A State Supreme Court Justice has applied for Bill Conklin's award. His letter and Bill's answer follow:

            Hey, thanks for the copy of your book.  I read the whole thing the moment I got it.  I think I would be ready to claim the $50K if all I had to do was tell you how to file without waiving your 5^th Amendment Right.  The second prong, identifying the statute that requires payment of tax, I have not looked into.

            Your case, in which Nottingham held that information on a return is not compelled testimony, was poorly reasoned, if I understand it correctly.  I don't have a copy, so it is hard to be too critical.  Yet, obviously, the information is "testimony" as Garner clearly holds.  Is it compelled?  In my view, the answer is that it is not compelled if the information might tend to show that you committed a crime-that is if it incriminating.  If the information is not incriminating, then you must furnish it. (The problem here is that the Fifth  Amendment does not mention the word "incriminating."  A layman cannot be required to give information to the government that can be used in a criminal case and at the same time understand the full implications of whether or not a piece of information could be incriminating.  A layman would have to understand the law at a level of attorney standards in order to understand if information could incriminate and the IRS cannot hold individuals to the standards of an attorney. Also Garner says that information on a tax return is compelled testimony, Garner does not say that information on a tax return is compelled only if it is not incriminating.)

            I start by observing that the 5^th Amendment does not prohibit compulsory disclosure of information that might tend to show you committed a criminal offense.  It's focus is the use of such information in a criminal case against you. For example, if the government gives you immunity from prosecution, it can force you to disclose information that shows you committed a crime.  It follows that the 5^th Amendment does not come into play respecting a tax return until the information is offered into evidence against the taxpayer in a criminal prosecution.  At that point, a 5^th Amendment objection to the evidence should be sustained.  The dissenting opinion in the Garner Circuit Court decision has it about right-look at 501 F.2d 240.  The Supreme Court Decision missed it. (Please read Argomaniz and Sharp which are discussed  in the Summons Chapter of my book.  The Fifth Amendment does apply in civil proceedings before information is offered into evidence in a criminal prosecution, so your entire theory here is incorrect.)

            The Supreme Court Garner Decision involved a case wherein tax return information was offered into evidence against the taxpayer in a NONTAX criminal prosecution.  The guy was prosecuted for gambling related violations, and his return listed his occupation as "professional gambler" and disclosed amounts of income from gambling.  The Supreme Court held that the 5^th Amendment did not prevent use of the tax return information in the criminal trial because, by disclosing the information in the return, the defendant waived the 5^th Amendment privilege.  But, said the defendant, I was compelled to disclose the information in the return under pain of being prosecuted for failure to file under Section 7203.  Not so, said the Court.  Although the 5^th Amendment is not a defense to prosecution for failing to file a return AT ALL, the privilege can be claimed against certain specific information sought on the return.  Had the defendant claimed the 5^th on the questions that called for incriminating information, the IRS would have had to prove "willful" failure to file.  Under that standard, said the Court, a valid clam of 5^th Amendment privilege CANNOT be the basis for a Section 7203 conviction.  Moreover, even if the claim of privilege is ultimately ruled erroneous-presumably due to a court ruling that the information is not incriminating-if the claim was made in good faith, there can be no 7203 conviction. ("Because 7203 proscribes ‘willful' failures to make returns, a taxpayer is not at peril for every erroneous claim of privilege.  The Government recognizes that a defendant could not properly be convicted for an erroneous claim of privilege asserted in good faith." 424 U.S. 663 at. 18).

            Thus, the answer to the $50K question.  You can file a return without waiving any 5^th Amendment rights by asserting the Fifth Amendment privilege on the tax return wherever disclosure of the required information would disclose information that is incriminating.(Since the Garner case was decided, the case of United States v. Doe, 104 S. Ct. 1237 (1984)  was decided by the United States Supreme Court.  In Doe, the Supreme Court took the position that books and records are not protected by the Fifth Amendment and if an individual admits to having books and records, he waives his Fifth Amendment Rights and he must produce the books and records.  Since an individual cannot put an income amount down on a tax return without having books and records to substantiate the amount, then no individual can fill out a tax return since Doe and admit to any amount of income without admitting to the existence of records to substantiate his income.  However, if an individual takes the Fifth Amendment on the tax return, the IRS has, in the past, prosecuted for willful failure to file returns in spite of the Garner holding.  Also, the IRS can assess a civil penalty for the filing of a frivolous return, and the Appellate Courts will ignore Garner.  As a matter of fact, it is obvious that both Judge Nottingham and the Circuit Court of Appeals ignored Garner in my case: Conklin v. United States, which is the subject of my book:  Why No One is Required to File Tax Returns.  Individuals obviously cannot refuse to file returns, they must offer to file and request an extension of time to file until the IRS can show them how to file without waiving their Fifth Amendment Rights. Also, since an individual who is not a lawyer cannot know if a question is incriminating, he can take the Fifth Amendment on all questions.  The only time he could be in violation of the law is if he were ordered by a Federal District Judge to answer a question and he refused to answer. And of course, if an individual is ordered to answer questions and the Fifth Amendment does apply, then the government cannot use the answers against the individual in any criminal case because the Judge forced the individual to waive his Fifth Amendment Rights.)

            The fine print:  The Garner Court, in footnote three, made a possibly ominous statement.  It pointed out that it was presented with a situation in which the return information was offered in a prosecution "other than under the tax laws."  This is an ambiguous statement, implying that they could be either more or less liberal with the scope of the 5^th Amendment in a tax prosecution.  Also, the Court noted the distinction between tax returns directed at a specific group of people and seeking specific information-gambling revenue return or firearms tax.  Under some circumstances, the 5^th Amendment would justify a failure to file any of these returns at all.  In contrast, the court said, income tax returns are facially neutral, applying equally to a broad group of people, so the complete failure to file is not justified by the 5^th Amendment.  For this, the Court relies on the old U.S. v. Sullivan 274 U.S. 259 (1927) case.  The Garner Court relies on the Sullivan dicta for its holding that one can, under claim of 5^th Amendment, fail to answer certain questions on the return if they would elicit incriminating information.  However, Sullivan is also the source of the rule that one cannot use the 5^th Amendment to fail to file any return at all-there are too many innocuous questions on the return (or at least in 1927 it was that way!!) (Who decides if a question is innocuous or incriminating?  It would be impossible for an individual to know, considering the complexity of the tax laws, and the other federal laws relating to information on a tax return, if a piece of information is incriminating. Since only a federal judge can order an individual to give information to the government, it is obvious that absent an order from a federal judge, there can be no requirement to give the government information on a tax return).

"Our tax system is based on individual self-assessment and voluntary compliance."

-Mortimer Caplin, Internal Revenue Audit Manual (1975).

The Denver Post announced recently that the IRS had indicted a Denver lawyer for tax evasion.  The poor guy apparently forgot to put a capital-gain for the sale of a house on his tax return.  The IRS is prosecuting him because it likes to go for high-profile cases to send its message.  Although Colorado has a population of 4 million, the United States Attorney only prosecutes about 12 individuals a year.  Kevin O-Brien, who is a former IRS agent and who now teaches at Denver University, said: "it is always great if you can get a high-profile person for tax evasion, it helps the IRS let people know that people are prosecuted for evasion."

Yes, the IRS does do the best to get the most bang for the buck.  You might note that the IRS is using the information on the guy's return to prosecute him.  You might also note that millions of individuals file returns each year and they swear under the penalty of perjury that the information on the return is true and correct.  This is in spite of the fact that most people don't understand what they are signing.  That is true.  Millions of people go to accountants and they sign returns that they don't understand.  When they sign the returns, they waive their Fifth Amendment rights.  The information can be used against them in criminal cases.  If they leave something off the return, even by mistake, the IRS can use the information on the return to prosecute them.

We live in a "free country" or so they tell us, but the government bullies millions of people into providing information each year that can be turned against them and used in criminal cases to convict them of felonies and give them paid vacations in a Federal prison camp.  The government claims over and over that the filing of these returns is "voluntary."  And then it prosecutes a few unlucky victims each year to give the illusion that filing returns is required.  Information on the tax returns that the individuals gave "voluntarily", whether they understand it or not, is used in the prosecution.   It is an outrageous situation, but it will not change until the "American people wake up and do something about it.

The IRS has filed suit against the Jackson Hewitt Tax Preparation Franchise for preparing fraudulent returns for people. Yes that is right, you could have Jackson Hewitt prepare your returns, you could sign them and send them in and you could be criminally prosecuted and do time in a federal prison.  Are you aware that this could happen?  And it does happen to a few select individuals each year because the IRS needs a few victims to get publicity to scare the rest of the population into "voluntary compliance."

And just where does all this collected income tax go?  Current military spending accounts for 27 cents of every income tax dollar.  Nine cents of every federal income tax dollar paid today can be attributed to borrowing to pay for past wars, and disability payments, health care, and other benefits to veterans makes up three cents per dollar. Total military spending is 40 cents of every tax dollar.  That is right; the government is raping you and taking about half the wealth it extracts from you to pay for wars that steal the resources from weaker nations.  In the meantime thousands of innocent civilians are dying in our bombing campaigns, so that our government can maintain control over the last of the oil to keep our engines running another 30 years.  Does it ever bother you when you think that your hard earned dollars are currently being used to kill civilians in a sociopathic war? 

Gwen A. Krauss a Washington IRS employee wrote the following letter to United States Senator Dianne Feinstein on April 30, 1996.  The letter is a masterpiece of doublespeak.  The text of the letter follows with my analysis in parenthesis.

Dear Senator Feinstein:

            This is in response to your letter, dated March 18, 1996 concerning the relationship between the Fifth Amendment privilege against self-incrimination and information a taxpayer discloses on an income tax return.

            Although our tax system is based on voluntary self-assessment, paying taxes is not optional.  There are specific provisions of the law which require the filing of a tax return, the payment of income tax, and penalties for non-compliance.  (Note that the IRS states that the system is based on voluntary self assessment.  It is true that the IRS may assess and collect against individuals by seizure and levy, therefore, the payment of taxes is not voluntary if the IRS makes an assessment.)

            The Internal Revenue Code requires these actions in numerous sections such as:

            *Section 6702 entitled "Time for Filing Income Tax Returns";

            *Section 6091, entitled "Place for Filing Returns or Other Documents;"

            *Section 6151, entitled "Payment and Notice on Demand;"

            *Section 6651, entitled "Failure to File Tax Return or to Pay Tax;" and

            *Section 6663, entitled "Imposition of Fraud Penalty."

            (It is interesting to note that the IRS has not quoted a section that requires the filing of a return in the above sections.  Is that an oversight, or would it contradict the IRS' contention in the previous paragraph that we have a "voluntary self-assessment" system?)

            Internal Revenue Code Section 7852(3), entitled "Other Applicable Rules," and the Privacy Act Notice of 1974, which enacted Section 552 of Title 5, "Government Organization and Employees," in no way contemplate criminal action.  The Miranda Warning, on the other hand, is a specific warning to an individual that he/she may be charged with committing a crime and any information provided after the issuance of the warning may be used against that person. (The IRS alleges that the Internal Revenue Code and the Privacy Act Notice do not "contemplate" criminal action.  I am not sure what the IRS means by that, but the fact remains that the Privacy Act Notice warns individuals that information on tax returns can be given to the Department of Justice.  DOJ would ask for information on tax returns if they were "contemplating" criminal action.  The fact as to whether the Privacy Act Notice and the Internal Revenue Code "contemplate" criminal action is completely irrelevant to the issue. You might note that the Internal Revenue Code does have criminal provisions.)

            The Fifth Amendment privilege against self-incrimination protects a person from being incriminated by his own compelled testimonial communications.  Fisher v. United States, 425 U.S. 391, 409 (1976).  However, the Fifth Amendment does not apply unless the government is seeking testimony that will subject the provider of the testimony to criminal liability.  Garner v. United States, 424 U.S. 48 (1976).  (The Garner case also ruled that a tax return is a compelled testimonial communication.  The government can use the information on tax returns in criminal cases.  By requiring individuals to give information on 1040 returns, the government, should it decide at any point in time to use the information criminally, will subject the provider of the testimony to criminal liability.  Note that the IRS will not offer to provide any individual with a promise that the information on the return will NOT be used criminally.  Furthermore, the courts have ruled that the 5th Amendment applies in civil cases if the information could be used criminally.  That is why the IRS cannot enforce a summons in the face of the Fifth Amendment.)

            The requirement to file an income tax return is primarily designed to facilitate revenue collection, not criminal prosecutions.  Therefore a taxpayer may not rely on the Fifth Amendment privilege to refuse to disclose any information on an income tax return or to refuse to file a return.  United States v. Sullivan, 274 U.S. 259 (1927).  While a valid claim of the privilege can be asserted as to specific items of information requested on a tax return, it does not give a taxpayer the right to withhold information if disclosure of such information would not incriminate or tend to incriminate him.  United States v. Schiff, 612 F.2d 73, 77 (2d Cir. 1979); See also, Garner v. United States, 424 U.S. at 656.  For example, a taxpayer's refusal to supply information request on a tax return which is motivated by a desire to protest taxes rather than a fear of incrimination will not be protected under the Fifth Amendment privilege.  United States v. Neff, 615 F.2d 1235, 1240 (9th Cir. 1980).  (The IRS however, may turn a revenue collection case into a criminal case at any point in time and they may use all the information criminally that they have collected up to that point in the civil case.  Notice that the IRS admits that a valid claim of privilege can be asserted as to specific items of information.  The problem here is that individuals cannot be held to the standards of an attorney so they cannot be presumed to know whether or not a piece of information will incriminate them or not.  Therefore, the government cannot require the disclosure of information on a 1040 return unless it can promise the individual that it will not be used criminally.  It is true that you cannot refuse to disclose information because you are protesting taxes.  You should also not refuse to disclose information to the IRS on the return for purposes of the Fifth Amendment.  The proper method is to request that the IRS promise you that no information will be given to the Department of Justice or any state agencies for use in a criminal case and to ask for an extension of time to file the return until the IRS can assure you that you are not waiving your Fifth Amendment Rights when you file the return.  This is not legal advice, so I suggest that you consult with an attorney before taking any actions on my thoughts).

     More importantly, a taxpayer is not entitled under the Fifth Amendment to file tax returns which fail to supply information from which tax liability can be calculated or contain no information other than a general objection based on the Fifth Amendment.  Such a return does not constitute a tax return as required under the internal revenue laws and therefore can give rise to a charge of failing to file a return, to which the Fifth Amendment will not be a defense.  See, Ueckert v. Commissioner, 721 F.2d 248 (8th Cir. 1983); United States v. Irwin, 651 F.2d 198 (10th Cir. 1977) cert. denied 434 U.S. 1012 (1978); United States v. Silkman, 543 F.2d 1218 (8th Cir. 1976 (per curiam), cert. denied 431 U.S. 919 (1977), United States v. Neff, 615 F.2d 1235 (9th Cir. 1980).  (The actual fact is that the IRS  will give you a $500 penalty if you file a return and claim the Fifth Amendment on the return.  That is why it is better to file a request for an extension of time to file and request that the IRS assure you that they will not use any information criminally.  The IRS claims that you must supply information to calculate a tax liability.  The problem is that the IRS is ignoring the case of United States v. Doe, United States Supreme Court, 1984.  The Doe case took the position that if you admit to having records, you waive your Fifth Amendment Rights.  According to Doe, the Fifth Amendment does not apply to records, it only applies to testimony.  Therefore if you admit to an amount of income and sign the return under the penalty of perjury, you have admitted that you have records.  Under the current law, the mere admission that you had income implies that you have records to substantiate that income.  It is manifestly obvious therefore, that you waive your Fifth Amendment Rights by admitting to an amount of income.)

            The Fifth Amendment does not permit a taxpayer to assert a "blanket" objection to all items on a tax return or even an objection to specific items.  To validly claim the privilege with respect to a  specific item of information on a tax return, the claim must be based upon a real possibility that submitting answers will subject the taxpayer to criminal prosecution. United States v. Irwin, 561 F.2d at 201.  the danger of self-incrimination from disclosure of such item must be real and appreciable, not remote and speculative  See, Marchetti v. United States, 390 U.S. 39, 48 (1968); Rogers v. United States, 340 U.S. 367, 374 (1951).  However, the taxpayer is not the final judge as to whether specific information would tend to incriminate him.  If the claim is challenged, it is for the courts to decide whether a taxpayer's refusal to answer specific questions on a tax return is justified.  United States . Neff, 615 F.2d at 1240;  See also, Hoffman v. United States, 341 U.S. 479, 486 (1951).  (Note here that the IRS admits that the taxpayer may assert the Fifth Amendment if there is a real possibility that submitting the answers will subject the taxpayer to criminal prosecution but says the IRS, the taxpayer is not the final judge of the issue, it must be decided by the courts.  It seems that the only way to know if the Fifth Amendment can be used is for it to be asserted by the taxpayer and later ruled on by the courts.  Since the IRS immediately classifies all individuals who worry about waiving their Fifth Amendment Rights as Illegal Tax Protesters, and since the Illegal Tax Protester designation is a project of the Criminal Investigation Division, it is no problem for a taxpayer to meet the requirements in Marchetti, supra. Furthermore, how is the individual to know if a piece of information may be incriminating if only the courts are allowed to make that decision?)

            Accordingly, the Fifth Amendment cannot be raised in a blanket fashion on a tax return.  If the taxpayer discloses information on the tax return instead of claiming the privilege on the tax return, his disclosures will not be considered "compelled incrimination" within the meaning of the Fifth Amendment. Garner v. United States, 424 U.S. at 665.  Because no blanket Fifth Amendment claim arises, there is generally no "waiver" issue present when a taxpayer files a return. (This paragraph is complete "poppycock."  The IRS is saying that if a taxpayer discloses information on a tax return, then the disclosure of that information is not required which is consistent with the allegation in the beginning of the letter that we have a voluntary tax system. The IRS then says that if no Fifth Amendment claim arises, there is no waiver of rights when a taxpayer files a return.  Does that mean that if the taxpayer doesn't raise the Fifth Amendment issue, he doesn't waive his Fifth Amendment Rights?  Can you waive your Fifth Amendment Rights without knowing that you are waiving them? )

            This response does not provide guidance on whether or not the Fifth Amendment privilege may be claimed by you with respect to any specific item requested on your tax return.  If you wish to claim the privilege with respect to a specific item on your tax return, we suggest that you contact an attorney who may better advise you on your particular situation. (This final part of the argument essentially admits that there is, in fact, a Fifth Amendment problem with the income tax).

            I trust you will find this information helpful in responding to your concerns.  If we can be of further assistance pleas do not hesitate to contact us.  Sincerely,  Gwen A. Krauss, Department of the Treasury, IRS, Washington, D. C. 20224. 

     The History of the current Freedom Movement began many years ago, years before many of the current front-liners were born.  We can trace the history of this movement back to the middle 1940s when a pioneer constitutionalist, Austin Fleet, started filing blank returns and sending bills to the government for money he claimed was due him because of the vast amounts of tax legally avoided by the tax exempt organizations in the country.  He argued that public officials were using taxpayer dollars to subvert the Constitution.  Finally on April 5, 1966, the IRS filed criminal information against him.  Fleet's arguments challenged the administration of the IRS; he did not challenge the constitutionality of the Federal Income Tax.  He did not have a bank account and he didn't own any property.  His only income came from cash. The IRS continued to harass him and attempt to get his assets and on July 20, 1965, they broke into his safe deposit box.  They found nothing.  Fleet argued and was quoted in the New York Daily News of April 15, 1967, that, "...there is nothing in the Constitution or the U.S. Criminal Code that states that taxpayers shall, under threat of prison sentences, be forced via...audits, liens, levies, seizure notices, summons for production of records...to pay the Federal income taxes of approximately 1,200,000 tax-exempt organizations...that, as political ‘sacred cows unlawfully escape the payment of billions of dollars in Federal Income taxes."

            In August of 1969, the government got a court order from Judge William Campbell of the U.S. District Court in Northern Illinois ordering him to report to a government hospital for a mental examination. He never did show up to the hospital but instead he filed suit against the judge and got a lot of publicity.  His case was dismissed for lack of jurisdiction.  The government never took him to trial for his alleged criminal violations of the Internal Revenue Code, but instead tried to put him in an institution for the criminally insane. In June of 1971, he was giving a speech about his activity and during a standing ovation, he died from a massive heart attack.  He was the founder of our modern Freedom Movement.  He was easily 50 years ahead of his time. Now, the IRS has thousands and thousands of individuals they must take on each year.  As you can see, things are progressing.-(Read more on the history of the Freedom Movement next month.)