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19010Al Adask Blog on "this state"

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  • Legalbear
    Nov 2, 2012

      Just noticing there are several posts/categories on the topic here: http://adask.wordpress.com/

      I want to get back there and read them. I find Al to be pretty credible. I was just noticing that Colorado’s Income Tax law makes lots of references to “this state”.


      Here’s an excerpt from a brief that may shed some additional light on the phrase:


      In Idaho State Tax Commission v. Payton, 688 P. 2d 1163, 1164 (Idaho 1984) (Payton hereafter) appellant contented that the imposition of an income tax is prohibited by the Idaho and United States Constitutions.  The Court held that the appellant’s position was without merit and cited to Shaffer v. Carter, 252 U.S. 37 (1920)(Shaffer hereafter) wherein the United States Supreme Court ruled:

      “The rights of the several states to exercise the widest liberty with respect to the imposition of internal taxes always has been recognized in the decisions of this court... .


      “That a State may tax callings and occupations as well as persons and property has long been recognized...


      This part of the ruling relied upon by the Court is alright as far as it goes. The Shaffer Court continued:


      "Unless restrained by provisions of the federal Constitution, the power of the state as to the mode, form, and extent of taxation is unlimited, where the subjects to which it applies are within her jurisdiction." (Citations omitted). (Emphasis mine).


      The purpose of this memorandum has been to point out, and place emphasis on this phrase from this opinion, “Unless restrained by provisions of the federal Constitution”. It looks to me like Idaho courts have completely overlooked restraints imposed by the federal Constitution as are described above. Restraints of the federal Constitution may not matter, or be asserted, by the “millions of taxpayers” Judge Durtschi makes reference too in Mitchell, but, they matter to me and I am asserting them as evidenced by this writing. The Shaffer Court continued:

      “And we deem it clear, upon principle as well as authority, that ... a state may impose general income taxes upon its own citizens and residents whose persons are subject to its control...” . 252 U.S. at 51-52, 40 S.Ct. at 225.


      Payton concludes the thought by saying, “Hence, a state imposed income tax does not violate the Federal Constitution.” I am not going to let this Court turn all of my above arguments and authority into a strawman argument that I contend the income tax violates the Federal Constitution. I do contend that issuing a mandate compelling me to file a tax return under authority of I.C. 63-3030A would violate my rights. It is amazing to me trained legal minds sitting in Idaho Supreme Court could quote from the Schaffer decision that includes the statement “…a state may impose general income taxes upon its own citizens and residents whose persons are subject to its control…” and not ascribe legal meaning to the phrase. I begin my analysis with some questions, what is the State of Idaho? When the State of Idaho is described as a piece of dirt lying within certain geographical boundaries, dirt is in no position to control anyone; citizens, residents, persons, or sojourners. Next question: Is everybody physically present in the geographical boundaries of the State of Idaho controlled by the State of Idaho?  If you start applying the minimum contacts test of International Shoe Co. v. Washington, 326 US 310 (1945) you discover that it is not everyone physically present in the State of Idaho that is subject to the State’s control. Next I look to the Constitution of the State Of Idaho, Article I Declaration of Rights and find: 

      Section 1. Inalienable rights of man. All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.


      To me this indicates that it is not even the Citizens or residents of the geographical area of Idaho are not “subject to the state’s control” as that is the opposite to being “free”. How about this then? Those subject to the State’s control are those “the supreme court or any district courts” are authorized to issue a writ of mandate to by I.C. 7-302:

      “…any inferior tribunal, corporation, board or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station…” 


      In Total Success Invest. v. Ada Highway Dist., 227 P. 3d 942, 950 (IdahoApp. 2010) (Total Success hereafter) a proceeding involving Idaho Code § 7-302 wherein the “WaMu” was named as a defendant, it was held:

      Idaho Code § 7-302 only grants courts with the authority to issue writs of mandate against parties that owe a duty "resulting from an office, trust or station." As the district court found, WaMu does not owe such a duty. TSI conceded that WaMu was not a proper party during the hearing in 2008 but made no effort to dismiss WaMu. Id. @ 950.


      A review of all appellate decisions in Idaho involving I.C. 63-3030A reveals that appellate courts of Idaho have never discussed or diminished this requirement. With respect I.C. 7-302’s reference to “corporation, board or person” the Total Success decision sheds additional light on. It is not EVERY “corporation, board or person” courts have authority to issue writs of mandate too, but ONLY those parties that owe a duty "resulting from an office, trust or station." Interesting to note that even a “person”, a term to which I ascribe legal import and consider a term of art, must owe their duty as a result of holding an “office, trust, or station”. I state in my verified response to this Court’s alternative writ filed with this Court at paragraph 4:

      “…I am unaware of any involvement on my behalf involving an office, trust or station. I have carefully reviewed the petition of the State of Idaho looking for the establishment of my involvement in an office, trust or station. If the State of Idaho is aware of my involvement in an office, trust or station they do not set forth the facts establishing that in their petitions/complaints that I have found.”


                  Which brings me to those dastardly W-2 information forms possessed by the state, obtained by way of I.C. 63-3037, “Information returns. (a) All persons, in whatever capacity, including…employers, making payment to another person of interest, rent, salaries, wages, except as provided by subsection (b) of section 63-3035, Idaho Code, and section 63-3036, Idaho Code,…shall make returns to the state tax commission setting forth the amount of such gains, profits and income,…Such returns shall correspond to the requirements of the Internal Revenue Code”.

                  Most employers fall into the category of “millions of taxpayers” referenced in the Mitchell decision; they could care less about whether or not the people that work for them are employees as defined in 26 U.S.C. 3401(c), “Employee For purposes of this chapter, the term “employee” includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.” It would not occur to the typical “employer” that if the people that work for them are not “employees” it would not be possible for them to be their employer either.




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