So guess what time it is – TAX TIME! For many of you it is a viewed as a time to “get a refund.” Of course, this completely ignores the fact that the government has been taking your money, interest free mind you, for the entire year. That money never even hit your wallet (or purse for you ladies) so it never really seemed like yours in the first place.
But, what is the justification for the government to take 20 or so percent of your paycheck? If you listen to the Internal Revenue Service (IRS) then they will tell you that they do.
The Law: The constitutionality of the Sixteenth Amendment has invariably been upheld when challenged. And numerous courts have both implicitly and explicitly recognized that the Sixteenth Amendment authorizes a non‑apportioned direct income tax on United States citizens and that the federal tax laws as applied are valid. In United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990), cert. denied, 500 U.S. 920 (1991), the court cited to Brushaber v. Union Pac. R.R., 240 U.S. 1, 12-19 (1916), and noted that the U.S. Supreme Court has recognized that the “sixteenth amendment authorizes a direct nonapportioned tax upon United States citizens throughout the nation.” (link)
So POOF there you have it – the courts have undoubtedly recognized that the Sixteenth Amendment allows a direct income tax on [all] United States citizens. If you are a United States citizen, then you are taxable.
United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990), cert. denied, 500 U.S. 950 (1991)
the court found defendant’s argument that the Sixteenth Amendment does not authorize a direct, non-apportioned tax on United States citizens similarly to be “devoid of any arguable basis in law.”
Broughton v. United States, 632 F.2d 706 (8th Cir. 1980), cert. denied, 450 U.S. 930 (1981)
the court rejected a refund suit, stating that the Sixteenth Amendment authorizes imposition of an income tax without apportionment among the states.
United States v. Hockensmith, 104 A.F.T.R.2d 2009-5133, 2009 WL 1883521 (M.D. Pa. Jun. 30, 2009)
the court rejected the taxpayer’s arguments that no law created an income tax and that the taxpayer was outside the government’s taxing authority. The court held that the Sixteenth Amendment allows for the taxation of income and eliminates the requirement for apportionment among the states.
IRS Publication 2105 entitled “Why Do I Have to Pay Taxes” also states,
Congress used the power granted by the Constitution and Sixteenth Amendment, and made laws requiring all individuals to pay tax.
So there you have it. There is nothing unconstitutional about the Sixteenth Amendment so you are taxable. The Sixteenth Amendment reads as follows.
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
The Sixteenth Amendment was ratified on February 3, 1913, so if it is what allowed the government to tax “incomes, from whatever source derived” then we should have an influx of people start filing starting around 1913 or 1914. Please review the chart below as I have compiled a list of the number of returns from 1913 to 2005 as well as a corresponding population. I have also added a category of the percentage of the American public filing as well as a percent increase of filings from the previous year.
|Year||Number of Returns||Population||% of Population Filing||% Increase|
We will notice that there are a few years where there was a big jump over the previous year. The biggest one is from 1916 to 1917 going from 437000 returns filed to 3,473,000 returns filed respectively. The second big jump is from 1939 to 1940 with 7,652,000 and 14,711,000 returns filed respectively. For the first example, 1916 to 1917 there was a whopping 3,036,000 extra returns filed for a total jump of nearly 695%. Why in the world would we have that big of a jump and later a 92% jump in 1939 to 1940? If the Sixteenth Amendment was what made us liable, then what happened in 1913, 1914, 1915, and 1916 where less than 0.43% of the American public filed? Was the government (IRS) so inept that it couldn’t wrangle in millions of righteous returns? Please… give me a break.
Take a minute and think about all your friends and family. Who files? If my life, everyone I know files (with the exception of children). I would venture to say that this is true for you as well. But look at the above table. Up until 1939 less than 6% of the public filed! For our purposes we will say that only 45% of the people file taxes today – the rest are underage or wholy exempt. By using this logic we still have a gap of 39% of the public not filing. That means that almost 4 of 10 people never filed up until 1939. And when I say they didn’t file, I mean they didn’t even fill out and sign a 1040 and of course didn’t pay taxes.
If you are more of a visual person let’s take a look at a graph. (Click on the graphic to see full view).
This graph was made from data from the IRS SOI report found here. The population data was found from Census.gov or other websites that derived their data from the Census Bureau. All data from the above table also was derived from these sites.
So seriously. Check that graph out. The part in orange is the number of returns filed and the yellow part is the population. Why is it that up until 1939 the number of returns generally did not change? But after about 1946 the amount of returns filed tracked with the population?
Look, it is pounded into our heads that we have to pay taxes. People always have and always have ever since the conception of government. This is true and I do not question this. Tax law has been around in America since it was founded – it is in the Constitution. However, America was founded on a unique idea that there were to be rules for how people were to be taxed. You know, the whole no tax without representation? No longer was it the will of the king or queen or dictator for what they wanted. No, for the first time the We the People were to have a say in how we were to be taxed.
Along the line something changed in America. I don’t know exactly what happened but I can speculate. I do know a few things though. The Sixteenth Amendment that was passed in 1913 did not make it so that I was taxable. If it was, then how do you explain the less than 6% of the population filing before 1939? Did it really take 26 years for them to finally enforce the Sixteenth Amendment? Certainly not the IRS I know.
The better answer is that in 1939 World War II started with the United States of America entering on December 8, 1941. Later in 1942 the American government signed into law what was called the Victory Tax of 1942. What it did was “There shall be levied, collected, and paid for each taxable year beginning after December 31, 1942, a victory tax of 5 per centum upon the victory tax net income of every individual (other than a nonresident alien subject to the tax imposed by section 211(a)).” So if you wern’t paying taxes before, then you were now. This was later repealed by the Income Tax Act of 1944. But alas, two years was enough for people to get used to the government mandating that they have money taken out of their paycheck to give to the “good of the government,” which at the time of the bill was to fight the Axis of Evil.
But this still doesn’t explain why we had massive increases in people filing from 1939 to 1942 – 7,652,000 to 36,619,000 filings respectively. I have a theory but I believe it was because of the Social Security Act of 1935. Prior to this America had gone through the Great Depression – 1929 to 1939. During these times people’s lives were ruined. Their savings depleted and many were looking for help. The government has always take care of it’s people with retirement plans, unemployment benefits, temporary assistance, and other programs to help its workers out. Essentially what the Social Security Act of 1935 did was open up these programs to the general public, even if they were not working for the government. In other words, people could purchase “insurance” through the government.
I would assume that the support grew quite rapidly in the following years for the program. After all, people had just got done starving on the streets and living in the gutter – they wanted help. Of course, good old Uncle Sam was there to lend them a helping hand! In 1940 the government did a major overhaul to the tax law. The major addition was the Subtitle C taxes, called employment taxes. The language of Subtitle C of the Internal Revenue Act of 1940 is almost, if not, word for word taken from the Social Security act of the 1935. What am I saying here? I am saying that if you wanted to participate in Social Security then you had to be treated in a different manner than you were before so you could be eligible. This is why there was an increase in taxes filed from 1935 to 1939. Look at the filings from 1925 to 1935. In general the amount of people filing is 4 million. There is very little deviating in these ten years. However when Social Security became an option (1935) about 1 million people voluntarily signed up every year until 1939 – then it was coded into law and then concreted into people’s minds that their “employer” took out money via the Victory Tax. It became commonplace. It became expected.
I am not really sure if I am making sense here. We will never know exactly how or what happened with the history of taxes. I do hope that by this table and chart that I have made you DO question what the government says about “why you must pay” though. They cite the Sixteenth Amendment as the precedent for being able to tax you but it can be clearly seen that it did not. Less than 6% of people filed taxes, much less paid taxes, before 1939.
Why? Why? WHY?!
Nothing has changed with laws. If you were not taxable back in 1920 then you are not taxable today. The Code has not changed in substance, only structure of how it was written. The courts, including the Supreme Court and Tax Court, have ruled that the Sixteenth did not expand the taxation power of the government.
Stanton v. Baltic Mining Co. , 240 U.S. 103 (1916)
… it was settled that the provisions of the 16th Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged, and being placed [240 U.S. 103, 113]in the category of direct taxation subject to apportionment by a consideration of the sources from which the income was derived,-that is, by testing the tax not by what it was, a tax on income, but by a mistaken theory deduced from the origin or source of the income taxed. (link)
Brushaber v. Union Pacific R. Co. 240 U.S. 1 (1916)
The various propositions are so intermingled as to cause it to be difficult to classify them. We are of opinion, however, that the confusion is not inherent, but rather arises from the conclusion that the Sixteenth Amendment provides for a hitherto unknown power of taxation — that is, a power to levy an income tax which, although direct, should not be subject to the regulation of apportionment applicable to all other direct taxes.
…they would result in bringing the provisions of the Amendment exempting a direct tax from apportionment into irreconcilable conflict with the general requirement that all direct taxes be apportioned. Moreover, the tax authorized by the Amendment, being direct, would not come under the rule of uniformity applicable under the Constitution to other than direct taxes, and thus it would come to pass that the result of the Amendment would be to authorize a particular direct tax not subject either to apportionment or to the rule of geographical uniformity, thus giving power to impose a different tax in one state or states than was levied in another state or states. This result, instead of simplifying the situation and making clear the limitations on the taxing power, which obviously the Amendment must have been intended to accomplish, would create radical and destructive changes in our constitutional system and multiply confusion.” (link)
Eisner v. Macomber 252 U.S. 189 (1920)
Afterwards, and evidently in recognition of the limitation upon the taxing power of Congress thus determined, the Sixteenth Amendment was adopted, in words lucidly expressing the object to be accomplished:
“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states and without regard to any census or enumeration.”
As repeatedly held, this did not extend the taxing power to new subjects, but merely removed the necessity which otherwise might exist for an apportionment among the states of taxes laid on income. Brushaber v. Union Pacific R. Co., 240 U. S. 1, 240 U. S. 17-19; Stanton v. Baltic Mining Co., 240 U. S. 103, 240 U. S. 112 et seq.; Peck & Co. v. Lowe, 247 U. S. 165, 247 U. S. 172-173. (link)
Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926)
The Sixteenth Amendment declares that Congress shall have power to levy and collect taxes on income, ‘from whatever source derived’ without apportionment among the several states, and without regard to any census or enumeration. It was not the purpose or effect of that amendment to bring any new subject within the taxing power. (link)
Penn Mutual Indemnity Co. v. Commissioner, 32 T.C. 653 at 659 (1959), aff’d, 277 F.2d 16, 60-1 U.S. Tax Cas
In dealing with the scope of the taxing power the question has sometimes been framed in terms of whether something can be taxed as income under the Sixteenth Amendment. This is an inaccurate formulation [ . . . ] and has led to much loose thinking on the subject. The source of the taxing power is not the Sixteenth Amendment; it is Article I, Section 8, of the Constitution. (link, sorry I had to use wiki as I could not find a free link to the TC case)
Emphasis mine. So what is it besides the fear of the IRS that makes you eligible for taxes? Is it really the 16th like the government tells us? I’d like to know your thoughts.