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
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
States v. Buttorff, 572 F.2d 619, 622-23 (8th
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.
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.
questions and suggestions.