit person, in each assessment district, to be surveyor of the revenue". Id. sec. 24 (emphasis added). 37 A "surveyor of the revenue" was a position different from the "surveyors" appointed by the President pursuant to the original 1789 Act. The principal duties of the surveyor of the revenue were: (1) to preserve "the records of the lists, valuations and enumerations" made pursuant to the Act; (2) to make appropriate charges and credits when property was sold; (3) to apportion value when property was divided; (4) to value and assess newly built houses; and (5) subject to the approval  [**40] of the (Presidentially appointed) inspector of the survey, to reduce valuations when property was damaged or destroyed. Id. sec. 25. (In 1800 the surveyor of the revenue was also empowered, when property had been omitted from the lists, to "make a list and valuation thereof". 38)

In 1800 the Presidentially appointed commissioners were permitted to hire "such assistants as they shall find necessary, and appoint for that purpose", i.e., for the purpose of completing additions to or reductions of assessments that the commissioner has directed. 39

In sum, the early internal revenue statutes authorized the employment not only of Presidentially appointed supervisors and inspectors but also of the following personnel who were not appointed by the President or the Secretary (and whose positions were not temporary, like the deputies'):

 [*133]  • "proper officers to have the charge and survey of the distilleries", Act of Mar. 3, 1791, ch. 15, sec. 18;

•  [**41] "officers or persons employed under" the supervisors and inspectors, Act of May 28, 1796, ch. 37, sec. 11;

• "clerks" hired by the supervisors and commissioners, Act of July 11, 1798, ch. 71, sec. 2; Act of Apr. 6, 1802, ch. 19, sec. 5;

• "principal assessors" and "assistant assessors", Act of July 9, 1798, ch. 70, sec. 7;

• "collectors", Act of July 14, 1798, ch. 75, secs. 4, 9;

• "surveyors of the revenue", Act of July 9, 1798, ch. 70, sec. 24; and

• "assistants" to the commissioners, Act of Jan. 2, 1800, ch. 3, sec. 2.

The 1802 Roll, at 280-288, lists 16 Supervisors and 24 Inspectors, thus totaling 40 Presidentially appointed internal revenue personnel. It also lists 40 clerks, 361 collectors, 34 collectors' clerks, and 102102 "Auxiliary officers" (apparently a generic term for the other personnel authorized in the statutes). The "collectors and auxiliary officers, appointed by the supervisors", id. at 261 (emphasis added), are significantly more numerous than the Presidentially appointed supervisors and inspectors.

E. Subsequent appointment of internal revenue personnel

In his first inaugural address, President Thomas Jefferson called for the repeal of the original internal revenue taxes,  [**42] and that repeal took place in 1802. 40 Thereafter there were four iterations of the internal revenue tax, before the modern regime that is still in place today; 41 and the pattern of appointments that had been set for internal revenue in the late 18th century was followed in those four subsequent internal revenue statutes. That is, non-appointed personnel hired by persons inferior to the Secretary of the Treasury had more than ministerial responsibility in internal revenue statutes enacted during the War of 1812, 42 during the Civil  [*134]  War and Reconstruction, 43 after the ratification of the 16th Amendment, 44 and in connection with the first World War. 45

The pattern set in the late 18th century persists today: HN7 The general authority of the Secretary of the Treasury is described in 31 U.S.C. sec. 321 (2006), and it does not include employment or appointment of internal revenue personnel. "The Secretary of the Treasury is authorized to appoint  [**45] * * * such attorneys and other officers and employees as he may deem necessary" in the Customs Service for external revenue collection, 19 U.S.C. sec. 2072(a) (2006); but the Secretary does not generally make appointments for internal revenue collection. Rather, "the Commissioner of Internal Revenue is authorized to employ such number of persons as the Commissioner deems proper for the administration and enforcement of the internal revenue laws". Sec. 7804(a).

[Tucker v. Comm'r, 135 T.C. 144 (2010)]

McNally v. United States, 483 U.S. 350 (1987)

Fraud in its elementary common law sense of deceit -- and this is one of the meanings that fraud bears [483 U.S. 372] in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir.1985) -- includes the deliberate concealment of material information in a setting of fiduciary obligation.A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them, he is guilty of fraud. When a judge is busily soliciting loans from counsel to one party, and not telling the opposing counsel (let alone the public), he is concealing material information in violation of his fiduciary obligations.

* * * *

Second, the systematic and long-continued receipt of bribes by a public official, coupled with active efforts to conceal the bribe-taking from the public and the authorities . . . is fraud (again in its elementary sense of deceit, and quite possibly in other senses as well), even if it is the public, rather than counsel, that is being kept in the dark. It is irrelevant that, so far as appears, Holzer never ruled differently in a case because of a lawyer's willingness or unwillingness to make him a loan, so that his conduct caused no demonstrable loss either to a litigant or to the public at large. See, e.g., United States v. Keane, 622 F.2d 534, 541, 546 (7th Cir.1975); United States v. Lovett, 811 F.2d 979, 985 (7th Cir.1987); United States v. Manton, 107 F.2d 834, 846 (2d Cir.1939). How can anyone prove how a judge would have ruled if he had not been bribed?

[McNally v. United States, 483 U.S. 350 (1987)]