Working "tax protester" cases is a bit like trying to explain evolution to a person believing in creation (or vice-versa) . . . just be aware that telling your Clients things they adamantly do not want to hear will do nothing to increase your popularity quotient. I suppose that dealing with fanatics is always a bit of a "bitch."

Invariably, you will find that your Clients are anxious to extol the virtues of their particular brand of tax code wizardry. Whichever of the various tax protest theories that your Client has bought into, if your Client has been preaching this gospel, you can expect them to assure you that their efforts to protest the tax system, and discuss ways to avoid it, are protected under the First Amendment as "free speech." Such is not the case.

In the seminal case, Gordon Buttorff, an Iowa tax protestor, promoted this sort of scheme and was ultimately convicted of nine counts of aiding and abetting people to file false, or fraudulent, income tax returns in violation of Title 26 U.S.C. §7205 and Title 18 U.S.C. §2. Buttorff appealed his conviction claiming that the discussion of his views on income taxes were protected under the First Amendment. See United States v. Buttorff, 572 F.2d 619, 622-23 (8th Cir. 1978).

In affirming his conviction, the Eighth Circuit wrote:

Although the speeches here do not incite the type of imminent lawless activity referred to in criminal syndicalism cases, the defendants did go beyond mere advocacy of tax reform. They explained how to avoid withholding and their speeches and explanations incited several individuals to activity that violated federal law and had the potential of substantially hindering the administration of the revenue. This speech is not entitled to first amendment protection and ... was sufficient action to constitute aiding and abetting the filing of false or fraudulent withholding forms.

In February, 1978, Alton Moss delivered a radio talk show presentation advocating the avoidance of federal withholding tax. Three men, Gronewold, Sanne, and Vanosdall, heard the interview and realized that they were dealing with a true guru willing to share the "Grail." Gronewold taped a second presentation in March that Moss gave at a local hotel and played it for Sanne, Vanosdall, Lilienthal, and Spencer. Moss was ultimately convicted of five counts of aiding and abetting the filing of false withholding information. Like Buttorff, Moss appealed on the grounds that his speeches were First Amendment protected but, citing Buttorff, the Eighth Circuit rejected this argument. See United States v. Moss, 604 F.2d 569, 570 (8th Cir. 1979).

Similarly, other circuits have upheld convictions of tax avoidance seminar presenters under the federal conspiracy and mail fraud statutes. See United States v. Fleschner, 98 F.3d 155, 157 (4th Cir. 1996), upholding Fleschner's conspiracy conviction for conducting tax avoidance seminars at which he advised participants that wages were not income and that they should hide income by dealing only in cash.

See also United States v. Rowlee, 899 F.2d 1275, 1276-77 (2d Cir. 1990), upholding Rowlee's conviction for fourteen counts of conspiracy and six counts of mail fraud for his role in teaching tax avoidance seminars and urging clients to file suits and Freedom of Information Act requests against the IRS to waste the agency's time.

There is one significant case in which the Court ruled that tax protests were protected by the First Amendment. In United States v. Freeman, 761 F.2d 549 (9th Cir. 1985), the Court held that a First Amendment defense was applicable because the defendant, ". . . directed his comments at the unfairness of the tax laws generally, without soliciting or counseling a violation of the law in an immediate sense." Now, remind your Client that this is an Appellate case - Freeman was indicted, arrested, prosecuted and convicted.

Ask your Client how much time they think Freeman spent in jail, and how much money he spent in litigation, to prove his point. In my experience, therein lies the key to the only approach I have thus far had any real success with.

Specifically, rather than engage the Client in pointless argument regarding the merits of their tax theories, I would recommend to you what I would call the "Martyrdom Approach." It goes like this.

"Yes Sir, I understand that you have a belief system that most people don't ascribe to, but let's pretend that it's the Sixteenth Century, you are the well known Italian astronomer Giordiano Bruno, and you've been chatting with a really persuasive guy named "Nick." Now Nick, better known to the world as Nicolaus Copernicus, has got you all wound up because he can prove to you that the Earth is not really the center of the Universe, and the Sun does not really revolve around the Earth, but vice versa. Now you propose to go out and advocate your new found truth . . . share your shiny new Grail with the world, as it were.

As your friend, I'd have to tell you that there's a real problem with that. The Bible clearly says that Joshua made the Sun stand still, and it most definitely does not say that Joshua made the Earth and Moon stop in their respective orbits, as your model would propose. There's folks likely to take umbrage with anyone who might suggest that the Bible is wrong.

Well, history tells us that Gio was a bit of a hard head. Even after spending seven years in prison, he would not recant. So, being almost as kind, compassionate and understanding as our modern day Internal Revenue Service, the "powers that be" of that time took him to the Campo de' Fiori, a central Roman market square, where his jaw was clamped in an iron gag and an iron spike was driven through his tongue. He was then stripped stark naked and burned at the stake in front of all assembled, on February 17, 1600.

He wasn't the only "starry eyed" astronomer of the time either. You know the name, "Galileo?" For a genius, he was a bit slow on the uptake. Ten years after Bruno's execution, Galileo published his thoughts on the subject in 1610, supporting the theories of Copernicus. For his temerity and trouble, he was also arrested, jailed, tried, convicted of "heresy," forced to recant and imprisoned for life. The man whose genius was beyond secular comprehension died blind and broke, but at least the genius was smart enough to "admit" the error of his ways, and avoid the Bruno treatment.

In other words, it looks to me like it doesn't make much difference whether you are a mastermind, or misguided; if you presume to bash the government's icons, Martyrdom can really, really suck.

Now, let's look at the cases where people have argued your arguments, and see how it worked out for them."

By the way, if you are wondering what happened to Copernicus, he had the good fortune to die before anyone got offended.

I welcome your comments, questions and suggestions.