User talk:Flytrapper

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Comments on 10 May 2006 edits by Famspear to article on Brushaber case
From Famspear To Flytrapper

Dear Flytrapper

In your recent edits on the article on the Brushaber case, you don't state what you feel is incorrect about the article as written. I have found no errors in the language that you deleted. I also argue that some of your edits are incorrect, as explained below.

You indicated that the Brushaber case is constantly misunderstood by "those who refer to constitutional adherents as tax protesters." I argue that your statement is incorrect.

First, tax protesters, to the extent they make arguments about the constitutionality of the tax, are generally arguing that the tax is unconstitutional. By definition, tax protester arguments on constitutionality are not only without legal merit, the arguments are also legally frivolous. This is not merely my position or conclusion. The courts have so ruled without exception for the past 30 years. Indeed, the frivolousness of the arguments is what makes them "tax protester arguments."

This is an astonishing record. Since 1975, when the term "tax protester" was first used in reported decisions in the way we're using it, I have not found and, to the best of my knowledge, no one else has ever found, a reported Federal court decision in which a tax protester argument was ever ruled to be correct. Every single time I have seen a passage in tax protester literature that says that the tax protesters won some particular tax protester argument, the claim has turned out to be false.

Second, the supposed "misunderstanding" you believe exist stems, you say, from the erroneous belief that the Brushaber decision relieves taxes on incomes from the rule of uniformity.

I agree that such a belief would certainly be erroneous -- there's just one problem with your statement. I have never heard anybody make the argument that the Brushaber court ruled that way! Not even the tax protesters make that kind of argument! You seem to be attributing the "misunderstanding" not to the tax protesters, but to those who disagree with the tax protesters (i.e., legal scholars, lawyers, CPAs, the courts, etc.)!

More specifically, the uniformity rule is the rule that excises (i.e., indirect taxes, such as income taxes other than taxes on income from property) must be imposed with geographical uniformity.

Obviously, the Brushaber court never ruled that excises do not have to be geographically uniform. Indeed, that was not even one of the issues presented to the court in the case.

The court did refer to the uniformity rule -- because Mr. Brushaber had talked about it in one of his arguments. But neither Mr. Brushaber nor the railroad company nor the government were really disagreeing about the point that the uniformity rule applies to excises.

It may not be obvious to you, but I assure you it's unlikely anybody (tax lawyer or tax protester) would argue that Brushaber stands for the proposition that excises do not have to be imposed with geographical uniformity. Again, I've never even heard a tax protester make that argument. (I'm not saying it's never happened -- it's just I can't remember ever seeing it, and more importantly it wouldn't make sense for tax protester or anyone else to argue that Brushaber stands for the proposition that Congress could impose an income tax in, say, only New York and Montana -- and not impose the same tax in all the other states.)

Bottom line: If legal scholars were to misunderstand Brushaber as ruling that excises did not have to be uniform, legal scholars would in effect be saying Brushaber stands for the proposition that Congress could validity enact an excise that was imposed only in some states but not others! I have studied the Federal income tax laws for 29 years and I cannot remember ever seeing anyone make such an argument, especially not a tax lawyer, CPA, law professor, or IRS employee. If someone has ever made such an argument, they would be in a very, very small minority.

Next, your comments in the talk page to the effect that the term "tax protester" shouldn't be used are, I argue, off base. "Tax protester" is a term that has negative connotations, and some people undoubtedly become very angry when the term is used to describe them. Congress in 1998 passed a law forbidding IRS employees from using the term in IRS documents.

However, using the term in Wikipedia does not violate the rule against non-neutral point of view. Indeed, "tax protester" is still a technical legal term used constantly by the courts to describe arguments against the Federal income tax that are not only legally meritless, but which have been repeatedly ruled meritless. When courts or others use the term "meritless" or "without merit" or "frivolous" to describe the tax protesters' arguments, that probably makes the protesters very angry as well. However, these are formal legal terms. In Wikipedia, we do not censor ourselves with respect to the use of legal terminology merely because the use of that terminology offends people. Sorry. (I note that you did not actually delete the term "tax protester" from the article itself, and I commend you on that.)

Regarding your statement that the Court's decisions repeatedly assert that income taxation inherently belongs in the category of indirect tax -- yes, this is very close to be correct. In Brushaber the court used terminology very close to that. However, the Court also said that it was not overturning the Pollock ruling that tax on income from one particular source -- namely, income from property -- was a direct tax. What the Brushaber court essentially said was that the Sixteenth Amendment made the dichotomy legally irrelevant. If you want, I can quote the exact wording from the decision.

I am currently working on the history of the Brushaber case and I may actually be making further edits on this article. You are correct that this decision is "misunderstood" -- however, I argue that your edits muddied the water a bit more, rather than clarifying.

Any comments? Yours, Famspear 20:30, 10 May 2006 (UTC)

Oh, another thing. I'd like to point out that many tax protesters have been unhappy with my edits here in Wikipedia. If I were simply trying to refute tax protester arguments, and if I wanted to support any argument that opposed tax protester arguments, it would have been easy for me not to question your statement that income taxation inherently belongs in the category of indirect tax. Indeed, the Brushaber court stated almost exactly that very thing. That statement would tend to support the assertion that an income tax law (after the 16th Amendment) is not subject to the rule of apportionment -- a rule of law which I know to be correct. Had I been dishonest, I could have simply let that statement stand in the article. But what the court was saying -- if you read the entire case -- was that the 16th Amendment did not change the Pollock ruling that income taxes on income from property were treated as direct taxes. The court was essentially saying that AS A GENERAL RULE ("generically" I think was the word the court used) an income tax is an excise, but that income taxes on income from property were still direct taxes -- because of Pollock. The Brushaber case, to be very specific, means in this context that IT NO LONGER MATTERS. The plain language of the Amendment says income taxes on income FROM WHATEVER SOURCE DERIVED (meaning income from property, income from labor, etc.,) may be imposed without apportionment, etc. Neither the amendment nor the court in Brushaber stated that income taxes on income from property were specifically re-denominated as indirect taxes in the way they were denominated prior to the Pollock decision.

Brushaber is a difficult case to read. It contains archaic language and periphrasis, or circumlocutory expression. It contains language that can certainly result in confusion. But I assure you that the meaning of Brushaber can be distilled if we study it long enough.

By the way, there is some argument that the Pollock decision -- that income taxes on income from property were direct taxes -- was essentially eviscerated by a decision rendered AFTER Brushaber. That is a separate point. In other words, you might make the argument that TODAY all income taxes are considered indirect taxes (I don't really care right now). I'm just saying that the Brushaber court did not make that specific ruling. Yours, Famspear 22:58, 10 May 2006 (UTC)


 * Dear Flytrapper: Just a note -- I haven't forgotten about our Brushaber discussion. "Real life" has pulled me away from Wikipedia a lot lately. Eventually, however, I do want to do a complete analysis of all the holdings in Brushaber. It's just gonna take a while to get to it. As an aside, since you have been interested in the concept of the uniformity clause, we might want to do something on that as well. If you want to take a stab at analyzing the case law on uniformity, be my guest. Maybe any "article-quality" discussion we come up with on uniformity should go in a separate article - I'm not sure. Anyway, stay tuned. Yours, Famspear 15:59, 14 June 2006 (UTC)

Dear Flytrapper -- Another note -- I have just made some provisional edits to the Brushaber article to try to at least get the article to something we can both agree on for the time being. Please check it out and see what you think.

I put in a separate section on your point about uniformity.

I also changed the sections on the holding(s). In this case, as in many court cases, there are actually multiple holdings, so this will be greatly modified later. As you may know, a mere quote from a court decision does not constitute a statement of a "holding" or ruling in the case.

On another point, the verbiage implying that "tax protesters" are "constitutional adherents" simply does not belong in an encyclopedia article. By definition, tax protester arguments are not only incorrect from a legal standpoint, the arguments are often ruled legally "frivolous." Many tax protesters of course in effect argue that they are following the constitution, but what the constitution means is a matter of law. As a matter of law, under the U.S. legal system only the courts are authoritative on what the constitution means when a case is actually litigated.

Further, the reference to those who refer to "constitutional adherents" as "tax protesters" as somehow "misunderstanding" Brushaber as standing for the proposition that indirect taxes don't have to be uniform is simply incorrect. As far as I know, no reputable legal scholar has ever tried to make that argument. The arguments between legal scholars and tax protesters (with respect to 16th Amnd & Brushaber) are almost always about apportionment -- not uniformity.

More on this later! Yours, Famspear 17:52, 14 June 2006 (UTC)

PS, Dear Flytrapper: Also, I understand your point about direct taxes and indirect taxes and constitutional relevancy. In a few places, I had made the blanket statement that the dichotomy was no longer relevant, and that was theoretically incorrect. What I meant was that the dichotomy was no longer relevant in the context of the apportionment rule -- which is what the big battle was about in Pollock, resulting in the Sixteenth Amendment and cases like Brushaber. For example, I agree that the direct-indirect dichotomy could theoretically be relevant if the Congress were to try to impose an indirect tax that was not geographically uniform (to use the example I had used, an indirect tax imposed only in New York and Montana). I should have been more precise about what I was saying. Yours, Famspear 20:30, 14 June 2006 (UTC)


 * If we did away with the income tax, the government would just adopt a different taxation system... the money would still come out of your pocket. BD2412  T 00:57, 23 June 2006 (UTC)