On behalf of JC and Shadow Raider, I post the following:
Though a link to this is on the recent House Ways & Means feature, it is at the bottom of that post with a single line reference.
JC says…
It is unrelated and deserving of its own post. I have provided some text below that may be included.
I have communicated with Shadow Raider via Facebook. He says it is o.k. to ask for his recent paper to be a feature on The Isaac Brock Society.
Constitutionality of Citizenship-Based Taxation
This is an important paper outlining how citizenship-based taxation is unconstitutional, especially in the case of U.S. Persons resident outside the U.S. The paper appears well researched and presented. However, the paper may be strengthened if it were subject to “peer review” with some probing of potential weaknesses and restatement (in different words) of some key points and strengths to assist others understand the concepts.
This was posted on Facebook, yet that posting only received “likes” and not comments. That leaves The Isaac Brock Society for review.
Shadow Raider reports:
I’ve also been sending my paper to many law professors. A few responded with an opinion, some positive and some negative, but always inconclusive and claiming that they were not experts on the subject. Those focused on taxation referred me to those focused n constitutional law, and vice versa. I’m starting to think that an “expert” on this subject simply doesn’t exist. I’m taking this inconclusive result as an indication that my argument is indeed a valid question for the courts.
Also, please include in comments ideas of how to get authoritative attention to this paper, and or authoritative affirmation/endorsement of the key points.
The paper has been cleverly linked from Google Docs as a “living document” allowing editing and revision by the author, accessible from the same link.
The paper has been “significantly updated” since it first appeared a few weeks ago.
@calgary411 Thanks.
Re:
Regarding it being unrelated to my Ways & Means post, it seemed relevant to me, but I may have got a bit over-enthusiastic including it, because I’d just read it — and it’s great. Definitely good to see a featured post on it. Thanks, Shadow Raider, for this – and your other – very useful papers!
I think the argument trying to apply due process to taxation should be played down. The reason is that the 16th Amendment came after the 5th Amendment and doesn’t require due process for the amount of tax. (In another setting I argue that overpayments and penalties are subject to the 5th amendment, but not the amount of tax. But my argument is made for different reasons and should not be added to the paper.)
Later the paper cites a few court rulings that apply due process to taxation. Fine, cite them but let the courts speak for themselves. We still don’t need the earlier argument, and our cause is not helped by trying to make that argument ourselves.
I might add a different constitutional argument:
In recent years courts have tended to rule that amendments such as the 4th, 5th, and 8th do not apply to actions taken by the US government outside of its own boundaries. Whether or not it is proper to consider the government’s actions legal, the boundaries of the US constitution must be the same for the 16th amendment as for the others.
I would strengthen a statement about Eritrea:
In 2011, the United States together with other United Nations members condemned the use of its “diaspora tax” in Security Council resolution 2023.
Regarding OVDP, I would add that even the IRS’s Taxpayer Advocate asked why the government is tormenting these people.
Regarding renunciation fees, I would add that they contravene the Expatriation Act of 1868.
Will this be published in a scholarly journal? I hope so.
I don’t know enough to contribute anything meaningful to the conversation, but I appreciate the effort you and others are making in challenging the constitutionality of CBT, Shadow Raider.
Shadow Raider – why haven’t you posted this on SSRN?
@calgary411, Thank you for posting my paper here.
@Norman Diamond, The 16th amendment doesn’t say that the income tax doesn’t require due process, it says that it doesn’t require apportionment among the states. The idea that taxation is restricted by due process is clearly confirmed by all court cases on the subject, and by Congress itself in its reports. Why do you think that making the argument ourselves doesn’t help the case? I think that it’s very important to explain the argument clearly.
The courts didn’t confine the constitution to US borders, they confined it to people under US jurisdiction. This category includes everyone physically in the US and also US nationals outside the US.
I like your suggestions about Eritrea, OVDP and the renunciation fee. I’ll try to add them to the paper when I have more time.
@Bubblebustin, Thanks.
@Karen, I thought that I needed credentials to publish a paper, but now I see that SSRN accepts papers from anyone. That’s a great idea. I just have to adjust the format a little bit.
“The idea that taxation is restricted by due process is clearly confirmed by all court cases on the subject, and by Congress itself in its reports.”
Restricted in some way by due process, such as not being racially discriminatory — oops, the Korematsu ruling shoots down that one — well, in some way, I see the point. But if the argument looks like “every imposition of tax requires a trial the same way as every imposition of a penalty” then it hurts our case. We should accept that lawful amounts of taxes are taxes not punishments. We should avoid looking like tax protestors.
“The courts didn’t confine the constitution to US borders, they confined it to people under US jurisdiction.”
For a while yes they did that. Then they even abandoned that. Let me know when Anwar al-Awlaki gets the 5th amendment.
Or closer to home, US Supreme Court rulings US v. Sullivan and Garner v. US (allowing 5th amendment to apply to particular questions though the amount of income must still be revealed) were honoured by these two institutions:
IRS (which asked carefully tailored questions which I could answer)
US Tax Court (some of my testimony remains under seal)
But not by these institutions:
US Department of Justice
US Court of Federal Claims
US Court of Appeals for the Federal Circuit
US District Court for the Central District of California
Um no wait, the IRS no longer honours the 5th amendment. As has been reported elsewhere on this site, even if a person has to violate laws of their own country in order to comply with FATCA, the IRS enforces an unconstitutional law compelling the person to do so.
Shadow Raider – once you have the paper up on SSRN, please publish the link here. I would suggest taking down your Google Drive version of the paper (or better yet, replacing it with a single page linking to the SSRN version). SSRN will collect view and download statistics, so you’ll want to channel all traffic through SSRN if possible.
@Norman Diamond, I agree that US courts haven’t been consistent in their application of limits of US jurisdiction, but if they rule that my argument is invalid because US citizens abroad are outside US jurisdiction, the US can’t impose CBT in the first place. The only way that the US can continue to impose CBT is if the courts maintain that US citizens abroad are indeed under US jurisdiction but that the discrimination that I describe somehow doesn’t violate due process.
@Karen, I submitted my paper to SSRN. It was easier than I thought, and I kept the same format. The link is here.
@Shadow Raider – excellent! By the time I got there it already had 5 abstract views and 2 downloads.
As I said about 2 days ago:
‘I might add a different constitutional argument:
In recent years courts have tended to rule that amendments such as the 4th, 5th, and 8th do not apply to actions taken by the US government outside of its own boundaries. Whether or not it is proper to consider the government’s actions legal, the boundaries of the US constitution must be the same for the 16th amendment as for the others.’
Thank you for agreeing.
That’s separate from the argument that taxation has to be subject to due process. Even when the 5th amendment is upheld, it doesn’t override the 16th. I worry that our argument is weakened by trying to say that the 5th overrides the 16th.
After your article is finalized, I hope it will also be published in a journal that professionals subscribe to. Some of them should be influenced. So few professionals understand our problem now, it would be nice to even just see that number double.
@Shadow Raider
Nice work getting your paper onto SSRN. I do wonder though how it must feel to share a publication platform with J. Richard (Dick) Harvey? 😉
Oh, J. Richard (Dick) Harvey is at Villanova University. I guess that helps explain why the Procedurally Taxing blog mostly bans me from commenting, though they allowed an exception recently.
Finally, I’ve had a chance to sit down and read this remarkable paper in full. Thank you, “Shadow Raider”, for your careful and amazingly succinct layout of the unconstitutionality of the CBT law that is devastating our community. I hope this is read and considered at the highest levels of the US government.
Your chronological listing of the US government’s attacks on us over the years is a pretty shocking read.
I particularly appreciated your comparison of a non-resident US citizen and a US national. I have long reflected upon the fact that the only difference between me and an American Samoan is my birthplace. Although I have maintained my “relationship” to the US and possessed a US passport until its expiry last year, I am no more a member of US society than is the Samoan. Yet, the circumstance of my birth on the soil of the “land of the free” makes me the very opposite of “free”. I am taxed for my birthplace while the Samoan enjoys complete freedom free of charge.
Thank you for revealing that subjecting US citizens to CBT is not only nonsensical and discriminatory; it is unconstitutional. Let’s hope that the new government will agree and put an end, once and for all, to CBT.
“I have long reflected upon the fact that the only difference between me and an American Samoan is my birthplace.”
It’s not that simple. If parent(s) are US citizen(s) residing in A.S. then the child is a US citizen not non-citizen national.
Also if non-citizen national(s) give birth in a different country, it gets weirder. If a non-citizen national goes to a US consulate and applies for a certificate of non-citizen nationality for theirself, they get a US passport containing an annotation that the holder is a non-citizen national because there is no other kind of certificate. But if a non-citizen national goes to a US consulate to report the birth of their child, this is a cruel thing to do but still possible, if they make a consular report of birth and prove their own US nationality (not citizenship) then the child gets a certificate of US citizenship (not nationality). 22 CFR 50.7(a), https://www.law.cornell.edu/cfr/text/22/50.7
Norman: Good GAWD! With legalities this convoluted it’s no wonder the U.S. Tax Code is 77,000 pages, and counting!
The tax code is deliberately made complex and undecipherable so that the people who write it can command huge bucks when they leave government and go into private accounting and tax law practices. They are guaranteeing their future wealth.