Changes to the IRC in employee/employer definitions
- Hello Barry,
A quick reply in my busy day. No research, but some thoughts.......
I find this in the Cornel web site:
26 USC 7701(a)(26) Trade or business
The term trade or business includes the performance of the functions of a public office.
This seems to still be the controlling definition for the term "trade or business".
Regarding "common law definitions" it is good to keep in mind that common law is nothing more or less than case law, so all of the case law built up under the previous definitions reinforce the previous law and diminish the importance of or clarify the irrelevance of any minor changes in wording. Rumors, "common knowledge," or the whisperings of the neighbors, do not rise to the level of common law, so I don't think that anything has changed.
Phones from the USA:
"If they can get you asking the wrong questions,
they don't have to worry about answers." Thomas Pynchon
- The following information from Family Guardian is long, but on point for this discussion:
Having just completed the above paper, it occurred to me that it might be useful to summarize some of the main points covered, which go to prove that the usual interpretation of the Internal Revenue Code—both by the general public and probably a majority of researchers in the Patriot Movement—is not correct when it takes the term ‘United States,’ as used therein, to mean the whole nation, and the term ‘U.S. citizen,’ to refer to every American. Beliefs, as I have shown, which the government has done everything in its power to foster.
In my understanding, each of the twenty-one points, selected below, is prima facie evidence that the IRC does not refer to the 50 union states when employing the term ‘United States’—unless specifically stating that it is only doing so in that particular instance.
I have tried to make them somewhat self-contained, in the event that they were to be read first. A fair rebuttal, however, would have be of the full exposition of each position, and not of the synopses below.
All emphasis is added, except of code section titles, etc.
1. The Alaska and Hawaii Omnibus Acts, mandate that the IRC stop referring to Alaska and Hawaii as being ‘States,’ upon their being made states of the union. Therefore, 26 CFR 31.3121(e)-1 State, United States, and citizen [revised April 1, 1999] now reads: "(a) When used in the regulations in this subpart, the term ‘State’ includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Territories of Alaska and Hawaii before their admission as States…" They were previously, then, federal States, which is what the IRC said it applied to. Quod erat demonstrandum. (QED, ‘which was to be demonstrated.’)
2. The foregoing means that the IRC admits that it no longer applies to these two states—which, however, are constitutionally no different than the other 48 states. Therefore, the IRC applies to none of the 50 states. QED.
3. The findings of the Legislative Counsel and the Congressional Research Service, in reply to a request from Congresswoman Barbara Kennelly, state that: "The term state in 26 U.S. Code 3121 (e) specifically includes only the named territories and possessions of the District of Columbia, Puerto Rico, the Virgin Islands, Guam and American Samoa"—not the 50 states. QED.
4. Title 26 § 7621 Internal revenue districts reads: "(b) Boundaries.…[T]he President may subdivide any State or the District of Columbia, or unite into one district two or more States." This, of course, would be unconstitutional (4:3:1), if reference were being made to the 50 states. So, obviously, it is not. QED.
5. Note such instructions as this: "The term ‘United States’ means (but only for purposes of this subsection and subsection (a)) the fifty States and the District of Columbia." (Hawaii Omnibus Act, Section 29(d)(3).) Or this, from the Alaska Omnibus Act § 14(d)(2): "and by striking out ‘continental United States’ in clause (ii) of such sentence and inserting in lieu thereof ‘United States (which for purposes of this sentence and the next sentence means the fifty States and the district of Columbia)’." In the middle of a paragraph, then, we are told that the U.S. means the 50 States…but, only for 2 sentences! On other occasions it doesn’t. QED.
6. The United States District Court case Burnett v. Commissioner, which held that Subtitle A taxes apply only to Washington, D.C. and the territories. They cited 26 USC 7701(a)(9), the IRC’s general definition of ‘United States,’ and § 7701(a)(10), the definition of ‘State,’ interpreting them as in this paper. QED.
7. Only in the few instances that I mention in this paper is it stated that the term "‘United States’ means the 50 States…"—occasions which, unlike all others, clearly and obviously call for application to the whole nation. And, only on these occasions, incidentally, is the term ‘means’ used, rather than the term ‘includes.’
8. The January 1, 1961, revision of Title 26 CFR 170.59 states: "‘Includes’ and ‘including’ shall not be deemed to exclude things other than those enumerated [i.e., by the example given…by the class example] which are in the SAME GENERAL CLASS." Or, as TD 3980 (1927) puts it: "by introducing the specific elements constituting the enlargement." With the above in mind, look at the IRC’s general definition of ‘State’ at 26 USC 7701(a)(10): "The term ‘State’ shall be construed to include the District of Columbia…" Since the District of Columbia manifestly and incontestably can not be considered as being pari causa (on an equal footing and with equivalent rights) with the 50 states, it must, therefore, be a federal State. Being in a category separate from the union states, this definition, then, cannot be expanded to ‘include’ them. QED.
9. Therefore, when 26 USC 7701(a)(9) United States says that this term "includes only the States and the District of Columbia," the term ‘States’ must, perforce, mean the federal States. For, it cannot be making reference to the union states, as established, above. QED. (Most Americans would not guess that there are, or even could be, such things as federal States. But, Black’s Law Dictionary, 6th edition, clears this up, in the article ‘State.’ It differentiates two kinds. First, it designates: "The section of territory occupied by one of the United States." But, also, it refers to federal States: "Any [S]tate of the [District] United States, [comma, that means, here, ‘which is comprised of the following’] the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States [and, therefore, not a union state]. Uniform Probate Code, § 1-201(40)." (Emphasis added.) I deal with and document federal States not infrequently, in the instant paper.)
10. Title 28 § 1746, has two jurats: "(1) If executed without (outside) the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct…’" and "(2) If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct…’" Note also that they left out ‘United States’ in the second oath, after including ‘the United States of America’ in the first one. Was this to avoid people questioning what the difference between them was? Nevertheless, the point remains that there is, here, a United States of America designated as being "without (outside)" the ‘United States.’ QED.
Note that the jurat on an IRS Form 1040 does not comply with either of the two specified jurats. It avoids tipping the goverment's hand by not mentioning either the 'United States' or 'United States of America.'
11. With three exceptions, noted in the paper, the use of ‘several States’ misleadingly implies that reference is being made to the union states. A perfect example of this is found in the Hawaii Omnibus Act: "Sec. 10. Section 2 of the Act of September 2, 1937 (50 Stat. 917), as amended, is further amended by striking out the words ‘; and the term "State" shall be construed to mean and include the several States and the Territory of Hawaii’." So, before Hawaii became a union state it was on a par with the ‘several States’… meaning that they must have been federal States. For a Territory could never be termed a State, in the same sense as Nebraska. QED.
12. It is instructive to follow the transmogrification of the general definition of ‘State,’ presently found at 26 USC 7701(a)(10). (Please excuse the long word, but it seems to fit the bill like no other. Webster’s New Collegiate Dictionary defines it as "to change or alter greatly and often with grotesque or humorous effect." You be the judge.) In 1873, its forerunner stated that it "shall be construed to include the Territories and the District of Columbia…" When Alaska was admitted to the union, in 1959, 7701(a)(10) State was amended by striking out "Territories’ and substituting "Territory of Hawaii," the only remaining incorporated Territory. A few months later, when Hawaii was admitted to statehood, this was amended by striking out "the Territory of Hawaii and." So now we simply have: "The term ‘State’ shall be construed to include the District of Columbia…" Patently, a federal State. QED. And, incidentally, this further substantiates and confirms the correct interpretation of the term ‘includes,’ for these cases it can be read in no other way than as being a term of restriction.
13. In section 7 of this paper I quote an alcohol and tobacco tax act, of 1868, which reads: "…and the word ‘State’ to mean and include a Territory and District of Columbia." So, here we have the federal States referred to openly and unmistakably. Furthermore, ‘mean’ and ‘include’ are equated, which makes ‘include’ restrictive. This is bolstered in 12 USC 202 Definitions where it says: "the term ‘State’ means any State, [comma, that means, here, ‘which is comprised of the following’] Territory, or possession of [i.e., belonging to] the [District] United States…" ‘State,’ here, has to unquestionably indicate a federal State, because of the other sample examples, which are totally distinct from a union state and, therefore, cannot be in the same list with it. QED.
14. Title 28 § 5 United States defined reads: "The term ‘United States,’ as used in this title in a territorial sense, includes all places and waters, continental and insular, subject to the jurisdiction of the United States, except the Canal Zone." ‘Jurisdiction,’ here, is short for ‘complete or exclusive jurisdiction,’ as adequately documented in the instant paper. As it’s stated in the McCuller case: "land acquired for the United States and under its exclusive jurisdiction." See point 19 for more documentation of the fact that legislative jurisdiction means complete jurisdiction. QED.
15. It is more than noteworthy that lacking any statutory or regulatory authority in the 50 states, the IRS, BATF, and other alphabet soup agencies, can be required by law to apply for permission to enter these states, as registered foreign agents, pursuant to the Foreign Agents Registration Act of 1938. For they are operating under international law, not under the general, plenary powers of 4:3:2 of the U.S. Constitution, as would be the case were they in the federal zone, but rather under the specifically authorized enumerated special powers of 1:8. Does this seem like something that could happen in a single income tax jurisdiction? And look at Wyoming Sheriff Dave Mattis, who established in court that he had the legal and constitutional right to retain IRS agents in custody for operating in his county without his permission—and had done so. QED. (See section 11 for details.)
16. The Alaska Omnibus Act § 22 makes a very significant statement in subsection (b): "Section 4262(c)(1) of the Internal Revenue Code of 1954 (definition of ‘continental United States’) is amended to read as follows: ‘(1) The continental United States.—The term "continental United States" means the District of Columbia and the States other than Alaska.’" So, now that Alaska has become a union state it is no longer included in the definition of the "continental United States"—though, by implication, the islands of Hawaii still are. Code definitions, as you know, can mean anything. QED.
17. Somewhat similarly, the Hawaii Omnibus Act § 45, calls for "striking out the words ‘for the purchase within the continental limits of the United States of any typewriting machines’ and inserting in lieu thereof ‘for the purchase within the States of the Union and the District of Columbia of any typewriting machines’." For, such machines were bought from both of these new union states, when they were Territories, and, therefore, part of the ‘continental United States.’ Now, as union states they are no longer part of the territorial District United States. QED.
18. I quote the Supreme Court (Elk v. Wilkins), to the effect that: "the phrase ‘subject to the jurisdiction’ relates to time of birth, and one not owing allegiance at birth cannot become a Citizen save by subsequent naturalization….[i.e.] COMPLETELY subject to the political jurisdiction." Not having gone through the 5 year court process to do this, any state Citizen is able to avail him/herself of Form W-8 Certificate of Foreign Status, which s/he gives to her/his employer—the IRS never wants to sees it. The General Instructions read: "Use Form W-8 or a substitute form [i.e., a letter] containing a substantially similar statement to tell the payer…that you are a nonresident alien individual, foreign entity, or exempt foreign person not subject to certain U.S. information return reporting or backup withholding rules…For purposes of this form, you are an "exempt foreign person" for a calendar year in which: 1. You are a nonresident alien individual…" Notice that the term ‘payer’ is used, not ‘employer,’ which is a ‘painted word’ in tax law, and would not fit in this picture. So, where is the universally applicable income tax for all of America and all its inhabitants? If there were only one United States that the IRC applied to, how can one utilize a Form W-8 to claim that s/he is an NRA, by virtue of working and living in a union state? QED.
19. In 1957 the second volume of an extremely important study, was published by the federal government: Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas with States. A text of the Law of Legislation Jurisdiction. It established, in painstaking detail, that only persons residing within the legislative jurisdiction of the U.S. Congress are ‘residents’ of that jurisdiction—i.e., are ‘U.S. residents.’ It is made exhaustively manifest that this Congress does not extend the jurisdiction of its legislative umbrella beyond the Constitutionally restricted boundaries of territories of the United States, "belonging to" its "exclusive sovereignty" "in all cases whatsoever," e.g., the federal zone (D.C., the federal States, possessions, and enclaves). In other words, the powers of the federal government are limited to and specifically defined at 1:8:17 of the Constitution. And, just as a reminder: "‘Act of Congress’ includes [is restricted to] an act of Congress locally applicable to and in force in the District of Columbia, in Puerto Rico, in a territory or in an insular possession." (Rule 54(c), Federal Rules of Criminal Procedure.’ This takes care of the question as to whether one is a ‘U.S. resident’ or not…just as the preceding paragraph goes a long way in clarifying who is a ‘U.S. citizen.’ QED.
20. In the Internal Revenue Manual, Chapter 1100, Section 1132.75, it states: "The Criminal Investigative Division enforces the criminal statutes applicable to income, estate, gift, employment, and excise tax laws involving [District] United States citizens residing in foreign countries [like Missouri and New Hampshire] and nonresident aliens subject to Federal income tax filing requirements [e.g., Oregonians having federal U.S. source income, say, from Treasury Bonds]. If my bracketed suggestions are not on the mark, then the CID would be acting outside its delegated authority, defined above, and only above, in proceeding as it does. In other words, one could then ask where there is reference to Americans living and working in the USA. The ‘U.S. citizen’ part is explained by everyone’s swearing on a Form 1040 that s/he is ‘U.S. citizen,’ for tax purposes. And, I have established that from the point of view of private international law the union states are 50 countries foreign to one another, as well as to their agency, the District United States. QED.
21. Lastly, the supremely important Brushaber case and the resultant Treasury Decision 2313, of 1916. This can be summarized briefly, without distorting the situation. Frank Brushaber thought that he was outside the tax forum contractus of the federal government, due to his living and working in New York—meaning that he was not a resident in, or of, the U.S., and was alien to its jurisdiction, i.e., a nonresident alien, which this the Court never contested. His error was in believing that the Union Pacific RR Co. was also outside this tax forum. Consequently, in the first sentence he "enjoined the corporation from complying with the income tax provisions of the tariff act of October 3, 1913…" He contended that the Union Pacific was incorporated in a union state. But he overlooked the fact that Utah was still a federal territory in 1862 and, therefore, domestic to the District U.S. Therefore, he was obligated to pay an excise tax (which, incidentally, is what the Brushaber case determined that income tax was) for the privilege of earning money from a corporation resident in the federal zone—i.e., having been incorporated by an act of Congress. It is exceedingly important to note that no money he earned in his home state was exacted, or even mentioned. What this all means is that a state Citizen, who, therefore, is a nonresident alien with respect to the District U.S., has no tax liability if he has no income that is "received from sources within the [District] United States." (26 USC 871(a)(1))…which includes, thereby, being a federal employee. But the real jewel of this whole scenario is Treasury Document 2313, which I have reproduced in the Appendix. It states that it was promulgated specifically to implement the Brushaber case. In crystal clear language, it proceeds along in perfect harmony with the IRC today, as seen in § 872 Gross Income: "In the case of a nonresident alien individual…gross income includes only (1) gross income which is derived from sources within the [District] United States… And, of course "[a]n individual is a nonresident alien if such individual is neither a citizen of the [District] United States nor a resident of the [District] United States." (26 USC 7701(b)(1)(B). Because this TD is referencing the Brushaber case exclusively, it can not be disputed, by any logical acrobatics, that Brushaber’s status—i.e., living and working in a union state—was accepted by the Court as exemplifying the criteria that define a nonresident alien. Which status is exactly like that of most Americans today. Otherwise, why was he only obligated to pay income tax on the dividend earnings from a District U.S. corporation, and not on any earnings from his home state, New York. Therefore, when § 872, above, says "from sources within the United States" it can only be interpreted to mean ‘within the District U.S.’ QED.
The key to 3121 is the definition of State. It does not include the 50 states.
I have an image of a letter from congresswoman Barbara Kennelly from Connecticut dated January 24, 1996, that states:
The term state in 26 U.S. Code 3121(e) specifically includes only the named U.S. territories and possessions of the District of Columbia, Puerto Rico, the Virgin Islands, Guam and American Samoa.
- Bob or the group,
I like your work below but I have ONE question. Do you or anyone in the group know for sure whether Frank Brushaber was a Citizen of New York or some say he was French or some say he was the U.S. agent for a foreign principal and have any documentation to prove it.
If you or anyone has any source info on his true standing in court I would love to see it. I have tried to find the info in the New York district online with Loislaw and other search engines but have not been successful.
I live in Florida so getting physically to New York is not easy.
BOB GREGORY wrote:
The following information from Family Guardian is long, but on point for this discussion:
I have searched for the original pleadings in the case without success.
I am not sure what the importance of Brushaber's state citizenship is, but since he is alleged to have been from New York and the headquarters of the Union Pacific Railroad was in New York, it is possible that the case was originally filed in a New York state court and not a federal district court. The court apparently considered him to have standing, since it did not rule based on that issue. That court then dismissed the case for failure to state a claim and Brushaber obviously appealed directly to the Supreme Court because of the constitutional question. The certiorari crap we deal with today did not exist then in the same form.
The case was not directly about income tax. The railroad was a federally chartered corporation and thus subject to the 1909 corporate excise tax. It paid dividends on its stock or corporate bonds and was obligated by the 1913 income tax law to withhold taxes from those dividends before payment to the stock or bond holders. Brushaber objected to this, possibly because he objected to double taxation (corporate and individual) or possibly because he read and understood the 1913 income tax law correctly and figured that he was not subject to it as a state citizen or as an alien (depending on which he was). It could be that he figured that as a nonresident alien (citizen of a state and not of a federal area) he would owe no income tax and thus did not want the corporation to withhold the tax and make it necessary for him to file for a refund. This is just my personal guess.
The Treasury Decision issued as a result of this case ( T.D. 2313) considered Brushaber a "nonresident alien," and since he apparently lived in New York, he was not a nonresident alien for the reason that he was not a U.S. citizen and lived in another nation. Even if he was not a U.S. citizen, the fact that he was living in New York would have made him a resident alien. Thus his classification as a nonresident alien had to be because he did not live in the District of Columbia or a federal territory or possession. This is one of the many reasons cited by the article at the Family Guardian site (http://famguardian.org/Subjects/Taxes/ChallJurisdiction/Definitions/21Points.htm) to show that the term "states" in most of 26 USC does not refer to the several states of the union.
It is interesting that the 1909 corporation tax was NOT an income tax but an excise tax with the amount of tax measured by the amount of the corporation's net income. This tax was on FEDERAL corporations as an excise on the PRIVILEGE of being chartered by the federal government and has been sneakily expanded to state chartered corporations with no apparent authority. The Supreme Court defined "income" as "corporate profit" and as a "return on capital." Later the court said the the definition of "income" as it applied to the 1909 corporation tax was also the same in every income tax law later passed by Congress and that Congress, having used the term "income" in the 16th Amendment, had made its definition and interpretation the province of the Supreme Court and could not, therefore, create a definition for the term "income." The IRS regularly ignores this. One way it has ignored this is to create a definition for "gross income."
- It seems the employee/employer nexus revolves around the idea (mis-
belief) the government (or what passes for the government) assumes it
has some kind of Divine Right to meddle or otherwise interfere with
private contracts between two private individuals within the 50
states (republics) party to the Constitution. Where does this
assumption come from? Why do people assume the government has this
"right" or authority? When looked at like this it makes no sense
- 26 CFR § 1.1402(c)-3 Employees.
(a) General rule.
Generally, the performance of service by an individual as an employee, as defined in the Federal Insurance Contributions Act (Chapter 21 of the Internal Revenue Code) does not constitute a trade or business within the meaning of section 1402(c) and §1.1402(c)1. However, in six cases set forth in paragraphs (b) to (g), inclusive, of this section, the performance of service by an individual is considered to constitute a trade or business within the meaning of section 1402(c) and §1.1402(c)1. (As to when an individual is an employee, see section 3121 (d) and (o) and section 3506 and the regulations under those sections in part 31 of this chapter (Employment Tax Regulations).)
The 6 cases are not cohesive and include newspaper vendors, sharecroppers [isn't it nice to see we tax the poorest of the poor!!], employees of a foreign government, ministers and members of a religious order, gov't employees paid solely on a fee basis, and most commercial fisherman.
§ 1.861-4 Compensation for labor or personal services.
(a) Compensation for labor or personal services performed wholly within the United States.
(1) Generally, compensation for labor or personal services, including fees, commissions, fringe benefits, and similar items, performed wholly within the United States is gross income from sources within the United States.
(i) The labor or services are performed by a nonresident alien individual temporarily present in the United States for a period or periods not exceeding a total of 90 days during his taxable year,
(ii) The compensation for such labor or services does not exceed in the aggregate a gross amount of $3,000, and
(iii) The compensation is for labor or services performed as an employee of, or under any form of contract with
( a ) A nonresident alien individual, foreign partnership, or foreign corporation, not engaged in trade or business within the United States, or
( b ) An individual who is a citizen or resident of the United States, a domestic partnership, or a domestic corporation, if such labor or services are performed for an office or place of business maintained in a foreign country or in a possession of the United States by such individual, partnership, or corporation.
(2) As a general rule, the term "day", as used in subparagraph (1)(i) of this paragraph, means a calendar day during any portion of which the nonresident alien individual is physically present in the United States.
(3) Solely for purposes of applying this paragraph, the nonresident alien individual, foreign partnership, or foreign corporation for which the nonresident alien individual is performing personal services in the United States shall not be considered to be engaged in trade or business in the United States by reason of the performance of such services by such individual.
(4) In determining for purposes of subparagraph (1)(ii) of this paragraph whether compensation received by the nonresident alien individual exceeds in the aggregate a gross amount of $3,000, any amounts received by the individual from an employer as advances or reimbursements for travel expenses incurred on behalf of the employer shall be omitted from the compensation received by the individual, to the extent of expenses incurred, where he was required to account and did account to his employer for such expenses and has met the tests for such accounting provided in §1.16217 and paragraph (e)(4) of §1.2745. If advances or reimbursements exceed such expenses, the amount of the excess shall be included as compensation for personal services for purposes of such subparagraph. Pensions and retirement pay attributable to labor or personal services performed in the United States are not to be taken into account for purposes of subparagraph (1)(ii) of this paragraph.
(5) For definition of the term "United States", when used in a geographical sense, see sections 638 and 7701(a)(9).
Section 638 is not very straightforward. But "United States" is simply defined in 26 USC 7701 as:
(9) United StatesThe term "United States" when used in a geographical sense includes only the States and the District of Columbia.
[This provides rule making authority for 26 CFR 1, 300, and 301]
I have discovered that many important jewels of info are often found
in the "not this" sections, especially the 1400 sections.
They can't be quite as evasive and vague when trying to
describe that which is not, as compared to the "includes."
--- In firstname.lastname@example.org, "Barry" <bear@...> wrote:
> I got an email saying the following:
> I'm presently trying to put together some research for an upcoming local
> State tax hearing which caused me to review the code. I was surprised to
> find some changes that seem to be an attempt at expanding the
> definitions of the terms in 3121 of the code. "Trade or Business" has
> been removed to its own rather long section- 162 and the definitions of
> "employee" have been changed to include "common law definitions." At CFR
> § 31.3121(d)-1 Who are employees there is a many pages description
> of who is an employee that doesn't seem to define an employer but
> describes pretty much any usual relationship as regular people use the
> terms. Please, check out these changes and maybe you can say on the list
> what you think they mean and how they might affect us!
> I haven't made time to do this, but, I thought I would submit it
> here and see if anyone else has seen this problem and dealt with it.
> Phone Contact: 720-675-7230
> Best times to call: 8:30 am-9:00 pm MST
> Bear's Pages: www.irsterminator.com <http://www.irsterminator.com/>
> www.legalbears.com <http://www.legalbears.com/> www.legalbearsblog.com