Note by Bob Newland: I sent this cover letter, with 1040's containing "0"'s in every appropriate space, in 1996 and 1997. Each time, the IRS sent me a letter, saying I had filed a "frivolous" return, and they were assessing me $500. Each time, I wrote the IRS back, saying that it had filed a "frivolous" notice, and that I was assessing it $500. 

---

Robert J. Newland

HC 89 Box 184-A

Hermosa SD 57744

 

April 1997

 

Director

Internal Revenue Service Center

Ogden UT 84201

Director:

I am submitting this statement as part of my 1996 income tax return.

Even though I know that no section or sanction of the Internal Revenue Code:

1) establishes an income tax "liability", as, for example, do Code Sections 4401 (wagering), Section 5005 (distillers), and Section 5703 (tobacco); or

2) provides that income taxes "have to be paid on the basis of a return", as, for example, Code Sections 4374, 4401(c), 5061(a) and 5703(b) provide with respect to other taxes;

I am filing anyway, because I know that the government has prosecuted others for failing to file income tax returns by (erroneously) invoking Code Sections 7201 and 7203. Therefore this return is not being filed voluntarily, but is being filed out of fear that if I did not file this return, I could be (illegally) prosecuted for failing to file an income tax return for the year 1996.

In addition to the statements above, I am filing even though the "Privacy Act Notice", as contained in a 1040 booklet, clearly informs me -- in at least two places -- that I am not required to file.

a) In one place, it states that I need only file a return for "any tax I may be liable for". Since no Code Section makes me "liable" for income taxes, this Notice notifies me that I do not have to file an income tax return;

b) In another place, it directs me to Code Section 6001. This section provides, in relevant part, that "Whenever in the judgment of the Secretary it is necessary, he may require any person by notice served upon such person; or by regulations, to make such returns, render such statements, or keep such records, as the Secretary deems sufficient to show whether or not such person is liable for the tax under this title." Since the Secretary of the Treasury did not serve me with any such notice and since no legislative regulation ixists requiring anyone to file an income tax return, I am again informed by the "Privacy Act Notice" that I am not required to file an income tax return.

c) In addition, 26 CFR 602.101 does not list a form 1040 (OMB# 1545-0074) as even being applicable to the income tax imposed in §1 of the IRS Code. This regulation refers the public to a return with the OMB number 1545-0067, which I discover is for "Foreign Earned Income". Since I have no foreign income to report, there seems to be no other document or return which 26 CFR 602.101 makes applicable to the income tax imposed in §1 of the Internal Revenue Code.

d) §§ 6103(h) & (i) provide that all return information can be used against me to determine and impose both criminal and civil fines and penalties. Therefore, I do not see how any law can compel me tp provide information to the government that can be used against me in this manner, consistent with my Fifth Amendment right not to be compelled to be a witness against myself. (Fifth Amendment protection applies to any proceeding -- civil or criminal, administrative or judicial -- and may be invoked in connection with federal income taxes. See U.S. v Argomaniz, 925 F2d 1349 (11th Cir. 1991); Cincinnati v Bawtenheimer, (63 Ohio St 3d 260)

With respect to the information I included in my attached return, I wish to point out that the courts have ruled that "A (1040) form with 'zeroes' inserted in the spaces provided ... qualified as a return." --US v Long (618 F2d 74 (9th Cir. 1980); US v Kimball, 896 F2d 1218 (9th Cir. 1990); US v Moore, 627 F2d 830 (7th Cir. 1980). Also a Las vegas bankruptcy court held that "Zeroes entered on a Form 1040 constitutes a return." (Cross v US, 91-2 USTC p. 50, 318; Bankr L. Rep. p 7404)

It should also be noted that I had "zero" income accrding to the Supreme Court's definition of income (see Note #1 below), since in Merchant's Loan and Trust co. v Smietanka, 255 US 509 (at pp. 518 and 519), that court held that "The word (income) must be given the same meaning in all of the Income Tax Acts of Congress that was given to it in the Corporation excise Tax Act of 1909." Therefore, since I had no earnings in 1996 which would have been taxable under the Corporation Excise Act of 1909 as "income", I can only swear to having "zero" income in 1996. Obviously, since I know the legal definition of "income", if I were to swear to having received any other amount of income, I would be swearing falsely, and thus would be committing a crime under both 18 USC 1621 and 26 USC 7206. Not wishing to violate either of those statutes (nor any other), I can only swear to having "zero" income for 1996.

Note #1: The word "income" is not defined in the Internal Revenue Code (US v Ballard, 535 F2d 400, 404), but as stated above, it can only be a derivative of corporate activity. The Supreme Court has held this numerous times. "Whatever difficulty there may be about a precise and scientific definition of 'income', it imports, as used here ... the idea of gain or increase arising from corporate activities ...." (Doyle v Mitchell, 247 US 179). "Certainly the term 'income' has no broader meaning in the 1913 Act than in that of 1909" (see Stratton's Independence v Howbert, 231 US 399, 416, 417), "and ... we assume that there is no diference in its meaning as used in the two acts." (Southern Pacific Co. v John Z. Lowe, Jr., 247 US 330, 335).

 

Very truly yours,

(s) Robert J. Newland