As the defendant's income was taxed, the statute of course required
a return. See United States v. Sischo,
262 U.S. 165 , 43 S. Ct. 511. In the decision that this was contrary
to the Constitution we are of opinion that the protection of the Fifth
Amendment was pressed too far. If the form of return provided called
for answers that the defendant was privileged from making he could have
raised the objection in the return, but could not on that account refuse
to make any return at all. We are not called on to decide what, if anything,
he might have withheld. Most of the items warranted no complaint.
It would be an extreme if not an extravagant
application [274 U.S.
259, 264] of the Fifth
Amendment to say that it authorized a man to refuse to state the amount
of his income because it had been made in crime.
But if the defendant desired to test that
or any other point he should have tested it in the return so that it
could be passed upon. He could not draw a conjurer's circle around the
whole matter by his own declaration that to write any word upon the
government blank would bring him into danger of the law. Mason v. United
States,
244 U.S. 362
, 37 S. Ct. 621; United States ex rel.
Vajtauer v. Commissioner of Immigration ( January 3, 1927)
273 U.S. 103
, 47 S. Ct. 302. In this case the defendant
did not even make a declaration, he simply abstained from making a return.
See further the decision of the Privy Council, Minister of Finance v.
Smith (1927) A. C. 193.
[United
States v. Sullivan, 274 U.S. 259 (1927)]
26 U.S.C. Sec. 7203: Willful Failure to File
Any person required
under this title to pay any estimated tax or tax, or required by this
title or by regulations made under authority thereof to make a return,
keep any records, or supply any information, who willfully fails to
pay such estimated tax or tax, make such return, keep such records,
or supply such information, at the time or times required by law or
regulations, shall, in addition to other penalties provided by law,
be guilty of a misdemeanor and, upon conviction thereof, shall be fined
not more than $25,000 ($100,000 in the case of a corporation), or imprisoned
not more than 1 year, or both, together with the costs of prosecution.
In the case of any person with respect to whom there is a failure to
pay any estimated tax, this section shall not apply to such person with
respect to such failure if there is no addition to tax under section
6654 or 6655 with respect to such failure. In the case of a willful
violation of any provision of section
6050I, the first sentence of this section shall be applied by substituting
''felony'' for ''misdemeanor'' and ''5 years'' for ''1 year''.
Interestingly, the statute doesn’t define the meaning of “making
a return”. Why didn’t they say “submit” a return? Because
under the Fifth Amendment to the Constitution, parties have a right
not to incriminate themselves, which means they have the right not to
submit a return! Don’t let the title above fool you! It
says “file” but the title is editorially supplied and is NOT law.
Only the content of the section is law, and it DOES NOT impose a requirement
to file, but
only to make
the return, because if it did, it would violate the Fifth Amendment
for natural persons.
Now lets look at the definition of “make”
make: 1.
b. to seem to begin (an action) 2 a: to cause to happen to
or be experienced by someone b: to cause to exist, occur, or
appear c: to favor the growth or occurrence of 5: to put
together from components: CONSTITUTE 6 a: to compute or estimate
to be b: to form and hold in the mind.[1]
So according to common usage, and because there is not definition
of the term “make”, we have to use the above definition. The tax
form is called a “return” but nowhere does it say that it must be “returned”
to anyone, nor could returning such a form ever be made mandatory because
of the privilege by natural persons under the Fifth Amendment to not
be compelled to incriminate themselves. As long as you “make”
(create) a return, which process is never defined, you can always claim
that you made it and that you
filed it, but that
you just didn’t file it with the Internal Revenue Service because they
never specifically required
you to do so ANYWHERE, nor could the IRS require you to do so under
the Fifth Amendment, or punish you for failure to do so! Because
“taxpayer” includes fictions like corporations who can be made liable
for income taxes, the statement below is accurate, but is misleading
for natural persons, to whom the section does not apply. The passage
below confirms this. If they wanted to REQUIRE natural persons
to file the return,
they would have put it in part (a) below:
26 CFR 1.6011-1
General requiremens of return, statement, or list
(a) General rule.
Every person subject to any tax, or required to collect any tax, under
Subtitle A of the Code, shall
make such returns
or statements as are required by the regulations in this chapter. The
return or statement shall include therein the information required by
the applicable regulations or forms.”
b) Use of prescribed forms. Copies of the prescribed return forms
will so far as possible be furnished taxpayers by district directors.
A taxpayer will not be excused from making a return, however, by the
fact that no return form has been furnished to him. Taxpayers not supplied
with the proper forms should
[not must] make application therefor to the district director in ample
time to have their returns prepared, verified, and filed on or before
the due date with the internal revenue office where such returns are
required to be filed
[by whom?..ONLY by corporations or elected or appointed officers of
the U.S. government liable for the tax, but not any other “natural persons”].
Each taxpayer should carefully prepare his return and set forth fully
and clearly the information required to be included therein. Returns
which have not been so prepared will not be accepted as meeting the
requirements of the Code. In the absence of a prescribed form, a statement
made by a taxpayer disclosing his gross income and the deductions therefrom
may be accepted as a tentative return, and, if filed within the prescribed
time, the statement so made will relieve the taxpayer from liability
for the addition to tax imposed for the delinquent filing of the return,
provided that without unnecessary delay such a tentative return is supplemented
by a return made on the proper form.
Do you see any definition above of WHO
can be required to file a return? There is none because they don’t
want you to know that as a natural person who isn’t an elected or appointed
political officer of the United States or an officer of a U.S.** corporation
and who lives in the 50 states, you aren’t liable for filing returns
or paying tax. This was a very successful tactic of making but
not filing a return was used by Gaylon Harrell, who was acquitted of
state charges of Willful Failure to File, and who we talk about later
in section 11.2.3 . There are also NO implementing regulations
for IRC 7203, which means that you cannot be criminally punished for
violating it according to the following cites:
“…we think it important
to note that the Act's civil and criminal penalties attach only upon
violation of regulations promulgated by the Secretary; if the Secretary
were to do nothing, the Act itself would impose no penalties on anyone.”
California Bankers Assn. v. Shultz, 416 U.S. 21 (1974)
“An individual cannot
be prosecuted for violating the act unless he violates the implementing
regulations.” United States v. Reinis, 794 F. 2d 506 (9th
Cir. 1986), United States v. Murphy, 809 F.2d 1427 (9th
Cir. 1987)
“Criminal penalties…can
attach only upon
violation of regulations promulgated by the Secretary.” U.S.
v. Reinis, 794 F.2d 506.
“Individual
cannot be prosecuted for violating Currency Reporting Act
unless he violates the implementing
regulations.” 31 U.S.C.A. §5311 et. seq.