Jonathan
Forum Replies Created
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Hi there,
I did find this.
Some of the links may not work anymore but the information is interesting to read
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Let’s first start with the form on its face, and the instructions that accompany it.
The IRS claims that this Form is required to be provided to all payors of amounts which exceed $600 for the year for payee TIN certification, or that the payor is to “backup withhold” 31% of the remuneration paid.
The Form states on its face in the upper right hand corner, “Do not send to the IRS”. Since there is no law which absolutely requires that a U.S. Citizen register with the Social Security Administration, and thus be assigned a number, there can be, and is, no law requiring the providing of a number to a payor.
This is proved by:
26 CFR 1.6041A-1(a) (for a pdf copy click here)
This legal position is also proved by the fact that there is no Office of Management and Budget (OMB) control number on the form.
In 1980, the Paperwork Reduction Act required that all Executive Agencies, including the IRS, were required to submit all Forms required to be completed by U.S. Citizens to the OMB for approval, along with the citation of the law which the forms were fulfilling.
This was so that Citizens would know if the form they were being presented with was a legal form that they were required by some law to submit, or if it was a form stemming from merely an offhand or casual request for which there is no binding legal authority.
There is no OMB Control number on the W-9, therefore there we know that there must be no law requiring the submittal of a number to a payor, at least in regard to U.S. Citizens. Therefore, the IRS neither has authority to use it as any form of evidence, nor can they require that it be sent to them. It appears that the comment in the upper right hand corner is an admission of this so that if it was sent to them, they have plausible deniability that it was not sent to them in accordance with any kind of legal request or demand, under any assumed authority.
As for the claim by the IRS that, if the Form is not provided, the payor is to impose backup withholding of 31%, we must examine the form. On the form you will see that the person executing this form is stating that the number provided by them as theirs is correct, under “penalty of perjury”. This is what the form requires, yet the statute regarding backup withholding for payee certification failure (that is, failure to certify that your TIN/EIN/SSN is correct), 26 U.S.C. § 3406(e)(1), plainly states that the number can only be required, by the Secretary, to be provided under penalty of perjury in regards to “interest, dividends, patronage dividends, and amount subject to broker reporting.“
Obviously this provision of law is restricted in its application. The remainder of subsection (e) only covers back-up withholding from the use of an incorrect number or a notified underreporting. So, if you did not provide an incorrect number, and are not required to provide a number “under penalties of perjury” pursuant to this section, or the payor has not been notified of an underreporting, can the backup withholding in this section of law legally apply?
In order to answer that question we must have the following components, that we will simultaneously reveal are missing:
First there must be a “manner required” by which a number must be submitted (which there is not in regards to U.S. Citizens as they are not by law subject to the Social Security Act and cannot be compelled to possess or apply for an SSN/TIN).
Second, there has to be a “failure” to provide a number, which there cannot be as there is no law requiring a U.S. Citizen to be subject to the Social Security Act, to then be required to have a number, to fail to provide. The IRS has failed to provide the OMB with a law requiring U.S. Citizens to provide numbers on the W-9. We doubt that they will any time soon.
Third, there has to be a “reportable payment” pursuant to 26 U.S.C. § 3406(b)(1).
Fourth, in order to have a reportable payment, there must be a payment that is “required” to be submitted to the IRS on a return, as set forth in 26 U.S.C. § 3406(b)(2) & (3).
So what happens if a return is not required to be made?
The two main sections of law requiring the filing of a return as cited by 26 U.S.C. § 3406(b)(2) & (3) that apply to most people are §§ 6041 and 6041A . The first and easiest section of law to deal with is § 6041.
If you have read the law, you will see a complete absence of any requirement by § 6041 for the payee to provide a TIN/SSN/EIN. This eliminates § 6041 from being a law that requires the payee to provide a TIN/SSN/EIN, therefore, § 3406(a)(1)(A) backup withholding has a difficult time applying to this particular reportable payment. (NOTE: A regulation can not legally expand the meaning of the words in the statute, thus any requirement in the regulation for a number is beyond the statutory authority.)
The regulations for this section (26 CFR § 1.6041-6 ) concurs with the requirement of the name and address of the recipient of the remuneration to be on the form. Still there is no requirement that an identifying number be placed on the form pursuant to this regulation. Instead, the regulation defers the requirement to 26 U.S.C. § 6109, which alludes to a prior legal requirement (26 CFR § 301.6109-1(b)). This section of the regulations will be reviewed in detail later in this article, but at this time we will make some comments regarding 26 U.S.C. § 6109. The most important thing to point out about this statute is that the law presumes or assumes that the person whom the return is to be made on has a TIN to begin with. Since subsection (d) states that the SSN of an individual is to be their TIN, where is the legal requirement of U.S. Citizens to have such a number in the first place, so as to then provide it? (See our SSA article)
Also, the law is constructed upon, and is therefore dependent upon, a prior or pre-existing requirement that a person provide an identifying number to a person making a return regarding them. This law assumes at subsections (a), (a)(2), and (h)(3) that there is a legal requirement, so that one must provide the assumed/presumed number, as set forth in a specific regulation as required in a statute.
Where is the regulation requiring the number on the return?
Is it us, or are you also seeing this search for the regulatory requirement to disclose a TIN to be circular between 26 CFR §§ 1.6041-6, 26 U.S.C. § 6109, and 26 CFR § 301.6109-1?
It is remarkable to note, in subsection (c), that the Secretary is only given authority to require information to be given in the assignment process, which is obviously set forth in the Social Security Act, as the SSN for individuals is to be the TIN. Still, the Secretary has not been given authority to assign numbers to any person under this law, just require specific information of those in the application process. (See the SSA article) Therefore, there is still no law enacted by the authority of the Congress that requires the assignment of a social security number card to U.S. Citizens.
As our argument stands, “Please show us the statute which forces, by the Rule of law and power of our Government, application, registration, and assignment without the voluntary act of application?”
The next law is § 6041A, and if you examine subsection (a)(2) there is no requirement that the payor provide a number to the IRS regarding such returns. Since this is not all that is located in this subsection, I must point out that the return is to be made according to the “forms or regulations” set forth by the Secretary. (NOTE: The regulations are law, not the forms. This is a well-determined fact. Also, how do we know which Form is required to be issued according to this statute when there are no regulations?) Subsection (f)(1) appears to be an after thought, as the entirety of § 6041A (otherwise it would be §6042) states that the payee must provide his identification number upon request of the payor, and that the number is required to be included on the return pursuant to subparagraph (2).
By what authority does the law assume that the payee has an identifying number?
Nevertheless, the statute says that the number will only be required to be provided (assuming there is an identifying number) pursuant to the requirements of the regulation the Secretary promulgates. So, we must now go to 26 CFR and find a regulation for 6041A, but we cannot as there are neither any Temporary nor any Permanent regulations for this law. Thus, there is no requirement under the internal revenue laws for a person to provide an identifying number to a payor pursuant to 26 CFR § 6041A, therefore, backup withholding pursuant to § 3406(a)(1)(A) cannot apply as there is no manner required by law to provide a number.
On the other hand, there is a “Proposed regulation” for § 6041A at 26 CFR § 1.6041A-1 (for a pdf copy click here). It has been proposed since 1986 and it reveals that no return is required to be filed pursuant to § 6041A , if the remuneration paid is “excludable” from gross income pursuant to a section of the internal revenue laws, if the payee informs the payor of this fact and the payor does not know the facts to be otherwise. Therefore, if the payee provides a statement under penalty of perjury, to the payor, that the money paid to the payee is remuneration excluded from gross income, there is no requirement by law for a return to be made. Therefore, backup withholding would not apply, as the payment is not a payment that requires a return pursuant to 26 U.S.C. § 3406(b)(3).
It is apparent that back-up withholding can only be assessed against a person who is required to provide a social security number “under penalties of perjury“(a non-resident alien), has lied when he claimed to have provided a correct number “under penalties of perjury“, and/or is a non-resident alien who is required to possess a social security number, who is thereby subject to taxation under Subtitle C of the IRC, “Employment Taxes” and the income tax, and has not provided a social security number as required by 26 U.S.C. § 3406(a)(1). This must be the case, as it is well established in our SSA article that the Social Security Act and Subtitle C are not necessarily applicable to U.S. Citizens, and § 3406 being in Subtitle C, Employment Taxes, is wholly dependent upon the person in question being subject to the Social Security Act.
We must note at this time that 26 U.S.C. § 3406(h) states that the money that is backup withheld is to be treated as taxes withheld under § 3402. This would indicate that no amount of money may be withheld under backup withholding without a hand delivered letter from the Local District Director, pursuant to 26 U.S.C. § 7512 and its regulations, and not the whimsy of any low level IRS Official, mere publication, or unsigned computer form letter.
In an attempt to close this article, it would not be fair to leave out the only point that most tax professionals love to make when sending out a payor’s demand for identifying numbers. I must point out that even if a return was required, which is not always the case, the only penalty is in Proposed Regulation 26 CFR § 1.6041A-1(h).
I suppose it is a good thing that there are no actual regulations regarding the provision of the number for § 6041A. Then again the section of law cited in the proposed regulation at subsection (h) is IRC (U.S.C.) § 6676 which has been repealed. Even IRC § 6724, which was indicated by the EEOC as the section of law now carrying the penalty for the payor not providing the number they have, lacks any regulatory requirement that a payee provide a TIN to a payor, as the penalty claimed in its regulation 26 CFR § 301.6724-1(e)(2) is cited as 26 U.S.C. § 6723.
This law imposes a $50 penalty for not providing a number when requested to do so. The specifics of such a circumstance are set forth in 26 CFR § 301.6723-1(a)(4)(c). This penalty is wholly dependent upon the requirement of the regulations of 26 U.S.C. § 6109 (26 CFR § 301.6109-1) where there is no requirement that anyone be forced or required by a payor to provide a social security number to the requestor, only that the payor make the request for the number as so required (subsection (c)).
It is a fact of law that there is a requirement in subsection (b) that U.S. persons (not identified as Citizens) furnish their number if “required” on a return, upon request. This assumes that the U.S. person has a number, which we have shown in our SSA article to not be required of U.S. Citizens.
Although subsection (b) mentions a penalty, the requirement to provide the number is phrased to be dependent upon a pre-existing or outside requirement for disclosure relating to the return. The only foundation for such a requirement can only be in the specific statutes regarding the specific returns, as all authority proceeds from that point for the Secretary to implement.
So, who is this U.S. person? Is it possible that a U.S. person is not a Citizen?
It is apparent that the U.S. Citizen has the right to not participate in the benefits of the social security program as set forth in subsection (d), but they must obtain a number if they are “required” to furnish a number pursuant to subsection (b). Still, subsection (b) does not take the responsibility for creating the requirement referenced in (d).
When examining the alleged requirement chasing itself between subsections (b)) and (d) of 301.6109-1, which came first, the requirement to apply for a number to provide it for return purposes, or the requirement to provide a number and thus the need to apply for it?
Is it any wonder that the author researcher told you that his head was spinning when we began this article? Did you think that he was kidding?
Is it us, or are you also seeing this search for the regulatory requirement to obtain a taxpayer identification number to be circular, and simultaneously dependent upon a disclosure requirement that does not exist?
If there was a law requiring that one have a number, why must there be a law allegedly requiring that the person so required make a voluntary application for that which would then be forcibly issued?
Can the $50 penalty or the backup withholding (pursuant to 26 U.S.C. § 3406(a)) be legally and lawfully applied to the U.S. Citizen (who does not have to have a number) if the person making a return decides that the Citizen is required to have the return issued on him, despite the fact that § 6041(a) & (c) does not require that he provide a number and therefore there is no requirement that a number be placed on the return as set forth in the words of the statute?
Can the $50 penalty or the backup withholding (pursuant to 26 U.S.C. § 3406(a)) be legally and lawfully applied to the U.S. Citizen (who does not have to have a number) if the person making the return decides that the Citizen is required to have the return issued on him, despite the fact that § 6041A has no regulation requiring that the Citizen provide a number to be placed on the return, or ignores the statement by the Citizen that there is no return required as the remuneration is excluded from “Gross income”?
This should be a very simple question to answer “NO” to, when the facts show that the Statutes 6041 and 6041A have either failed to give the Secretary authority to require that a number be provided to the payor, or the Secretary has not promulgated a regulation requiring the providing of a TIN.
Look at the bottom sections of 26 CFR § 301.6109-1(c). The original intent by the framers of this nation was that the bills and debts would be shouldered upon the foreigners sending money, coming to work, or establishing businesses in this land. With this still being the actual scheme of the wording of the present tax laws, why is it that it has not been until December 31, 1996 that the Secretary of the Treasury now shows some interest in numbering the non-resident aliens in this country and tracking the money they are earning in our free domestic market, a market purchased and preserved with the blood of those in America’s military history?
Please make use of the Political Action letters we have composed for your use, so that our Government Officials will be asked the real hard questions, and be informed that the People of America know the truth behind the lies now, and we will not go away…We are AMERICA, and we want corrective action taken regarding this circus of obfuscation.
This present method of operation, by our government, veiled in obscurity and perpetuated by an organizational lack of accountability has placed the duty of correcting these problems in our hands. Rightfully so, as the choice we make with our hands moves the vehicles known as our Government Officials.
Now is the time to fine tune the law to eliminate these much abused loopholes and double speak exposed in this article, and set free the U.S. Citizens who believe in freedom, independence, and enterprise, so that they may be left alone and free to prosper.
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Hi there,
I didn’t know that Dan Evans was the Quatloos guy behind that link but now that you have opened my eyes to that I will be much more aware. He appears to be an arrogant slimeball spreading lies and on a disinformation campaign.
In August 2021 I sent some old official government documentation initially addressed to some other people to three of four IRS processing centers verifying that Congress House Of Representatives did not enact a law allowing IRS to exist and a National Archives letter that IRS chose NOT to register under Title 31 as a Federal agency which tells me that they do not have any actual authority to do most of what they do.
Documentation was sent to counter IRS illegal assessments and $20,000 FRP which they later dropped.
Ogden IRS reply came back with this reply.
We have determined that the arguments you raised are frivolous and have no basis in law. Federal courts have consistently ruled against such arguments and imposed significant fines for taking such frivolous positions.
If you persist in sending frivolous correspondence, We will not continue to respond to it. Our lack of response does not convey agreement or acceptance of the arguments stated. If you desire to comply with the law concerning your tax liability, you are encouraged to seek advice from a reputable tax petitioner or attorney. The claims presented in your correspondence do not relieve you from your legal responsibilities to file federal tax returns and pay taxes. We urge you to honor these legal duties.”
Documentation from Supremelaw.org which is I also included is operated and maintained by former lawyer Paul Andrew Mitchell(30 plus years of legal experience.) who I was in email talks with earlier this year was also basically shot down and called frivolous by IRS.
I also submitted a few other documents to try to help deflate IRS world-sized ego to no avail. IRS appears to have this godly attitude that EVERYONE IS WRONG AND IRS IS A GOD mindset. It’s frustrating.
I was surprised that they called a highly experienced lawyer and two other government institutions as FRIVOLOUS. That is IRS favorite word. They call everything FRIVOLOUS.
I really am enjoying SEDM and FamGuardian. Tons of information that slices through government propaganda. So glad both exist to help set the record straight and throw off IRS oppression.
Thank you.
Truly,
Jonathan Whitney