From the April 2002 Idaho Observer:

THE tax question for the Supreme Court:

Does the 16th Amendment provide Congress an exception to the Consitution's apportionment clause regarding its authority to levy a direct tax?

By The Idaho Observer

COEUR D'ALENE -- Truth-in-Taxation proponent Phil Hart of Coeur d'Alene, Idaho filed a Petition for Writ of Certiorari with the U.S. Supreme Court April 8, 2002. Hart, an engineer in his professional life, has dedicated the last six years to pursuing the truth about the income tax while exhausting his administrative remedies in pro per defense of an IRS tax collection case.

The amount of money and effort Hart has spent in search of the income tax truth is far more than the debt claimed by the IRS. Since the IRS initiated proceedings against Hart in 1998, for taxes allegedly due from 1994 thru 1996, Hart has navigated his way through tax court and the Ninth Circuit Court of Appeals.

Since 1996 Hart has made two trips to the Library of Congress and the Supreme Court's library in Washington, D.C., and has visited about a half dozen other libraries. He has researched every Congressional Record entry and relevant Congressional documents during the period of time where the income tax amendment to the Constitution was being debated and ratified. He has also accumulated in his files an impressive body of newspaper articles, law and economic journal articles, books, essays and letters that capture the intent of the income tax from the first congressional debate in 1909 through the time it was implemented in 1913.

The purpose of this area of research was to discover what the intent of the American People was when they lobbied Congress and their state legislatures for an income tax amendment to the Constitution. Hart believes an objective review of the record proves that wages are not income and that the 16th Amendment does not empower Congress to levy a new kind of tax not authorized by the Constitution. According to Hart, “The purpose of the 16th Amendment was to bring tax relief to wage earners.”

With each new brief that needed to be filed in each subsequent court came the research to prepare it. “The more I learned about the income tax, the more clear the truth became about Congress' authority to levy an income tax both then and now,” said Hart.

Much of the income tax debate has centered around the improper ratification of the 16th Amendment, whether or not wages are income and who is or is not liable for the tax. Hart believes the key question is, “Does the 16th Amendment provide Congress with an exception to the Constitution's apportionment clause regarding its authority to levy a direct tax?” Though this is arguably the most fundamental of income tax constitutionality questions, surprisingly, no one has framed the argument quite like this before.

Confusion in the courts

Since World War II, when patriotism swept the nation and Americans gladly paid the new “victory (income tax on wages) tax”, thousands of income tax cases have been heard at the lower levels of the federal court system. But back in 1916, when the first few income tax cases came up to the Supreme Court, in at least five of these cases the parties were arguing that this “income tax exception” did exist such that a direct tax could be levied without apportionment. Correctly and in harmony with the other clauses of the Constitution, the Supreme Court said no. Unfortunately, this position of the Court was somewhat obscured by the complex writing of the Court in its opinion. When Hart read the Supreme Court's entire file on these first few income tax cases, it became crystal clear as to the position of the Court on this question. Sadly, Hart is the first researcher in the Truth-in-Taxation movement to dig this deep into this area of research.

But as time has gone by, the lower courts have been inconsistent with their decisions to the point today where total confusion exists regarding the income tax. Some courts say the income tax is a direct tax, whereas other courts say it is an indirect tax. It gets even worse, there are court rulings saying that the income tax is both direct and indirect, that it is neither or that the issue is irrelevant.

Direct tax or indirect tax?

At the time the Constitution was written in 1787, there were only two authorities upon which the framers relied for the terms “direct tax” and “indirect tax.” These were Adam Smith, who wrote Wealth of Nations in 1776, and Frenchman Jaques Turgout author of Plan d'un memoire sur les impositions in 1764. Smith's Wealth of Nations states, “Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labour, and are attended with all the inconvenience of such taxes.”

The IRS has steadfastly maintained that an income tax on wages is a direct tax exempted from the Constitution's apportionment rule. But when Congress approved the 16th Amendment and sent it out to the states for ratification, four times the Senate rejected the opportunity to create this “apportionment rule exemption for income taxes.” According to Hart, “The executive branch of government cannot do something that was not authorized by the legislative branch.”

Will the writ be heard?

A Writ of Certiorari is, according to Black's Law Dictionary, 6th Edition, a “writ of review or inquiry.” The Supreme Court rules are very specific as to the form of the filing. It must be presented as a booklet and must not exceed 30 pages. There are rules that govern the booklet's organization and dimensions, type style and size, margins, binding and content. Hart took special care that his writ would not be disqualified due to form.

For the Supreme Court to choose this writ from the thousands it receives, the issue must be “ripe.” Due to the activities of We the People Foundation (see next page) and many other Truth-in-Taxation activists such as Irwin Schiff, Bill Benson, Joe Bannister and Larry Becraft, there is little doubt that the issue is “ripe.” “I believe there is a very good chance that the Supreme Court will hear this writ because of the disarray of the lower courts and the increasing political activism on the issue,” said Don Harkins, editor of The Idaho Observer.

According to Hart, “The questions presented are simple, logical, the historical evidence is solid and there is no wiggle room for the government.”

As to the reason the Supreme Court should hear the writ, the petition concludes, “The habit of government exceeding its authority in the collection of taxes is as old as history itself. All the milestones in the progress of liberty and self government for the Anglo-American people were proceeded by abusive taxation, civil unrest, sometimes civil war or revolution, culminating with memorialized documents whereby the Citizens compel the government to obey the law.

In the process of framing our Constitution, that instrument would likely never have been ratified without the direct taxation compromise between the large states and the small states.

The requirement of apportioning direct taxes among the several States is the only provision of the Constitution that appears twice in the document. It is this very provision that is today being abused by the Commissioner. This Court should grant Certiorari so that this question can finally be settled.”

Harkins helped Hart produce his 428-page book, Constitutional Income: Do You Have Any? and helped him prepare the writ for submission. Between Constitutional Income: Do You Have Any? and the recently filed writ, Hart has distilled six years of research, several court appearances and thousands of pages of source documents most pertinent to the income tax issue into its most fundamental components,” Harkins commented.

Hart is also a 2002 Constitution Party candidate for the Idaho Legislature.

Hart can be contacted at (208) 677-2600 or mail@constitutionalincome.com

Copies of the historic writ, its 100-page appendix, plus a signed copy of Constitutional Income: Do You Have Any? are available from Alpine Press for $55 while supplies last. To order visit: www.constitutionalincome.com

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