assert that the collection of federal income taxes constitutes
a “taking” of property without due process of
law, in violation of the Fifth Amendment. Thus, any attempt
by the Internal Revenue Service to collect federal income
taxes owed by a taxpayer is unconstitutional.
Fifth Amendment to the United States Constitution provides
that a person shall not be “deprived of life, liberty,
or property, without due process of law . . . .”
U.S. Supreme Court stated in Brushaber v. Union Pacific R.R.,
240 U.S. 1, 24 (1916), that “it is . . .
well settled that [the Fifth Amendment] is not a limitation
upon the taxing power conferred upon Congress by the Constitution;
in other words, that the Constitution does not conflict with
itself by conferring upon the one hand a taxing power, and
taking the same power away on the other by limitations of
the due process clause.”
the Supreme Court has upheld the constitutionality of the
summary administrative procedures contained in the Internal
Revenue Code against due process challenges, on the basis
that a post-collection remedy (e.g., a tax refund suit) exists
and is sufficient to satisfy the requirements of constitutional
due process. Phillips v. Commissioner, 283 U.S. 589, 595-97
The Internal Revenue Code provides methods to ensure due process
to taxpayers: (1) the “refund method,” set forth
in section 7422(e) and 28 U.S.C. §§ 1341 and 1346(a),
where a taxpayer must pay the full amount of the tax and then
sue in a federal district court or in the United States Court
of Federal Claims for a refund; and (2) the “deficiency
method,” set forth in section 6213(a), where a taxpayer
may, without paying the contested tax, petition the United
States Tax Court to redetermine a tax deficiency asserted
by the IRS. Courts have found that both methods provide constitutional
In recent years, Congress passed new laws providing further
protection for taxpayers’ due process rights in collection
matters. In the Internal Revenue Service Restructuring and
Reform Act of 1998, Pub. L. 105-206, § 3401, 112 Stat.
685, 746, Congress enacted new sections 6320 (pertaining to
liens) and 6330 (pertaining to levies) establishing collection
due process rights for taxpayers, effective for collection
actions after January 19, 1999.
Generally, the IRS must provide taxpayers notice and an opportunity
for an administrative appeals hearing upon the filing of a
notice of federal tax lien (section 6320) and prior to levy
(section 6330). Taxpayers also have the right to seek judicial
review of the IRS’s determination in these due process
proceedings. I.R.C. § 6330(d).
reviews can extend to the merits of the underlying tax liability,
if the taxpayer has not previously received the opportunity
for review of the merits, e.g., did not receive a notice of
deficiency. I.R.C. § 6330(c)(2)(B). However, the Tax
Court has indicated that it will impose sanctions pursuant
to section 6673 against taxpayers who
seek judicial relief based upon frivolous or groundless positions.
Flora v. United States, 362 U.S. 145, 175 (1960) – the
court held that a taxpayer must pay the full tax assessment
before being able to file a refund suit in district court,
noting that a person has the right to appeal an assessment
to the Tax Court “without paying a cent.”
v. United States, 919 F.2d 830 (2d Cir. 1990) – the
court rejected a due process claim where the taxpayer chose
not to avail himself of the opportunity to appeal a deficiency
notice to the Tax Court.
Goza v. Commissioner, 114 T.C. 176 (2000) – the court
rejected the taxpayer’s attempt to use the judicial
review process as a forum to contest the underlying tax liability,
since the taxpayer had an opportunity to dispute that liability
after receiving the statutory notice of deficiency.
Pierson v. Commissioner, 115 T.C. 576, 581 (2000) –
the court considered imposing sanctions against the taxpayer,
but decided against doing so, stating, “we
regard this case as fair warning to those taxpayers who, in
the future, institute or maintain a lien or levy action primarily
for delay or whose position in such a proceeding is frivolous
Davis v. Commissioner, T.C. Memo. 2001-87, 81 T.C.M. (CCH)
1503 (2001) – the court imposed a $4,000 penalty for
frivolous and groundless arguments, after warning that the
taxpayer could be penalized for presenting them.
Alternative Contention: Taxpayers do not have to file returns
or provide financial information because of the protection
against self-incrimination found in the Fifth Amendment. Some
argue that taxpayers may refuse to file federal income tax
returns, or may submit tax returns on which they refuse to
provide any financial information, because they believe that
their Fifth Amendment privilege against self-incrimination
will be violated.
The Law: There is no constitutional right to refuse to file
an income tax return on the ground that it violates the Fifth
Amendment privilege against self-incrimination.
In United States v. Sullivan, 274 U.S. 259, 264 (1927), the
U.S. Supreme Court stated that the taxpayer “could
not draw a conjurer’s circle around the whole matter
by his own declaration that to write any word upon the government
blank would bring him into danger of the law.”
The failure to comply with the filing and reporting requirements
of the federal tax laws will not be excused based upon blanket
assertions of the constitutional privilege against compelled
self-incrimination under the Fifth Amendment.
Relevant Case Law:
United States v. Schiff, 612 F.2d 73, 83 (2d Cir. 1979) –
the court said that “the Fifth Amendment privilege does
not immunize all witnesses from testifying. Only those who
assert as to each particular question that the answer to that
question would tend to incriminate them are protected . .
. . [T]he questions in the income tax return are neutral on
their face . . . [h]ence privilege may not be claimed against
all disclosure on an income tax return.”
United States v. Brown, 600 F.2d 248, 252 (10th Cir. 1979)
– noting that the Supreme Court had established “that
the self-incrimination privilege can be employed to protect
the taxpayer from revealing the information as to an illegal
source of income, but does not protect him from disclosing
the amount of his income,” the court said
Brown made “an illegal effort to stretch
the Fifth Amendment to include a taxpayer who wishes to avoid
filing a return.”
United States v. Neff, 615 F.2d 1235, 1241 (9th Cir.), cert.
denied, 447 U.S. 925 (1980) – the court affirmed a failure
to file conviction, noting that the taxpayer “did not
show that his response to the tax form questions would have
been self-incriminating. He cannot, therefore, prevail on
his Fifth Amendment claim.”
United States v. Daly, 481 F.2d 28, 30 (8th Cir.), cert. denied,
414 U.S. 1064 (1973) – the court affirmed a failure
to file conviction, rejecting the taxpayer’s Fifth Amendment
claim because of his “error in . . . his blanket refusal
to answer any questions on the returns relating to his income
Sochia v. Commissioner, 23 F.3d 941 (5th Cir. 1994), cert.
denied, 513 U.S. 1153 (1995) – the court affirmed tax
assessments and penalties for failure to file returns, failure
to pay taxes, and filing a frivolous return. The court also
imposed sanctions for pursuing a frivolous case. The taxpayers
had failed to provide any information on their tax return
about income and expenses, instead claiming a Fifth Amendment
privilege on each line calling for financial information.
Alternative Contention: Compelled compliance with the federal
income tax laws is a form of servitude in violation of the
Thirteenth Amendment. This argument asserts that the compelled
compliance with federal tax laws is a form of servitude in
violation of the Thirteenth Amendment.
The Thirteenth Amendment to the United States Constitution
prohibits slavery within the United States, as well as the
imposition of involuntary servitude, except as punishment
for a crime of which a person shall have been duly convicted.
In Porth v. Brodrick, 214 F.2d 925, 926 (10th Cir. 1954),
the Court of Appeals stated that “if the requirements
of the tax laws were to be classed as servitude, they would
not be the kind ofinvoluntary servitude referred to in the
Thirteenth Amendment.” Courts have consistently found
arguments that taxation constitutes a form of involuntary
servitude to be frivolous.
Relevant Case Law:
Porth v. Brodrick, 214 F.2d 925, 926 (10th Cir. 1954) –
the court described the taxpayer’s Thirteenth and Sixteenth
Amendment claims as “clearly unsubstantial
and without merit,” as well as “far-fetched
United States v. Drefke, 707 F.2d 978, 983 (8th Cir. 1983)
– the court affirmed Drefke’s failure to file
conviction, rejecting his claim that the Thirteenth Amendment
prohibited his imprisonment because that amendment “is
inapplicable where involuntary servitude is imposed as punishment
for a crime.”
Ginter v. Southern, 611 F.2d 1226 (8th Cir. 1979) –
the court rejected the taxpayer’s claim that the Internal
Revenue Code results in involuntary servitude in violation
of the Thirteenth Amendment.
Kasey v. Commissioner, 457 F.2d 369 (9th Cir. 1972) –
the court rejected as without merit the argument that the
requirements to keep records and to prepare and file tax returns
violated the Kaseys’ Fifth Amendment privilege against
self-incrimination and amount to involuntary servitude prohibited
by the Thirteenth Amendment.
Wilbert v. Internal Revenue Service (In re Wilbert), 262 B.R.
571, 578, 88 A.F.T.R.2d 6650 (Bankr. N.D. Ga. 2001) –
the court rejected the taxpayer’s argument that taxation
is a form of involuntary servitude prohibited by the Thirteenth
Amendment, stating that “[i]t is well-settled
American jurisprudence that constitutional challenges to the
IRS’ authority to collect individual income taxes have
no legal merit and are ‘patently frivolous.’”
I have time to link all the foregoing cases and post them
to this site for your review, you will note that these cases
tend to have a common thread. The appeals are filed pro se;
no self respecting lawyer would walk into a federal court
and make these ridiculous arguments.
welcome your comments,
questions and suggestions.