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Statutory FallaciesMany tax protester arguments are not based on a claim that the Internal Revenue Code is unconstitutional, but that it is not a law or is somehow written in such a way as to be inapplicable or unenforeceable. These arguments often look like constitutional arguments (and are sometimes argued so badly that it difficult to tell whether the argument is constitutional or statutory), but are somewhat different.
The Internal Revenue Code is not law.The arguments that the Internal Revenue Code is not a valid statute are all strange, and take several different forms.
One form of argument is simply that the Internal Revenue Code was never enacted. This is easily disproved by checking the records of the U.S. Congress. The Internal Revenue Code of 1954 was passed by both houses of Congress as House Resolution 8300, and was signed by President Eisenhower on August 16, 1954, at about 9:45 a.m., becoming Public Law 83-591, 68A Stat. 3. The Internal Revenue Code is now known as the “Internal Revenue Code of 1986” as a result of changes made by Public Law 99-514, 100 Stat. 2085 (10/22/1986). More recent amendments to the Internal Revenue Code (as well as other public laws) can be found on-line through the “Thomas” web site maintained by the Library of Congress.
A brief note about citations to statutes: Public Laws are numbered consecutively within each session of Congress, each session lasting two years. The Congress that convened in January of 2001 was the 107th, so the first bill passed by that Congress and signed by the President was P.L. 107-1, the second was P.L. 107-2, and so forth. All public laws are published in the U.S. Statutes at Large, usually abbreviated “Stat.”, so a citation to “68A Stat. 3” refers to page 3 of volume 68A of the U.S. Statutes at Large. The U.S. Statutes at large can be found at most law libraries, so the text of the original Internal Revenue Code of 1954, and published proof of its enactment, can be found at any law library with a copy of the U.S. Statutes at Large.
The other argument is more subtle and more complicated. Many of the statutes of the United States have been “codified,” or reorganized into more orderly collections of statutes known as the “United States Code,” which is divided by subject matter into “titles.” As part of this codification, many statutes that were enacted separately have been reenacted together as part of the United States Code, so that the Code itself became “positive law.” For example, the statutes relating to federal courts have been organized and reenacted as Title 28 of the United States Code. So, when referring to a provision of Title 28, it is usually not necessary to worry about when or how it was enacted; all you need to do is refer to the right section of Title 28. For convenient reference, the Internal Revenue Code has been published as Title 26 of the United States Code but, technically speaking, has never been enacted as part of the United States Code. This is explained in the printed volumes of the United States Code, which states that Title 26 is evidence of the provisions of the Internal Revenue Code, but that Title 26 itself is not “positive law,” even though the revenue laws enacted by Congress (such as Public Law 83-591 enacted in 1954, or Public Law 99-514 enacted in 1986), all of which can be found in the U.S. Statutes at Large, are “positive law.”
The distinction between Title 26 of the United States Code and “positive law” is purely technical and would never be important to anyone unless the U.S. Government Printing Office made a typographical error in printing Title 26 of the United States Code, so that the United States Code did not accurately reflect the revenue laws enacted by Congress. If a typographical error did occur, then the courts would look to the U.S. Statutes at Large to determine the text of the relevant statute, instead of Title 26 of the United States Code.
So, the provisions of the Internal Revenue Code have been enacted by Congress as positive law, and the fact that the Internal Revenue Code as not been reenacted or codified as part of the United States Code is irrelevant.
What do the courts say about tax protester claims to the contrary?
“Indeed, as we have repeatedly held, the entire Internal Revenue Code was validly enacted by Congress and is fully enforceable.” United States v. McDonald, 919 F.2d 146, 90 TNT 246-11, No. 88-5239 (9th Cir. 11/26/1990); United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986).
“Congress’s failure to enact a title [of the United States Code] into positive law has only evidentiary significance and does not render the underlying enactment invalid or unenforceable. See 1 U.S.C. § 204(a) (1982), (the text of titles not enacted into positive law is only prima facie evidence of the law itself). Like it or not, the Internal Revenue Code is the law, and the defendants did not violate Ryan’s rights by enforcing it.” Ryan v. Bilby, 764 F2d 1325, 1328 (9th Cir. 1985).
“The petitioner’s argument that the Internal Revenue Code was not enacted by Congress is equally meritless. The Internal Revenue Code of 1954 was enacted by the 83rd Congress on August 16, 1954 (ch. 736, 68A Stat. 3) and has been amended by Congress with some frequency since that time.” Urban v. Commissioner, T.C. Memo. 1991-220, affd. per curiam, 964 F.2d 888 (9th Cir. 1992).
“In his opposition, Plaintiff asserts that ‘Title 26 U.S.C. (including section 6321) has not been enacted into positive law, and is not the law, but is only prima facie evidence of the law.’ ... Congress’ failure to enact a title into positive law has only evidentiary significance and does not render the underlying enactment invalid or unenforceable. See 1 U.S.C. section 204(a). ‘Like it or not, the Internal Revenue Code is the law’. [Citations omitted] Plaintiff’s positive law argument is without merit.” Bilger v. United States, 87 AFTR2d ¶2001-468, No. CIV F 00-6486 OWW JLO (U.S.D.C. E.D.Ca. 1/9/2001).
“On appeal he [Scott] makes the same arguments advanced and rejected countless times in tax protestor litigation, such as that the Tax Code is not binding “positive law,” and wages are exempt from taxation because they are not income. [Citations omitted] Needless to say, these contentions do not state a claim against the United States, let alone support a lien against its agents.” United States v. Scott, 1999 U.S. App. LEXIS 16877; 99-2 U.S. Tax Cas. (CCH) P50,745; 84 A.F.T.R.2d (RIA) 5342, (7th Cir. 1999).
“Similarly frivolous is his claim that a summons could not be issued because title 26 has not been enacted into ‘positive law.’” United States v. Hooper, 1995 U.S. App. LEXIS 38246; 76 A.F.T.R.2d (RIA) 8026, 1995 WL 792039 at *1 (9th Cir. 1995).
“Finally, we reject as frivolous Kolchev’s remaining contentions asserting that his wages are not taxable income, see 26 U.S.C. § 61, that notices of deficiency may only be issued to government employees, [citation omitted], that the IRS code is not enforceable because it has not been enacted into positive law, [citation omitted], and that the Commissioner lacked delegated authority to issue the notice of deficiency, [citation omitted].” Kolchev v. Commissioner, 1995 U.S. App. LEXIS 2683; 75 A.F.T.R.2d (RIA) 839, (9th Cir. 1995).
“The appellant’s argument regarding the validity of Title 26 is frivolous. The validity of Title 26 is not affected merely because it has not been codified as ‘positive law’.” Hackett v. Commissioner, 791 F.2d 933 (6th Cir. 1986).
“The claim that Title 26 was not enacted into ‘positive law,’ has been rejected as ‘frivolous,’ ‘baseless,’ ‘specious,’ and ‘preposterous.’ [Citations omitted]” United States v. Maczka, 957 F.Supp. 988, 991 (W.D.Mich. 1996).
See also, United States v. Zuger, 602 F.Supp. 889, 891-92 (D. Conn. 1984) (‘holding that the failure of Congress to enact a title as such and in such form into positive law . . . in no way impugns the validity, effect, enforceability, or constitutionality of the laws as contained and set forth in the title’ and describing argument as “specious”), aff’d. without op., 755 F.2d 915 (2d Cir.), cert. denied, 474 U.S. 805 (1985); Young v. Internal Revenue Service, 596 F.Supp. 141, 149 (N.D.Ind. 1984) (asserting that ‘even if Title 26 was not itself enacted into positive law, that does not mean that the laws under the title are null and void’ and referring to the “positive law” argument as “preposterous”); United States v. Cooper, 170 F.3d 691 (7th Cir. 1999); United States v. Sloan, 939 F.2d 499, 500 (7th Cir. 1991), cert. den. 112 S.Ct. 940 (1992); Coleman v. Commissioner, 791 F.2d 68, 70 (7th Cir. 1986); Lovell v. United States, 755 F.2d 517, 519 (7th Cir. 1984); Sullivan v. United States, 788 F.2d 813, 815 (1st Cir. 1986); Sloan v. United States, 621 F.Supp. 1072, 1076 (N.D.Ind.1985) (litigants advancing ‘frivolous’ arguments such as assertions that the Internal Revenue Code is not positive law subjected to sanctions under Rule 11, FED. R. CIV. P.), aff’d in part and appeal dismissed, 812 F.2d 1410 (7th Cir.1987) (table).
The claim that “[t]he Internal Revenue Code is not law (or ‘positive law’)” has been identified by the IRS as a “frivolous position” that can result in a penalty of $5,000 when asserted in a tax return or included in certain collection-related submissions. Notice 2007-30, 2007-14 I.R.B. 883.
Rome wasn't built in a day......but they sure didn't
waste any time burning it down!
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